Attaining same-sex marriage and equal rights for the Lesbian,
Gay, Bisexual & Transsexual (LGBT) community in South Carolina
Part 1: 1996 until 2014: Two decades of events
same-sex couples in South Carolina.
1996 to 2014-OCT-05: Refusal to recognize same-sex relationships in South Carolina (SC):
- 1996: The SC House of Representatives passed a marriage bill to restrict marriage to one woman and one man. The vote was 82 to 0. The Senate passed the bill on a voice vote. Governor David Beasley (R) signed the bill into law.
- 2005: In order to make the ban on same-sex marriage, civil unions, etc. immune to decisions by state courts, the SC Legislature started the process to amend the state Constitution. The legislature proposed Amendment 1 which stated:
"... that in this State and its political subdivisions, a marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized." 1
The Amendment was designed to make same-sex marriages, civil unions, and domestic partnerships unavailable to same-sex couples in the state.
- 2006-NOV: Voters overwhelmingly passed Amendment 1 to the South Carolina state Constitution on election day. The vote was 78% in favor and 22% opposed. It restricted marriage to the union of one woman and one man. Loving, committed same-sex couples in the state were considered "legal strangers." This is a legal term meaning that the government does not recognize the existence of their relationships. They are considered by the state as mere roommates. Same-sex couples in SC who were legally married in another state are considered legal strangers as well. 1,2
- 2013-JUN-26: The U.S. Supreme Court issued its ruling in Windsor v. United States. It found Section 3 of the federal Defense of Marriage Act to be unconstitutional and unenforceable. That section had prohibited the federal government from recognizing same-sex marriages that had been legally solemnized in the U.S. Section 3 of the Act prevented same-sex spouses and their children from accessing 1,138 federal government plans, protections and benefits. The majority decision was written by
Justice Anthony Kennedy in a way that gives judges and lawyers excellent arguments for the legalization of same-sex marriage in individual states.
- 2013-JUL-18: Private lawyers in Virginia filed a federal lawsuit on behalf of Timothy Bostic and Tony London. The couple had earlier attempted to obtain a marriage license in Virginia and were refused because they were both males. The couple is seeking the right to marry through the federal court system. The case was later renamed Bostic v. Schaefer and was destined to play a major role on legalizing same-sex marriage in the adjacent states of West Virginia, North Carolina and South Carolina.
- 2013-AUG-28: A lawsuit was filed in the U.S. District Court for the District of South Carolina, Southern Division. It is titled: "Bradacs v. Haley." Katherine Bradacs, a state Highway Patrol officer, and Tracie Goodwin, a disabled USAF veteran were married in Washington, DC, during 2012-APR. They are raising three children. Defendants are Governor Nikki Haley (R) and state Attorney General (R) Alan Wilson. in their official capacities. The brief filed by John Nichols, their lawyer, stated that:
"They are treated as legal strangers in their home state of South Carolina."
Thus if Officer Bradacs dies while on duty, Ms. Goodwin would not receive financial support from the state that opposite-sex couples would receive.
This suit is really about equal treatment of all South Carolina citizens under the law. We should value people who want to live in a committed relationship, regardless of gender" 5
Spokesperson for Governor Haley, Doug Mayer, said:
"Gov. Haley, like the majority of South Carolinians, supports traditional marriage as defined between one man and one woman, and in accordance with state law, will continue to uphold those values."
>>>>The case was stayed, pending a ruling in the Virginia case, Bostic v. Schaefer.
- 2014-FEB-13: District Court Judge Arenda L. Wright Allen issued her decision in the Virginia case: Bostic v. Schaefer. She ruled that Virginia's ban on marriages by same-sex couples violated the 14th Amendment of the U.S. Constitution and was thus void and unenforceable. The decision was stayed, to prevent same-sex couples from immediately marrying. It was appealed to the U.S. Supreme Court on 2014-AUG-06.
In an article in the American Thinker titled "Homosexual Marriage and the Conceit of Arenda L. Wright Allen," author by J. Robert Smith wrote:
"The people's will has been trampled yet again by a federal judge. The Commonwealth of Virginia, you see, has no right to a law banning homosexual marriage. So decided Obama-appointed judge, the Honorable Arenda L. Wright Allen. ... Make no mistake, Wright Allen's ruling injures. It further aggrieves federalism. It's high-handed, in that an unelected judge in a federal court is attempting to make law for over eight million Virginians. It seeks to settle an issue through judicial fiat that hasn't been settled within the culture or society or the states."
There must obviously exist in law some methanism by which a court can evaluate whether a particular amendment to a state Constitution is valid or not. Such a method is needed in order to declare unconstitutional any amendments that violate the superior document, the federal Constitution. A state court cannot declare part of the state Constitution to be invalild. In his article, Smith did not offer any ideas on how such an evaluation can be made other than by a federal court.
2014-OCT-05: Status of same-sex marriage in South Carolina and in the rest of the U.S.:
As of this date, same-sex couples could routinely obtain marriage licenses and subsequently marry in 19 states and the District of Columbia. South Carolina was not one of these states. The only recognition that South Carolina offered such couples was visiting privileges at medical facilities.
At that time, about 45% of Americans lived in areas of the country where same-sex couples could marry. There were 31 states where same-sex marriage was not permitted either due to statutes passed by their state Legislatures, or more likely, by amendments to the state Constitutions passed by the voters. as in South Carolina. 1 There were about 70 active lawsuits seeking marriage equality in various states. There was at least one active lawsuit in each of these 31 states that were banning same-sex marriages.
Three-judge panels at a total of three U.S. Circuit Court of Appeals had recently issued rulings for four of these lawsuits affecting five states. One of these lawsuits was Bostic v. Schaefer from Virginia. Three decisions were by a 2:1 vote; the remaining one was unanimous. All four rulings were in favor of legalizing marriage equality. All had been appealed to the U.S. Supreme Court for a final ruling.
