Michael Justus / Spartanburg Herald-Journal / AP

South Carolina lawmakers seek to roll back marriage equality

Three months after state’s same-sex marriage ban was struck down, four bills propose chipping away at marriage equality

It’s been less than three months since same-sex marriage was legalized in South Carolina, but conservative lawmakers are already pushing to permit government employees to discriminate against same-sex couples on the basis of religious beliefs.

At least four bills have emerged with the start of the state’s new legislative session, all seeking to undermine a November federal court ruling that ushered in same-sex marriage in a state that has been very resistant to it. The new bills seek to allow exemptions for employees of judges and court clerks who don’t want to issue same-sex marriage licenses on the basis of their religious beliefs, prevent punishment of state employees who refuse to provide goods or services to same-sex couples and bar using taxpayer dollars — including government salaries — for activities supporting same-sex marriages. One bill even seeks to amend the U.S. Constitution to say marriage is between one man and one woman.

One conservative state lawmaker said the bills are aimed at providing choice to state employees who are opposed to gay marriage.

“We don’t want people to have to choose between their faith and their public service,” state Sen. Lee Bright told Al Jazeera America. Bright, a Republican who represents Greenville and Spartanburg counties, has put forward the proposal to allow state worker exemptions for religious beliefs.

“There have been some judges in North Carolina who have retired due to the verdict,” he said. “There are definitely folks who do not want to be involved in the process, and I don’t blame them. I share their views.”

A U.S. District Court judge ruled on Nov. 12, 2014, that South Carolina’s ban on gay marriage was unconstitutional but stayed his decision until Nov. 20. After the U.S. Supreme Court denied a request to extend the stay, Lexington County Probate Justice Daniel Eckstrom attempted to disregard the decision. He released a statement that day citing a state constitutional amendment, passed in 2006 by 78 percent of South Carolina voters, declaring that marriage recognition would be limited to unions between one man and one woman.

“The state of South Carolina is still defending our state constitution in the U.S. Supreme Court,” he said in the statement. “I respect the rule of law, and until this matter is conclusively resolved — or unless otherwise directed — the Office of the Lexington County Probate Court continues to abide by our state constitution and statutes.” He reversed his stance later that day. 

Same-sex marriage advocates have slammed the bills. Jeff Ayers, chairman of the board of South Carolina Equality, a LGBT rights organization, said lawmakers proposing these bills want to institutionalize discrimination and bigotry across the board. “They’re just slow in coming in line with the rest of the country. Unfortunately, South Carolina has a history with that,” he said.

“When you try to hide behind that religious exemption clause, where do you stop with it?” he asked.

But the bills aren’t surprising, said Sarah Warbelow, legal director for Human Rights Campaign, a nonprofit LGBT advocacy group. “From state to state, the actions that legislatures are taking — introducing bills — do vary somewhat significantly. It’s clear that the intent is the same, which is to strip away protections from LBGT people,” she said.

She said politicians in some states have proposed bills that would permit religious individuals and entities to discriminate against LGBT people in a wider context than marriage.

And there will likely be significantly more such bills introduced, she said. “I don’t think the majority of them will pass, in part because many of them are unconstitutional,” Warbelow said.

Columbia, South Carolina, attorney John Nichols, who successfully represented same-sex couples seeking recognition in South Carolina of their out-of-state marriages, said the crop of state bills aimed at circumventing the U.S. District Court rulings would only open up the state to financial penalties.

“There is a statute that says that if the state takes a position ‘without reasonable justification,’ it must pay attorney fees and costs if someone sues and wins,” he said. As for the bid to amend the U.S. Constitution, it’s a far-fetched idea that would require two-thirds of each house of Congress to seek an amendment and ratification by 38 states, he said.

“The [Supreme] Court will be concerned with the version of the Constitution we currently have and not with these attempts to overturn the District Courts by legislative fiat,” Nichols said. “It’s just basic civics,” he said. “Seventh-graders learn this stuff. Why can’t grown-ups remember it?”

Bright acknowledged that the Supreme Court’s decision to consider same-sex marriage later this year could undermine momentum for his proposal. He proposed the bill before the high court agreed last month to weigh in on the issue. “The fact the Supreme Court is going to hear the case may slow down the desire to get some protections” for those objecting on religious grounds, he said. “Obviously, if the Supreme Court struck [the District Court’s decision] down, we would celebrate and move on.”

In the meantime, gay rights advocates like Ayers will be watching to see where these legislative attempts lead on the state level. While no one expects them to gain traction, he said, if they pass, “we would immediately file a lawsuit on the basis of it being unconstitutional.” 

“And,” he said, “we know we would win.”

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