SC AG appeals same-sex marriage ruling to Fourth Circuit

CHARLESTON, S.C. (WCIV) - South Carolina's Constitutional ban on same-sex marriages was struck down Wednesday, but a one-week stay was also granted to give appeals an opportunity to be heard by the Fourth Circuit and the U.S. Supreme Court.The first of those appeals was filed Thursday by state Attorney General Alan Wilson, asking the Fourth Circuit Court of Appeals to consider the case.In a separate filing, Wilson also asked the court for a stay in Wednesday's decision in an attempt to put off the Nov. 20 deadline for appeals before{}U.S. District Judge Richard Mark Gergel's ruling would take effect allowing marriages for same-sex couples. In the motion to stay Gergel's decision, Wilson again says marriage is an issue for states to decide. However, Gergel -- and the Fourth Circuit -- ruled that denying same-sex couples access to the rights of marriage is a violation of the Constitutional rights.Gergel issued a permanent injunction on Wednesday, prohibiting Wilson from enforcing any state law that seeks to prohibit same sex marriage or interfere in any way with gay couples' "fundamental right to marry."The stay will expire on Nov. 20 at noon, according to Gergel.Colleen Condon said she was actually out running errands Wednesday morning when she got a call from her attorney letting her know the ban had been struck down."I called Nichols and told her to come right over so we could read the great news together," said Condon.Condon said, given the history, she expected Attorney General Alan Wilson and Gov. Nikki Haley to fight the Fourth Circuit ruling, but it was still disappointing that they felt the state's law could ignore a higher authority. But Gergel's decision, she said, put an end to that."We thought right would win and right has won today," she said. "We're just relieved that marriage equality has come to South Carolina today."Condon said when the stay expired, they will be at the courthouse to pick up their marriage license and start planning their wedding and picking a date.{}Nichols Bleckley said she's never been in the limelight on a major issue, but hearing the stories of other same-sex couples fighting to be recognized has fueled her desire to push the issue."When I tell people of the rights we don't have, they say, 'Well, that isn't right. That isn't right.' And it does change minds one person at a time," Bleckley said.Condon and Bleckley say they don't see themselves as trailblazers, just two people willing to take a step forward for something they believed in.PDF: Read the full ruling from Judge GergelIn his ruling, Judge Gergel cited the Fourth Circuit Court of Appeals' ruling in Bostic v. Shaeffer, in which the federal appeals court struck down Virginia's ban on marriage for same-sex couples. The Fourth Circuit ruling in Bostic is binding precedent on South Carolina.One of Wilson's arguments to the court was to defer the Condon case until a decision had been reached on Bradacs v. Haley, the case of a same-sex Washington, D.C. couple who wanted recognition in South Carolina, but Gergel said the "differing factual scenarios at issue in Bradacs" did not warrant waiting for a decision in that case.Gergel went on to point out that the same-sex marriage bans have been struck down in a number of states and across four Federal Courts of Appeal. In the Fourth Circuit, where South Carolina resides, the Bostic case struck down the ban, yet South Carolina continued to argue that the circuit decision did not have bearing on its state law.Gergel argued otherwise."It is axiomatic that a decision of a circuit court, not overruled by the United States Supreme Court, is controlling precedent for the district courts within the circuit," he said.In his filing, Wilson pointed to the Sixth Circuit's opinion that the courts should be left out of the process and that same-sex marriage was a matter to be decided by the "usually reliable state democratic process."However, in the Fourth Circuit, judges rejected that argument, saying "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to play them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.""One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections," the Fourth Circuit ruled in Bostic.Gergel went on to say that after weighing the decision of the Fourth District and studying South Carolina's same-sex marriage ban, he found "there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional."Wilson said in a statement Wednesday afternoon that he would immediately file an appeal with the Fourth Circuit."Our state's laws on marriage are not identical to those in other states. Therefore, based on the time-honored tradition of federalism, this Office believes South Carolina's unique laws should have their day in court at the highest appropriate level," he said in the statement.Wilson went on to say that the Sixth Circuit upheld the marriage a same-sex marriage ban, which he thinks will lead to a case before the U.S. Supreme Court."We believe this office has an obligation to defend state law as long as we have a viable path to do so," Wilson said.Meanwhile, leaders of the Human Rights Campaign applauded the decision and chastised those who were still fighting to keep the laws."According to today's federal court ruling and two dozen others over the last year, there is no justifiable reason to keep these discriminatory marriage bans on the books, said Human Rights Campaign Legal Director Sarah Warbelow."The truth is, laws prohibiting same-sex couples from marrying serve no purpose other than to harm Americans who simply want to protect and provide for themselves and their families. Ultimately the U.S. Constitution does not allow states to continue discriminating against committed and loving gay and lesbian couples."During a phone interview with ABC News 4 shortly after the decision was handed down, Attorney David Aylor explained some of the nuances of the decision.Aylor said he expects Wilson's office to file an appeal, but it's still unclear what will happen to the stay implemented by Gergel over the next week.Wilson's spokesman Mark Powell said the Attorney General's office is reviewing the ruling.The state's leading Democrat heralded the decision."Forty-seven years ago in the landmark case, Loving v. Virginia, the Supreme Court held that states could not prohibit interracial marriages. Today, we take another step closer to true equality and living up to the words of the founding fathers that 'all men and women are created equal,'" said South Carolina Democratic Party Chairman Jaime Harrison."I applaud Judge Gergel. His decision today reminds us of the actions of another federal judge from Charleston, Judge Waites Waring, whose dissenting opinion in Briggs v. Elliot led to the end of 'separate but equal.'"Bishop Robert E. Guglielmone of the Catholic Diocese of Charleston, said religion teaches that marriage is between one man and one woman and a court decision does not change that."The federal court's decision today does not change the fact that the Roman Catholic Church has consistently taught and will continue to teach that marriage is a sacrament. It is a covenant of love between one man and one woman which bonds them for life and to any children that come from the union," he said.The Palmetto Family Council called Gergel a good man and a friend, but said public policy should be decided by the public."Today, a lone federal judge stuck (sic) down a state constitutional provision that was crafted for fairness, legislatively enacted, and duly approved by the collective will of an overwhelming 78 percent of South Carolina voters," the group said in a statement."Palmetto Family believes that as long as there are children, real one man-one woman marriage is essential for human flourishing. Marriage, as it has been since the dawn of human civilization, is a common good in our society worth defending to the fullest extent of the law."Meanwhile, the nation's highest court was considering Wednesday whether to block Kansas from enforcing is ban on gay marriage while federal courts review a legal challenge.The American Civil Liberties Union filed a lawsuit last month on behalf of two lesbian couples denied marriage licenses. A federal judge ordered the state to stop enforcing its ban as of 5 p.m. Tuesday - when county courthouses were closed for Veterans Day.Kansas Attorney General Derek Schmidt appealed to U.S. Supreme Court Justice Sonia Sotomayor. She put the federal judge's order on hold and gave the ACLU a chance to respond to the state's request to maintain the ban for now.??
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