Attaining same-sex marriage and equal rights for the Lesbian,
Gay, Bisexual & Transsexual (LGBT) community in South Carolina
Part 2: 2014-OCT:
South Carolina struggles towards marriage equality
How South Carolina (SC) and five other states became indirectly affected by the U.S. Supreme Court's decision:
As noted in the previious essay, on 2014-OCT-06, the U.S. Supreme Court refused to hear appeals from three U.S. Circuit Courts of Appeals. This made the rulings of three such Circuit Courts in four separate lawsuits affecting five states final. Within a day, same-sex couples were able to marry in all five states
When a decision by a federal Circuit Court of Appeals becomes final, then the ruling directly affects the state from which the lawsuit originated. It may or may not also affect other states that are also under the jurisdiction of the same Circuit Court of Appeals.
For example, consider an hypothetical environmental lawsuit that originated in Utah and involves the protection of a species of fish found only in large salt water lakes. A ruling by the 10th Circuit Court of Appeals that became final would directly affect Utah. However, it would not affect the other five states under the jurisdiction of that Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, or Wyoming -- because none of these states have large salt lakes within their borders.
However, since the marriage-related lawsuit that originated in Utah involved marriage equality, then it would definitely affect marriage laws in the other five states over which the 10th Circuit Court has jurisdiction. This is because there is no real difference in same-sex couples among these states:
- Since about 5% of the newborns in every state will grow up to find that they are gay or lesbian, and
- Since about another 5% of newborns in every state will find out later in life that they are bisexual, and
- Since most people are social beings,
- Then, a small but significant minority of people in every state will probably fall in love with a member of the same sex, will want to make a lifelong commitment to that person, and marry them.
In the case of the 4th Circuit Court of Appeals' decision on marriage equality in a Virginia case: it was finalized by the U.S. Supreme Court when the high court refused to accept an appeal from the Circuit Court. Commentators almost universally believe that that decision is also binding on the other states that are under the jurisdiction of the 4th Circuit Court. These are: South Carolina, North Carolina and West Virginia. It would not be binding in Maryland because that state had previously legalized same-sex marriage an no longer has a ban in place.
Over the next week, it became obvious that all of the states within the jurisdiction of the 4th Circuit Court of Appeals -- except for South Carolina -- gracefully accepted marriage equality. With a matter of days, same-sex couples were able to marry in four of the five states that had same-sex marriage bans and are under the jurisdiction of the 4th Circuit Court of Appeals.
- Maryland: On 2012-MAR-01, Governor Martin O'Malley (D) signed a bill passed by the Legislature into law. It was not affected by the Circuit Court's ruling, except that the state cannot reinstate its ban on same-sex marriage even if its government or people wanted to.
- North Carolina: On 2014-OCT-10: Four days after the Supreme Court made the 4th Circuit Court ruling permanent, same-sex couples were able to marry.
- Virginia: On 2014-OCT-06, the same day that the Supreme Court made the 4th Circuit Court ruling permanent, same-sex couples were able to marry.
- West Virginia: On 2014-OCT-09, Four days after the Supreme Court made the 4th Circuit Court ruling permanent, West Virginia Attorney Genera Patrick Morrissey (R) and Governor Earl Ray Tomblin (D) agreed to stop defending the state's discriminatory marriage ban. Marriages began by same-sex couples.
However, in South Carolina: Attorney General Alan Wilson (R) predicted that it will be months before the same-sex marriage question will be resolved in his state.
When the smoke clears, most expect that the ultimate impact of the U.S. Supreme Court's decision on OCT-06 will increase the number of states attaining marriage equality from 19 to about 30. That means that all couples, whatever their gender makeup, will be able to marry in 60% of the states in the U.S. plus the district of Columbia -- assuming that they meet age, financial, and genetic closeness requirements. Also they will be able to travel or relocate to another state and have their marriage recognized.
Many religious and social conservatives in the 4th Circuit Court undoubtedly believe that this indirect approval of marriage equality is unfair to them. It should happen simply because their state is under the jurisdiction of the 4th Circuit Court of Appeals. When the boundaries of the 4th, 6th, and 11th Circuit Courts of Appeals were drawn many decades ago, South Carolina could have easily ended up in either the 6th or 11th Circuit Court. Then, South Carolina would not have been affected by the decision of the 4th Circuit Court in the Virginia case.
Why did South Carolina not allow same-sex marriages like the other states did?
