SC same-sex marriage ban overturned by federal judge

Federal Judge Richard Gergel of Charleston overturned state law and ruled Wednesday that couples of the same sex have a right under the U.S. Constitution to marry in South Carolina.

Gergel’s decision is the first ruling in a South Carolina federal court that clearly states that state government has no compelling interest – nor does it have a right – to ban same-sex marriages.

“State laws that run contrary to constitutionally protected rights of individuals cannot be allowed to stand,” wrote Gergel, striking down a 2006 amendment to the state constitution that said that only marriages between a man and a woman are legal and valid, as well a 1996 state law that outlawed gay marriages.

In his 26-page ruling, filed shortly after 9 a.m. Wednesday, Gergel quoted from the 4th U.S. Circuit Court of Appeals’ decision in a Virginia case, saying it clearly refuted arguments made by South Carolina Gov. Nikki Haley and Attorney General Alan Wilson. In that decision, the 4th Circuit overturned a Virginia ban on gay marriage that was similar to South Carolina’s. The 4th Circuit is an appellate court that covers Virginia, West Virginia, Maryland, North Carolina and South Carolina. South Carolina was the final state in the circuit whose officials will not permit gay marriages.

Gergel, who was nominated to the federal bench by President Barack Obama, also appeared to scold Wilson and Haley, saying the 4th Circuit ruling was the “controlling authority” and that is a well-known legal principle. Gergel also wrote that Wilson misunderstood or misapplied numerous matters of apparently settled law in seeking to deny a Charleston couple the right to be issued a marriage license.

However, Gergel did dismiss Haley as a defendant in the lawsuit, saying that she – unlike Wilson – had taken no direct action to stop the couple, Colleen Condon and Ann Bleckley, from getting married.

Attorney general to appeal ruling

Same-sex marriages won’t begin immediately; Gergel granted a one-week stay in his decision, until Nov. 20, to give Wilson time to appeal to the 4th Circuit.

Wilson said he immediately will appeal Gergel’s decision, saying he has a “constitutional obligation ... to defend South Carolina law.”

Malissa Burnett, one of the lawyers for the Charleston couple, said, “It’s interesting that the attorney general can wear blinders and ignore the U.S. Constitution, which is the law of the land and selectively favor the constitution of one state. This is the United States – South Carolina is trying to be a republic.”

Wilson also noted that the 6th U.S. Circuit Court of Appeals recently upheld state bans on gay marriage, making it likely that the U.S. Supreme Court may ultimately hear the case. “This office has an obligation to defend state law as long as we have a viable path to do so.”

North Carolina’s legislative leaders have hired private lawyers – Robert Potter of Charlotte, among them – to also appeal to the 4th Circuit. While they have given official notice of their intent to appeal, they have not filed briefs. Meanwhile, same-sex marriages continue to take place.

Given that the 4th Circuit has already ruled against the ban in Virginia, legal experts consider it unlikely the appeals court’s opinion will change on new appeals. Even without a favorable ruling from the 4th Circuit, the efforts to preserve same-sex marriage bans in the Carolinas could be appealed to the U.S. Supreme Court.

In South Carolina on Wednesday, the ruling was a historic victory for Condon and Bleckley, who applied for a marriage license Oct. 8 at the Charleston County probate court and paid the filing fee. Later that day, Wilson got the S.C. Supreme Court to issued an order barring any probate judge from issuing a marriage license to a same-sex couple until the matter was settled in a South Carolina federal court.

Meanwhile, more than 40 federal court opinions in more than 25 states have ruled against bans on same-sex marriages.

In his decision, Gergel specifically overturned a same-sex marriage ban amendment to the S.C. Constitution passed by a huge majority of South Carolinians in 2006. That amendment passed by a 78-22 percent majority.

Last month, the U.S. Supreme Court refused to hear the appeal of a 4th Circuit decision allowing same-sex marriage in Virginia.

Wilson made numerous arguments to Gergel about why federal courts should have no say in whom the South Carolina government allows to get married. Whether a state can ban same-sex marriage is a state, not a federal, matter, he argued.

Wilson also argued that state legislatures, not judges, should define who can get married in each state.

Gergel’s ruling rejected all Wilson’s arguments, especially Wilson’s argument that legislatures should make laws defining basic constitutional rights. “One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote,” Gergel wrote, quoting the Virginia decision.

This story was originally published November 12, 2014 at 9:58 AM.