November 12, 2014 at 9:55 am EDT | by Chris Johnson
Judge strikes down South Carolina ban on same-sex marriage
A federal judge has overturned South Carolina's ban on same-sex marriage,

A federal judge has overturned South Carolina’s ban on same-sex marriage,

A federal judge has struck down South Carolina’s ban on same-sex marriage on the basis of legal precedent in the state’s judicial circuit.

In a 26-page decision issued on Wednesday, U.S. District Judge Richard Mark Gergel, an Obama appointee, determines the South Carolina’s ban on gay nuptials violates same-sex couples’ rights to equal protection and due process under the Fourteenth Amendment of the U.S. Constitution.

Gergel bases his decision on an earlier ruling from the U.S. Fourth Circuit Court of Appeals against the marriage ban in Virginia, which lies in the same judicial circuit as South Carolina.

“While a party is certainly free to argue against precedent, even very recent precedent, the Fourth Circuit has exhaustively addressed the issues raised by Defendants and firmly and unambiguously recognized a fundamental right of same sex couples to marry and the power of the federal courts to address and vindicate that right,” Gergel writes.

Gergel denies a request for a stay on his ruling pending appeal, but includes a one-week stay as part of his decision until Nov. 20 at noon. Same-sex couples won’t be able to marry in South Carolina until that time.

The lawsuit, Condon v. Haley, was filed in October by Lambda Legal on behalf of a lesbian couple who sought to marry in Charleston after the U.S. Supreme Court refused to hear decisions in favor of same-sex marriage. The couple obtained a marriage license in Charleston County, but were unable to wed after the South Carolina Supreme Court placed a hold on gay nuptials until federal litigation was resolved.

Beth Littrell, senior attorney in Lambda Legal’s Atlanta-based Southern Regional Office, said the decision moves South Carolina “closer to equality.”

“It is a shame it took another lawsuit to ensure that state officials respected the federal constitution, but the time is almost here for same-sex couples who want to marry to call the caterer,” Littrell said.

South Carolina Attorney General Alan Wilson, who has been defending the marriage ban in court, pledged in a statement to “immediately appeal” the ruling to the Fourth Circuit.

“Also, the Sixth Circuit Court of Appeals recently upheld traditional marriage,” Wilson said. “Therefore, we have opposing rulings between federal circuits, which means it is much more likely that the U.S. Supreme Court could resolve the matter at the national level. We believe this office has an obligation to defend state law as long as we have a viable path to do so.”

Wilson maintained South Carolina laws on same-sex marriage “are not identical to those in other states” and based on the principles of federalism “South Carolina’s unique laws should have their day in court at the highest appropriate level.”

It’s hard to see a successful path forward for South Carolina in defending the state’s marriage law given the Fourth Circuit’s decision against Virginia’s ban and the Supreme Court’s refusal to review that decision.

Evan Wolfson, president of Freedom to Marry, said the decision “adds to the powerful momentum” of the multitude of courts that have ruled in favor of same-sex marriage, but maintained the U.S. Supreme Court needs to act.

“But we are one country, with one Constitution, and continuing discrimination in other parts of the country prolongs harms and indignity to families,” Wolfson said. “The U.S. Supreme Court should act now to affirm the freedom to marry for all Americans.”

Voters approved South Carolina’s ban on same-sex marriage, Amendment One, in 2006 by a vote of 78 percent at the ballot.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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