Media commentators at the time debated what the response of the U.S. Supreme Court might be. The Justices could grant certiorari -- decide to accept an appeal -- of none of the cases, of one case, or of a group of cases. The near universal consensus was that the high Court would select one or two cases, announce their decision to grant certiorari in late 2014, hold hearings in the Spring of 2015, and announce their ruling in late 2015-JUN. Commentators speculated whether the high court's eventual decision would make marriage available to same-sex couples across the entire country.
In 1967, the U.S. Supreme Court did just that in another marriage-related case, Loving v. Virginia. The high court then made interracial marriages available throughout the U.S. At the time, polls showed that 72% of adults in the U.S. opposed
interracial marriage. Also, 48% felt that marrying a person of another race should
be prosecuted as a criminal act. The public is far more supportive of same-sex marriage now than they were supportive of interracial marriage in 1967. National polls have consistently shown majority support for same-sex marriage since 2011.
2014-OCT-06: The surprise decision by the U.S. Supreme Court that indirectly affected North Carolina and five other states:
This time, the U.S. Supreme Court marched to a different drummer.
On OCT-06, the high Court announced that it would not grant certiorari to any of the four lawsuits from three Circuit Courts of Appeals. 2 The four lawsuits involved were from five states:
- Utah and Oklahoma which are under the juridsiction of the 10th Circuit Court of Appeals in the Midwest and West. Other states in this Circuit Court are Colorado, Kansas, New Mexico, Oklahoma, and Utah.
- Virginia which is under the juridsiction of the 4th Circuit Court of Appeals in the Eastern U.S. Other states in this Circuit Court are Maryland, North Carolina, South Carolina, & West Virginia.
- Indiana and Wisconsin which are under the juridsiction of the 7th Circuit Court of Appeals in the Midwestern U.S. Illinois is also in this Circuit Court.
Same-sex marriage thus became final and the stays were lifted in all five states involved in the four lawsuits: Indiana, Oklahoma, Utah, Virginia and Wisconsin with the stroke of a pen.
Some minor housekeeping tasks were quickly cleaned up, and same-sex couples in these five states were able to start purchasing their marriage licenses, either on Monday, OCT-06 or -- in the case of residents of Indiana -- on the next day.
Having same-sex marriage suddenly come to five states had never happened before in U.S. history. Same-sex couples could marry in any of 24 states or the District of Columbia. This was very close to forming a majority of jurisdictions in the U.S. that had attained marriage equality. Some pro-marriage equality groups considered that once a majority of states attained marriage equality, and a majority of Americans lived in states with marriage equality, and support for same-sex marriage exceeded 60% then the U.S. Supreme Court would likely make marriage equality the law of the land in all 50 states.
Reactions by the Lesbian, Gay, Bisexual and Transgender community (LGBT) were mixed. There was much joy that marriage equality had come to loving, committed couples in five more states. The Internet was flooded with pictures of many happy couples. Some were holding their marriage licenses; others were getting married; still others were kissing. But the community was also saddened that there was now no possibility that the Supreme Court would rule marriage by same-sex couples to be legal across the entire country in mid-2015.
Religious and social conservatives were generally shocked at this sudden development. There were many references to lawless courts, to rogue judges, and to courts, Attorneys General, and Governors ignoring the will of the people. The latter was a reference to amendments to state constitutions that had banned marriage equality and were now found unconstitutional because they violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. There were calls for Congress to initiate a new amendment to the U.S. Constitution so that these two clauses longer applied to marriages. That would allow the voters in individual states to amend their state constitution to ban marriage for any group that was disfavored by a simple majority of voters, and have their amendments found constitutional by the courts. This is called the "tyranny of the majority." Preventing that was a major concern of the founding fathers of the U.S.
The affects of the U.S. Supreme Court's decision on OCT-06 went far further than directly affecting five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. It also indirectly affected six more states. When a ruling of a Circuit Court becomes final, it normally becomes applicable to all of the other states under the jurisdiction of that Circuit Court. This would imply that same-sex couples in six other states with same-sex marriage bans, who were also under the jurisdiction of the 4th, 7th, and 10th Circuit Courts, should be allowed to marry. These states are South Carolina, North Carolina, as well as Colorado, Kansas, West Virginia, and Wyoming. These will take a bit of time to sort out, because some of the legislators, Attorneys General and/or Governors in these states are strongly opposed to marriage equality.
The ripple effect of the Supreme Court's decision of OCT-06 is a game-changer, It impacted five states directly. It either has or is expected to bring marriage equality to six other states indirectly. It is also expected to influence additional states as various federal courts take notice of the trend towards marriage equality in their own rulings elsewhere in the country.
As of OCT-24, the South Carolina and Kansas goverments were still resisting the decision of the Supreme Court by defending their same-sex marriage bans in violation of established precedences.
The following information source was used to prepare and update the above
essay. The hyperlink is not necessarily still active today.
- "South Carolina Amendment 1, the Marriage Act (2006)," Ballotpedia, at: http://ballotpedia.org/
- "Recognition of same-sex unions in South Carolina," Wikipedia, as on 2014-OCT-15, at: http://en.wikipedia.org/
- J. Robert Smith, "Homosexual Marriage and the Conceit of Arenda L. Wright Allen," The American Thinker, 2014-FEB-16, at:
- "Bradacs v. Haley," LGBTQNATION, 2014, at: http://www.lgbtqnation.com/
- "Gay couple sues over S.C. ban on same-sex marriage," LGBTQNATION, 2013-SEP-02, at: http://www.lgbtqnation.com/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-17-
Last updated 2014-OCT-25
Author: Bruce A Robinson