Gay marriage likely to stay illegal in SC several more years at least

jmonk@thestate.comJanuary 29, 2014 

— If South Carolina’s state law against gay marriage is overturned, it won’t happen for possibly several more years, legal experts say.

That’s because dozens of federal lawsuits seeking to overturn same-sex marriage bans – which have been filed in various states – are now slowly making their way through the federal court system to a likely but distant rendezvous with the U.S. Supreme Court. That court will be the ultimate decider.

“We have a bunch of cases spread across the nation right now, and they are all pending at the trial court, except for ones in Utah and Oklahoma,” said University of South Carolina School of Law professor Derek Black.

Because of the time it takes to appeal cases – a process that involves writing briefs and possible oral arguments and more appeals – Black estimated it could be as late as 2017 before the lower federal court cases reach the U.S. Supreme Court for arguments or a decision.

The Utah and Oklahoma cases are now in the early stages of appeal to the 10th Circuit Court of Appeals. That court, one step below the U.S. Supreme Court, has put the two cases on the fast track, meaning it might hear arguments and make a decision by the end of this year. The 10th Circuit Court of Appeals handles cases in Oklahoma, Colorado, Kansas, New Mexico, Wyoming, and Utah.

Having decisions come out of conservative states that overturned their states’ same-sex marriage bans wasn’t expected, some say.

“People were really surprised,” said Carl Tobias, constitutional law professor at the University of Richmond in Virginia.

The basis for the recent surge in lawsuits challenging state bans on same-sex marriage was a U.S. Supreme Court decision last summer.

In that case, known as Windsor, the high court struck down the Congressional Defense of Marriage Act. Its ruling had the effect of eliminating discrimination against married same-sex couples in matters such as federal marriage benefits and tax filings. However, it did not apply to individual states.

Following the Windsor ruling, lawsuits began to be filed around the country challenging state same sex marriage bans – including a lawsuit in South Carolina.

That non-jury suit was filed Aug. 28 by Katherine Bradacs, a S.C. Highway Patrol trooper, and Tracie Goodwin, a former deputy with the Richland County Sheriff’s Department. Their suit challenges the state’s Defense of Marriage Act and, at the same time, the state constitutional amendment that bans gay marriage.

Bradacs and Goodwin, who live in Lexington County, were legally married in the District of Columbia in 2012, but in South Carolina are treated as “legal strangers” who are denied the same rights and legal benefits that married heterosexuals have, their lawsuit says.

In an answer, filed in federal court, the defendants in that lawsuit – Gov. Nikki Haley and Attorney General Alan Wilson – say that, under the state’s Defense of Marriage Act, South Carolina is not required to recognize same sex marriages and that to require the state to recognize such marriages would be contrary “to the sovereign interests of the state.”

U.S. Judge Michelle Childs is presiding over the Bradacs-Goodwin case. No hearing date has yet been set. The earliest it could be heard would likely be late March.

Although federal judges in Utah and Oklahoma have struck down those states’ gay marriage bans, the Oklahoma federal judge has stayed his decision until the Supreme Court rules on the matter.

In Utah, Supreme Court Associate Justice Sonia Sotomayor, writing for the court, stayed the federal judge’s decision and let Utah keep its gay marriage ban while appeals are being made.

“She basically said overturning a state’s marriage law is such a huge move that we’ll respect the state’s right to enforce its own law until we hear the case,” Black said.

Asked for a prediction on how the Supreme Court might eventually rule, Black said, “My guess is the Supreme Court is going to overturn these state bans.”

The Windsor decision “really doesn’t leave much of a rationale” to support a ruling that allows states to ban same-sex marriage, Black said.

Tobias, too, said that the Windsor decision indicates the Supreme Court will strike down state bans. “It’s more than possible, I think it’s likely,” he said.

However, the Supreme Court could somehow bow to the fact that states by law and custom define marriage, Black said. “We are dealing with an area of the law that is reserved primarily to the state – which gives them arguments to work with.”

Black added, “But just because it is an area of state regulation, that doesn’t mean states can discriminate.”

Same-sex marriage is now legal in 17 states and the District of Columbia. Four states – New Jersey, Hawaii, Illinois and New Mexico – accepted same-sex marriage following last summer’s Windsor decision.

Up to 40 federal lawsuits challenging state same-sex marriage bans are pending in North Carolina, Virginia and 16 other states in addition to South Carolina, according to various estimates.

Meanwhile, there’s no serious effort by any of the 170 state lawmakers in South Carolina’s socially conservative state Legislature to do away with a ban on same-sex marriages.

“I think everybody is waiting to see how the issue is adjudicated in the federal courts,” Senate President Pro Tem John Courson, R-Richland, said earlier this week.

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