There were four states under the jurisdiction of the 4th Circuit Court of Appeals who still banned same-sex marriages on 2014-OCT-05. One day later, the U.S. Supreme Court made the ruling by the 4th Circuit Court in a Virginia lawsuit final. Virginia and three of the other states almost immediately allowed same-sex couples to marry. South Carolina did not, apparently because of a decision by South Carolina's Attorney General, Alan Wilson (R). Others who have discussed this matter of the Internet seem to believe that same-sex couples in South Carolina should be able to get married because all the states under the jurisdiction of the 4th Circuit Court are bound by that court's final decision.
Allen Wallace, writing for Cola Daily in Columbia, SC said:
"Virginia now must allow gay marriage immediately. The Virginia case is seen as a precedent for the Bradacs-Goodwin case [in South Carolina] because Virginia’s ban is very similar to South Carolina’s, and both states fall under the jurisdiction of the Fourth Circuit Court of Appeals."'
Carrie Warner is the attorney for the plaintiffs in this marriage equality case. The plaintiff couple is Katie Bradacs and Tracie Goodwin. The couple wants South Carolina to recognize their earlier marriage solemnized in the District of Columbia.
“I think our judge is bound by the court’s decision, bound by federal law."
Jeff Ayers is chairperson of SC Equality. He said:
"The Fourth Circuit Court of Appeals has made it clear that banning marriages for same-sex couples is unconstitutional. Since South Carolina is part of the Fourth Circuit and therefore subject to that ruling, the only question is whether our state and its officials will persist in spending taxpayers’ money to fight a lost cause. Wisconsin Governor Scott Walker, a Republican, acknowledged that with the U.S. Supreme Court’s announcement today, the fight against gay marriage ‘is over.’ South Carolina Attorney General Alan Wilson should follow this wise example. Our state should enforce the law as determined by the Fourth Circuit rather than trying to uphold unconstitutional legislation or amendments."
But Attorney General Wilson disagrees. He released a statement on OCT-06 saying that:
"Our case (Bradacs v. Wilson) has not yet been decided. Until the courts rule on the matter, South Carolina will seek to uphold our state constitution." 2
He seems to believe that having an active same-sex marriage case before the courts gives his state immunity from the 4th Circuit Court's final ruling that marriage uniformity is applicable everywhere in the 4th Circuit's area of jurisdiction,
Linda Katner, writing for the Charleston City Paper, said:
"Attorney General Alan Wilson joins a long line of South Carolinians throughout our history who have fought equal protection under the law ... and lost ... but not without creating rancor and needless anguish.
We can go back to the days after Reconstruction in South Carolina when progress for African Americans was answered with Ku Klux Klan-led violence and Jim Crow laws. Or, when women got the right to vote in 1919, and the 19th Amendment was sent to each state to be ratified, the S.C. General Assembly overwhelmingly rejected the amendment, and the amendment wasn't officially passed into law here for 49 years.
South Carolina fought equal protection under the law again when the U.S. Supreme Court ordered the integration of public schools, K-12. The S.C. Legislature adopted resolutions that declared the Court's decision to be "null, void, and no effect." South Carolina held out longer than any other state in integrating schools, desegregating none until 1966 and not officially ending segregation until 1970, 15 years after the Supreme Court ruling. ..."
Most legal experts agree that South Carolina is bound by law to accept the rulings of the U.S. 4th Circuit Court of Appeals on same-sex marriage and that we, once again, are delaying the inevitable. Why? Why do we obstruct the rights of minority after minority in South Carolina?" 5
She has no answer to the question.
The following information source was used to prepare and update the above
essay. The hyperlink is not necessarily still active today.
- Dal Kalsi, "SC Attorney General: Same sex-marriage decision still undecided,"Fox Carolina, 2014-OCT-06, at: http://www.foxcarolina.com/
- Allen Wallace, "U.S. Supreme Court decision does not immediately end South Carolina ban on gay marriage," Cola Daily. 2014-OCT-07, at: http://coladaily.com/
- Adam Polaski, "PHOTOS: The freedom to marry arrives in some South Carolina counties," Freedom to Marry, 2014-OCT-08, at: http://www.freedomtomarry.org/
- Sam Spence, "Same-sex couples can get married in Charleston County beginning today, says a local judge," Charleston City Paper, 2014-OCT-08, at: http://www.charlestoncitypaper.com/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-18-
Last updated 2014-OCT-24
Author: Bruce A Robinson