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Same Sex Marriage Is (Almost) Legal in South Carolina

Posted by Jenny R. Stevens | Nov 12, 2014 | 0 Comments

Yesterday, a historic decision was handed down in South Carolina by United States District Court Judge Richard M. Gergel in the same sex marriage case filed by Charleston Attorney Colleen Condon and her fiancee, Nichols Bleckley. In his decision, Judge Gergel issued an injunction against Attorney General Alan Wilson and all probate judges from “enforcing SC Constitution Art. XVII, § 15, SC Code Ann., §§20-1-10 and 20-1-15 or any other state law or policy to the extent they seek to prohibit the marriage of same sex couples; and interfering in any manner with Plaintiffs‘ fundamental right to marry or in the issuance of a marriage license to Plaintiffs; and/or refusing to issue to Plaintiffs a marriage license if, but for their sex, they are otherwise qualified to marry under the laws of South Carolina.”  He went on to issue a one-week stay (which will be lifted on November 20, 2014 at 12:00 noon, absent any further orders from a higher court) to allow for appeals to be delivered to the Fourth Circuit, should Attorney General Wilson decide to pursue such an appeal.

The facts in this matter are virtually undisputed. Condon and Bleckley applied for a marriage license from the Charleston Probate Court following the now infamous Fourth Circuit opinion inBostic v. Schaeffer written by Judge Henry Floyd (of Spartanburg, South Carolina), however that same day South Carolina's Attorney General initiated an action in the original jurisdiction of the South Carolina Supreme Court seeking an injunction prohibiting Condon and Bleckley from receiving a marriage license, despite the fact that they had submitted the requisite forms and paid the requisite fee per the statute, until a pending federal constitutional challenge had been heard and decided.  The SC Supreme Court accepted this jurisdiction, but only for the purposes of entering an order enjoining SC probate judges from issuing marriage licenses to same sex couples pending the legal challenges in the US District Court for the District of South Carolina.

In his decision, Judge Gergel frequently cited Judge Floyd's Fourth Circuit opinion and also referenced as support the fact that the US Supreme Court denied hearing the Bostic appeal from the Fourth Circuit decision.  Speaking to Attorney General Wilson's passionate arguments regarding precedent and his position that the Court should have considered the US Supreme Court's 1972 decision in Baker v. Nelson, Judge Gergel writes

“While a party is certainly free to argue against precedent, even very recent precedent, the Fourth Circuit has exhaustively addressed the issues raised by Defendants and firmly and unambiguously recognized a fundamental right of same sex couples to marry and the power of the federal courts to address and vindicate that right. Regardless of the passion of Bostic's opponents, the predictability and stability of our judicial decision-making is dependent upon lower courts respecting and enforcing the decisions of higher appellate courts. Not every decision is heard and decided by the United States Supreme Court (in fact very are), and lower federal courts are not free to disregard clear holdings of the circuit courts of appeal simply because a party believes them poorly reasoned or inappropriately inattentive to alternative legal arguments. Coherent and consistent adjudication requires respect for the principle of stare decisis and the basic rule that the decision of a federal circuit court of appeals left undisturbed by United States Supreme Court review is controlling on the lower courts within the circuit.”

What does this mean for same-sex couples in South Carolina? Essentially, barring any further rulings or orders from a higher court, as of high noon on November 20, 2014, Ms. Condon and Ms. Bleckley will be allowed to pick up their marriage license from the Charleston County Probate Court, along with any other couples who applied the same day and we could potentially see the first legal same-sex marriage take place that afternoon.  The significance, however, is not just for same-sex couples in South Carolina, but this decision has reaffirmed the fact that marriage is a fundamental right for all South Carolina citizens which cannot be trampled by statutes which define or regulate marriage.

About the Author

Jenny R. Stevens

Managing Partner


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