South Carolina: Striking of gay marriage ban trumps state resistance

A federal judge struck down South Carolina’s ban on same-sex marriage Wednesday, opening the door to gay marriage in a state that has been one of the most resistant to LGBT rights.

Federal Judge Richard Gergel issued a 26-page ruling in favor of Charleston couple Colleen Condon and Anne Bleckley, who filed suit against Gov. Nikki Haley and Attorney General Alan Wilson after being denied a marriage license last month. The 4th Circuit, wrote Gergel, “unambiguously recognized a fundamental right of same-sex couples to marry and the power of the federal courts to address and vindicate that right.”

Haley and Wilson have vigorously fought same-sex marriage in the state. They argued that a state constitutional amendment passed by voters in 2006 banning same-sex marriage shielded their stance, despite the 4th Circuit decision that such bans are unconstitutional and the Supreme Court’s refusal in October to override that ruling.

Gergel issued a stay on the ruling, which will expire on Nov. 20 if it isn't appealed.

While the decision means South Carolina will likely join the growing number of states that allow same-sex unions — 33 as of yesterday, when the Supreme Court lifted a stay on gay marriage in Kansas, although that state’s governor and attorney general are contesting that decision — gay marriage advocates say the issue needs scrutiny from the U.S. Supreme Court.

In South Carolina, where history is long when it comes to rebuffing federal intervention, stubbornness marks both sides on the issue.

“We’ve applied for a marriage license six times now,” Greenville resident Ivy Hill said prior to Gergel’s ruling. “And obviously all six times, we’ve been denied … It sends a message that we are less than, that we are less than human and don’t deserve the same rights as our neighbors and our friends and our families.” 

Same-sex marriage gained a legal toehold in the state in June 2013, when the Supreme Court struck down a key section of the Defense of Marriage Act on the grounds that it violated lesbians’ and gay men’s right to equal protection under the law. Since then, many federal district and appellate courts have struck down states’ gay marriage bans as unconstitutional.

Last week, however, the 6th Circuit Court of Appeals bucked the trend, upholding gay marriage bans in Michigan, Ohio, Pennsylvania and Kentucky. As a result, the issue is now virtually assured to go to the U.S. Supreme Court.

Same-sex couples in South Carolina saw an opening to undo the state’s ban in early October, when the U.S. Supreme Court let stand a 4th Circuit decision that same-sex-marriage bans are unconstitutional. All the other states under the Fourth Circuit’s jurisdiction — Maryland, North Carolina, Virginia and West Virginia — have legalized same-sex marriage.

Wilson, South Carolina’s top attorney, has refused to budge on the issue, however, saying the courts should stay out of it. “Marriage has always been understood as being limited to opposite-sex couples until the very recent legislative and judicial consideration of same-sex marriages,” he said in a memo in support of his request for a stay of the appeals court decision. “This basis for marriage which has been rooted in law, custom and societal relationships is a rational basis for limiting marriage to opposite-sex couples. Any change in this definition should come from the legislature and the voters rather than the judiciary.”

Attorney John Nichols, who represents Condon and Bleckley, said Haley could have followed the lead of governors in Georgia, North Carolina, West Virginia and “any number of these states that have decided that state resources are better spent on issues that really impact everyday citizens rather than defending that which is not defensible.”

Five years from now, he predicted, the average South Carolina voter won’t even be thinking about same-sex marriage.

In 2006, 78 percent of South Carolina voters favored a constitutional amendment limiting recognition of marriage to unions between one man and one woman. Last year Haley said that she agreed with that definition and that her job was to uphold the state’s constitution. “I’m going to stand by the people of this state, stand by the constitution. I’m going to support it and fight for it every step of the way,” she said.

Today, however, there are indications South Carolinians are warming to the idea of same-sex marriage, according to a Winthrop University poll taken last year. About 52 percent of those surveyed said they didn’t believe same-sex marriages should be recognized as legally valid, while about 39 percent said they should be recognized. Nationally, about 54 percent of Americans support same-sex marriage, according to the Pew Research Center.

Derek Black, a constitutional professor of law at the University of South Carolina, said before Gergel’s ruling, “I can’t see any sort of circumstances under which South Carolina has a legal defense for its prohibition of gay marriage. At the end of the day, there is no way the state will win.”

“We have seen over two dozen federal court rulings on it the last year to 15 months, a vast majority of which have struck down these marriage bans and ruled them unconstitutional,” said Charlie Joughin, a spokesman for the Human Rights Campaign, an LGBT rights organization. Federal court judges appointed by both political parties are agreeing that the marriage bans are discriminatory, he said.

“Ultimately, we believe that the issue does need to be resolved nationwide, so hopefully, the U.S. Supreme Court will take up the issue and decide once and for all and decide these marriage bans don’t pass constitutional muster,” he said.

It’s a prospect that couples like Hill and Gibson are anxiously awaiting.

After Gergel’s decision, Hill plans on applying for a marriage license for a seventh time.

“It’s been really hurtful, especially seeing other states in the 4th Circuit following the law and South Carolina holding out as long as they can, to the bitter end,” she said. “This is home to us, and we have no intention of leaving. We love it here. But it’s hurtful to know we’re still not seen as equal citizens here and our elected officials are fighting to keep that in place.”