Attaining same-sex marriage and equal rights for the Lesbian,
Gay, Bisexual & Transsexual (LGBT) community in South Carolina
Part 5: 2014-OCT/NOV: Marriage equality
to South Carolina for everyone.
The term "LGBT" refers to the Lesbian, Gay, Bisexual and Transgender community.
Note: In the original drafts of this essay, some of the passages
were in the wrong order. We apologize for any confusion this caused.
2014-NOV-18: Stay denied:
The request by the State of South Carolina to extend the stay of the District Court was refused by the 4th U.S. Circuit Court of Appeals late on Tuesday, NOV-18. 3
Attorney General Wilson issued a statement, saying:
"This issue has not yet been resolved nationally. It is still likely [that] the U.S. Supreme Court will address conflicting rulings between federal circuit courts of appeal. Therefore, today's ruling by the Fourth Circuit does not end the constitutional obligation of this Office to defend South Carolina law. We continue to believe the doctrine of federalism and the Tenth Amendment [of the U.S. Constitution] should allow South Carolina's unique laws to be considered at the highest appropriate court of appeal. We will be seeking an application to the U.S. Supreme Court for a stay shortly." 9
The Tenth Amendment of the U.S. Constitution states that:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Since the U.S. Constitution is silent on marriage, this means that the powers to define couples' eligibility for marriage is a responsibility of the individual states. All constitutional specialists agree on this. Thus, for example, each state defines the minimum age at which a couple can marry. They also define whether first cousins can marry. However, most constitutional experts believe that when a state defines eligibility for marriage, it must not conflict with the Due Process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution. In the case of South Carolina, the state Constitution bans same-sex marriage. But the overwhelming majority of dozens of state and federal courts have recently determined that the 14th Amendment implies that same-sex couples must be given the same access to marriage as opposite-sex couples have.
2014-NOV-19: First marriage licenses issued to same-sex couples South Carolina:
As noted above, District Court Judge Gergel stayed his ruling in "Condon v. Haley," until noon on Thursday, NOV-20. On the previous day, expecting that the stay would expire, a Charleston County probate judge issued marriage licenses to some same-sex couples. Charleston County is on the Atlantic coast of South Carolina. One couple was married at the Charleston County Court House.
In the Midlands area of South Carolina, shown in red in the above map, Probate Court Judge Amy McCulloch said that they were accepting marriage license applications from same-sex couples on NOV-19. However, they would not be issuing licenses until the afternoon of NOV-20 when the stay will have expired, assuming that no sudden change happened to extend the stay. Other Midlands counties were more cautious. They waited until the stay actually expired before accepting applications or issuing licenses. 10
2014-NOV-20: Second stay denied:
Attorney General Wilson made a second request for a stay -- this time from the U.S. Supreme Court.
His request was refused on Thursday morning, NOV-20. 4 Only two of the nine Justices on the U.S. Supreme Court were willing to approve of a stay. Justice Antonin Scalia and Justice Clarence Thomas issued a brief that stated their opinion. They are the two current Justices who are most closely associated with the judicial philosophy of originalism -- a principle used to interpret the U.S. Constitution. It attempts to discover the original meaning or intent of the the authors of the document, and then applies that interpretation to present-day legal questions. 5 Other justices on the Supreme Court look upon the Constitution as a living document to varying degrees. That is, the words of the document must be reinterpreted in each generation as the culture evolves.
When applied to matters related to human sexuality the two methods of interpretation produce radically different results. Consider:
- During 1787, when the U.S. Constitution was signed, same-sex sexual behavior was considered a criminal act. During the previous year, Pennsylvania had replaced the death penalty with life imprisonment as punishment. The rest of the country still retained the death penalty. 6
- In mid-2003, the U.S. Supreme Court issued its decision in Lawrence v. Texas. It decriminalized same-gender sexual behavior in private by consenting adults across the country.
- The culture has radically changed even since 2003. An increasing percentage of Americans now accept homosexual orientation as one of three normal, natural, unchosen, and fixed sexual orientations that is experienced by a small percentage of adults. Most American adults currently favor giving same-sex couples access to marriage.
With the rejection of a stay by the U.S. Supreme Court, marriage equality came to South Carolina at noon on NOV-20 when the District Court's temporary stay expired. This made South Carolina the th state to legalize same-sex marriage.
Attorney General Wilson indicated that he will continue to challenge marriage equality in his state, even without a stay from the high court. He said:
"Despite today’s refusal to grant our motion, the US Supreme Court has not yet resolved conflicting rulings by federal appeals courts on the issue of same-sex marriage. When the US Supreme Court decides to consider the case, our office will be supporting the position of the Sixth Circuit Court of Appeals, which is more consistent with South Carolina State law, which upholds the unique status of traditional marriage." 7
Four Circuit Courts have issued decisions to date on same-sex marriage bans. the Sixth Circuit is the only one to uphold a ban. It was decided by a close vote of 2 to 1 among a panel of three randomly chosen judges.
WIS-TV prepared the following video on the economic impacts of marriage equality: 8
This section will be expanded if additional information becomes available.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Bruce Smith, "SC: Couple can't bring same-sex federal lawsuit," The State, 2014-OCT-23, at: http://www.thestate.com/
- Jeremy Turnage, "US district court judge strikes down SC's same-sex marriage ban, SC AG to appeal," WIS-TV, 2014-NOV-12, at: http://www.wistv.com/
- David Badash, "Breaking: Big South Carolina Marriage News – Stay Denied, Marriage Ban Struck Down, More," The New Civil Rights Movement, 2014-NOV-18, at: http://www.thenewcivilrightsmovement.com/
- Pete Williams, "Supreme Court Denies Stay in South Carolina Same-Sex Marriage," NBC News, 2014-NOV-20, at: http://www.nbcnews.com/
- "Originalism," Wikipedia, as on 2014-NOV-20, at: http://en.wikipedia.org/
- Louis Crompton, "Homosexuality and the Death Penalty in Colonial America," University of Nebraska at Lincoln, 1976-JAN-01, at: http://digitalcommons.unl.edu/
- "US Supreme Court refuses to block equal marriage in South Carolina," Pink News, 2014-NOV-20. at: http://www.pinknews.co.uk/
- "Same-sex marriage could impact SC's economics," WIS-TV, 2014-NOV, at: http://www.wistv.com/
- Tony Santaella, "4th Circuit Won't Stop Gay Marriage in SC," WLTX-TV, 2014-NOV-18, at:
- Scott Cooke, "Same Sex Marriage: How Midlands Counties Are Responding," WLTX-TV, 2014-NOV-19, at: http://www.wltx.com/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-22
Last updated 2014-NOV-21
Author: Bruce A Robinson