All across the country we are seeing a significant change in the tide concerning
the ban on gay marriage. Almost every other day, we hear of another state’s
constitutional ban on same-sex marriage has been overturned. At this time,
14 states have seen their constitutional bans on gay marriage overturned
since the United States Supreme Court ruled that the Defense of Marriage
Act was illegal in June 2013, with 16 similar lawsuits currently pending
across the country as seen here.
Two Federal Courts of Appeal, the Tenth Circuit in Denver, Colorado and
the Fourth Circuit in Richmond, Virginia, have affirmed that these statewide
bans on gay marriage are indeed unconstitutional. These rulings can be
found here and here, respectively. These pending cases tee this widely
litigated issue up nicely for the United States Supreme Court’s
review in the coming year.
But, what does the Fourth Circuit’s ruling mean for South Carolina
as a State? Well, the answer is “it’s complicated.”
The Fourth Circuit Court of Appeals is the federal appeals court for the
States within its circuit, i.e., South Carolina, North Carolina, Virginia,
West Virginia and Maryland. The Bostic decision handed down by the Fourth
Circuit likewise concerned the State of Virginia’s constitutional ban on
In ruling that the Virginia state constitutional ban was in fact, unconstitutional,
the Fourth Circuit declared that all statewide bans within the Fourth
Circuit were in essence, illegal, on the federal level. In other words,
the decision did not declare South Carolina’s statewide ban as illegal
on a statewide level, but illegal on the federal level.
Simply stated, South Carolina can continue to ban the solemnization or
recognition of same sex marriages by its State law. However, the Fourth
Circuit’s decision should go a long way in causing our federal district
court to reconsider whether South Carolina’s ban is constitutional.
What’s next? Plaintiffs Bradacs and Goodwin must file a Motion in
federal court here in South Carolina declaring South Carolina’s
statewide ban as unconstitutional citing the Fourth Circuit’s decision
and other precedential law across the country.
Will there be an immediate ability for same sex couples to marry in South
Carolina? Anything is possible. However, as we are seeing across the country,
most federal courts are issuing stays on their decisions restraining gay
couples from marrying pending an ultimate decision on the issue by the
United States Supreme Court. One can only conclude that should we be successful
here in South Carolina, any victory would be similarly stayed.
In other words, stay tuned!