Both sides of a South Carolina same-sex marriage lawsuit have filed their brief arguments as an appeals court decides whether or not to allow the first marriage licenses to be granted on Thursday.
When he ruled South Carolina’s ban on same-sex marriages unconstitutional last week, District Judge Richard Gergel nevertheless gave state Attorney General Alan Wilson’s office enough time to file an appeal with the Fourth Circuit Court of Appeals before the ruling would take effect. The stay will expire on Thursday at noon if the Fourth Circuit does not act. The U.S. Supreme Court could also step in if the appellate court does not.
This case stems from a lesbian couple (Charleston County Councilwoman Colleen Condon and her partner Nichols Bleckley) who sued the Attorney General’s Office and others after their attempt to obtain a marriage license was blocked last month. Attorneys representing the pair argued in new filings that the Fourth Circuit Court already ruled a similar Virginia ban unconstitutional earlier this year in the case Bostic v. Schaefer and that South Carolina’s ban is covered by the decision.
In filings last week, Wilson’s office argued that a ruling by the separate Sixth Circuit Court of Appeals last week that sided in favor of states regulating marriage shows South Carolina’s own case should be reconsidered. But his opponents dismissed that.
“The State’s position here — that the Sixth Circuit decision somehow elevates the State’s likelihood of overcoming the controlling effect of Bostic — is nothing short of mystifying,” attorneys for Condon wrote.
The Fourth Circuit could either reject South Carolina’s appeal, allow the stay to expire while they consider the case, or continue the stay until the appeal can be heard. The U.S. Supreme Court could also step in, if its justices thought necessary.
But a majority of legal observers believe the Fourth Circuit is unlikely to consider South Carolina’s appeal because of the Bostic decision it already made.
“It may be higher than zero chance, but it’s not much more than zero,” University of South Carolina law professor Derek Black told South Carolina Radio Network. “There’s no way the Fourth Circuit’s going to reverse itself.”