South Carolina’s top prosecutor said Thursday that his office will formally appeal a judge’s ruling that overturned the state’s ban on same-sex marriage.
State Attorney General Alan Wilson’s office filed a notice that he would appeal a Wednesday ruling by District Judge Richard Gergel that deemed unconstitutional South Carolina’s 2006 constitutional amendment barring gay marriage. Wilson is also asking for an emergency stay on any licenses being granted during the appeal process. Gergel’s ruling included a temporary stay that will expire at noon on November 20.
However, Wilson’s appeal would go to the 4th U.S. Circuit Court of Appeals. That appellate court has already found a similar Virginia ban unconstitutional. South Carolina is the last state among those in the 4th Circuit’s jurisdiction that is defending its ban.
Wilson has argued South Carolina’s constitution is different than Virginia’s. In court filings Thursday, the Attorney General’s Office argued the appellate court did not consider the federalism argument in that case. The filing also argues that a U.S. Supreme Court ruling last year which struck down the federal Defense of Marriage Act made it clear that marriage should be defined by the states.
“If the law is to be changed, it should be through the voters and the legislature, as it has in many other states, rather than through the Court,” the filing states. Wilson has previously argued that a decision by a separate appeals court in the Midwest upholding same sex marriage bans shows the need for the U.S. Supreme Court to decide the issue.
Gergel’s ruling sided with a Charleston County councilwoman and her partner who had applied for a marriage license in October. A Charleston County probate judge initially allowed their application before the state Supreme Court halted the process the next day so the issue could be determined in federal court.