Charleston, SC (WLTX) - A U.S. District Court judge has struck down South Carolina's same-sex marriage ban saying it violates the U.S. Constitution, but the issue is likely far from being settled in the courts.
Judge Richard Gergel issued his decision Wednesday in a case brought by two women who tried to get a marriage license in Charleston, South Carolina last month.
Gergel did, however, also issue a stay on his order until noon on November 20th, allowing for an appeal. Until that time, no marriage licenses can be issued.
South Carolina Attorney General Alan Wilson said in a statement he will appeal to the U.S. Fourth Circuit Court.
"Today's ruling comes as no surprise and does not change the constitutional obligation of this Office to defend South Carolina law, including, but not necessarily limited to, appeal to the Fourth Circuit," Wilson said in a statement.
Earlier this year, the Fourth Circuit Court of Appeals struck down Virginia's same-sex marriage prohibition. When the U.S. Supreme Court refused to hear an appeal of the case in early October, some interpreted that as a de facto ruling on other states' gay-marriage laws that are under the jurisdiction of the Fourth Circuit. That list of states includes South Carolina.
On October 8th, Colleen Condon and her partner, Nichols Bleckley, were the first to apply in Charleston for a same-sex marriage license. A local probate court judge agreed to receive the couple's application and filings from other gay couples.
A judge in Columbia also began taking applications for licenses.
But South Carolina Attorney General Alan Wilson disagreed, and filed a motion that same day asking the South Carolina Supreme Court to stop the licenses from being issued. A day later, the state's high court agreed to stop the licenses, saying a separate decision being heard by the U.S. District Court in South Carolina must be heard first before the state's ban could be tossed out.
That case involves a Lexington County, South Carolina couple who were married in another state, but have not had their union recognized here. Their lawsuit directly challenged the constitutionality of the state's gay marriage ban.
U.S. District Judge Michelle Childs is still considering that case.
But Judge Gergel's ruling says the state's law infringes on the U.S. Constitution's due process and equal protection clause, and his order stops Wilson and any other law enforcement body in the state from enforcing the current ban.
"This court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional," wrote Gergel. "The Court finds that [the Virginia decision] controls the disposition of the issues before this court and establishes, without question, the right of Plantiffs to marry as sames sex partners. The arguments of Defendent Wilson simply attempt to relitigate matters already addressed and resolved in [the Virginia decision.]
In his statement, though. Wilson said South Carolina's law is unique.
"Our state's laws on marriage are not identical to those in other states," he said. "Therefore, based on the time-honored tradition of federalism, this Office believes South Carolina's unique laws should have their day in court at the highest appropriate level."
Condon and Bleckley, meanwhile, said they're looking forward to picking up their license the following Thursday, and are planning their wedding.
"I'm just thrilled," Bleckley told WCBD-TV in Charleston after Gergel's ruling. "I'm very proud of my state. I'm proud of everyone who has reached out to us and given us love and told us to keep fighting."
"It's inconceivable that they're going to change what Judge Gergel has ordered, because what Judge Gergel has ordered is completely consistent with what the [Virginia] case decision already is," Condon added.
It's unclear if the Fourth Circuit will hear any potential requests for stays or appeals. However, this case may ultimately be headed to the U.S. Supreme Court, because of a ruling last week in the U.S. Court of Appeals for the 6th Circuit. That decision upheld same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee, reversing lower court rulings that had thrown them out.
Because of that decision, there now exists a split between the 6th Circuit and the 4th, 7th, 9th and 10th Circuits, which all struck down gay marriage bans in their jurisdictions. It would be up to the U.S. Supreme Court to resolve the conflicting decisions.