Yesterday, October 9, 2014, in an order from State ex rel. Wilson v. Condon, 410 S.C. 331, 764 S.E.2d 247 (2014), the South Carolina Supreme Court issued a stay preventing county probate judges from issuing marriage licenses to same sex couples pending a decision by United States District Court Judge J. Michelle Childs in Bradacs v. Haley, 3:13-CV-02351-JMC. That lawsuit challenges the provision of the South Carolina constitution, S.C. Const. art. XVII, § 15, barring same sex marriages.
Other than our state attorney general, Alan Wilson, few attorneys believe Judge Childs won’t be compelled by Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), to find South Carolina’s ban on same sex marriages unconstitutional. In Bostic, the Fourth Circuit Court of Appeals held that the statutory scheme in Virginia banning same-sex marriage violates the United States Constitution. The Fourth Circuit acknowledged in its opinion that three other states in the Fourth Circuit have similar bans, including South Carolina. On October 6, 2014 the United States Supreme Court denied certiorari in Bostic, which makes that case controlling legal authority within the Fourth Circuit. Assuming Judge Childs follows the Bostic decision, which she is required to do, she will find South Carolina’s ban unconstitutional. The Supreme Court’s stay would appear to only delay the inevitable.
Faced with this inevitability the attorney general of West Virginia (another state within the Fourth Circuit) conceding that its ban on same-sex marriage was no longer defensible and the West Virginia governor issued a statement directing state agencies to allow same sex marriages. Judge Childs has asked for briefing by October 15, 2014 and her decision on the constitutionality of South Carolina’s same sex marriage ban should follow.
Neither South Carolina nor West Virginia are thought of as progressive states. However, typically, I think of South Carolina as being a bit more cosmopolitan than The Mountain State: Which Charleston would you rather live in? To be out-progressived by West Virginia is sad, sad, sad.
It is embarrassing for our Supreme Court to make this decision. As I always say to my visiting friends, “Welcome to SC, set your clocks back 60 years.”