A state that denies homosexuals the right to marry has no right to punish them for living together without being married.
In 1967, the United States Supreme Court decision in Loving v. Virginia, 388 U.S. 1, rendered unconstitutional laws preventing marriages between persons solely on the basis of racial classifications. It then took thirty-one years for South Carolina voters to repeal the provision of our 1895 state constitution prohibiting “marriage of a white person with a Negro or mulatto or a person who shall have one-eighth or more of Negro blood.” As much as I, and many of my family law colleagues, wish our state would repeal the current constitutional provision prohibiting the recognition of same sex marriages, it’s unlikely to happen in my lifetime. One might think South Carolinians would grow weary of being on the wrong side of history but we never seem to. Moreover, our constitutional ban is broader than most:
A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State. This State and its political subdivisions shall not create a legal status, right, or claim respecting any other domestic union, however denominated. This State and its political subdivisions shall not recognize or give effect to a legal status, right, or claim created by another jurisdiction respecting any other domestic union, however denominated. Nothing in this section shall impair any right or benefit extended by the State or its political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State. This section shall not prohibit or limit parties, other than the State or its political subdivisions, from entering into contracts or other legal instruments.
This provision means that South Carolina won’t even recognize same sex marriages or domestic partnerships contracted in other states. This renders it ripe for a “full faith and credit” clause challenge under the United States Constitution, Art. V, § 1, which states, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” At some point a homosexual couple that married or entered a civil union elsewhere will want to get divorced in South Carolina and it’s uncertain whether the case-law created “public policy exception” to the full faith and credit clause will allow South Carolina to disregard another state’s marriage or civil union judgments.
However the unduly moralistic nature of South Carolina family courts render our state constitutional ban on gay marriage subject to another, probably unique, equal protection challenge. When I first began practicing family law eighteen-plus years ago the family courts routinely placed restraints on parents “exposing their minor children to members of the opposite sex, unrelated by blood or marriage, overnight.” The intent was to prevent children from being exposed to a parent’s sexual partners in a manner that indicated non-marital sexual relations were acceptable. However this restraint was both overbroad and underinclusive. It was overbroad because a father would violate it by allowing his daughter to have her female friends do a sleepover. It was underinclusive because family court judges never considered that parents might actually have same-sex lovers. Eventually, this restraint mutated into its current form against “exposing the children to non-spouse romantic companions overnight.”
Family court judges used to deny that this restraint was merely designed to impose moral judgments with the rationale that it was prohibiting the children from being exposed to illegal behavior. The change in the restraint language belies this. The specific criminal statutes implicated by such behavior are the prohibitions against adultery (S.C. Code § 16-15-60), fornication § 16-15-60) and buggery (§ 16-15-120). South Carolina does not appear to criminalize mere sodomy that isn’t also buggery.
South Carolina’s code defines adultery as “the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.”§ 16-15-70. It defines fornication as “ the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.” § 16-15-80. The code does not define buggery other than to indicate that it can be done “with mankind or with beast.” § 16-15-120.
A review of these statutes indicates that lesbians are not violating any of them. The fornication and adultery statutes both require “a man and woman.” While buggery isn’t defined in the code, every definition I am aware of involves an anus and a penis and lesbians lack the latter. So when a family court judge prohibits a lesbian from exposing her children to her girlfriend overnight, that judge isn’t doing so to prevent exposure of the children to “illegal activity”; he or she is merely imposing a moral judgment upon that parent.
This modified restraint also creates equal protection problems. A heterosexual parent who wants to live with his or her lover while keeping the children overnight has the option of marrying that lover. Our state constitution denies a homosexual parent that option. I am increasing hearing of judges holding homosexual parents in contempt for exposing their children to their paramour overnight. I am looking forward to the day when a homosexual litigant tells that judge that he or she would be thrilled to get married and that the judge, as someone duly authorized to administer oaths, should marry them and that otherwise it violates their right to equal protection to enforce that restraint.
The United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003) gave legal protection to homosexual relationships, finding the state denies homosexuals equal protection when it criminalizes their consensual sexual activity. A homosexual parent has a good argument that a state which denies them the right to marry has no right to punish them for living together without being married. Even if this argument doesn’t succeed in forcing gay marriage upon an unwilling state, it might make family court judges reconsider this blatantly unfair restraint on homosexual parents.