(CN) - The 4th Circuit denied the South Carolina attorney general's request for an emergency stay of a lower court's ruling opening the door to gay marriages in the state.
U.S. District Judge Richard Gergel struck down South Carolina's same-sex marriage ban last week, holding that the state's law infringes on the U.S. Constitution's due process and equal protection clause.
But he immediately stayed his order to allow time for state Attorney General Alan Wilson to appeal. The deadline for the expiration of that stay is noon Thursday.
Judge Gergel said once his stay if lifted, his order will forbid Wilson or any other law enforcement body in the South Carolina from enforcing the current ban.
Wilson asked the 4th Circuit for an emergency stay, but in one sentence ruling, a three-judge panel comprised of U.S. Circuit Judges Stephanie Thacker, William Byrd Traxler Jr. and Diana Gribbon Motz, rejected even the most temporary stays pending appeal.
"Upon consideration of submissions relative to appellant's motion for stay pending appeal, the court denies the motion and denies the alternate request for temporary stay," the justices wrote.
Wilson immediately issued a statement in which he said he now plans to appeal to the U.S. Supreme Court.
"It is still likely the U.S. Supreme Court will address conflicting rulings between federal circuit courts of appeal. Therefore, today's ruling by the Fourth Circuit does not end the constitutional obligation of this Office to defend South Carolina law," Wilson said.
Today's action was set in motion by a lawsuit filed in the federal court in Charleston on October 16, Colleen Condon, a county councilwoman, and her partner, Anne Nichols Bleckley, said South Carolina's refusal to allow same-sex marriages flies in the face of the 4th Circuit's ruling in Bostic v. Schaefer, and the Supreme Court's recent denied of all petitions for certiorari in the case.
In Bostic, the 4th Circuit held that same-sex couples have a fundamental right to marry which cannot be denied or infringed absent a compelling state interest, and it rejected all justifications put forward by the Commonwealth of Virginia to prevent such marriages. Condon and Bleckley contended that as the 4th Circuit has jurisdiction over South Carolina, the state is prohibited from erecting barriers to same-sex couples wishing to exercise their rights.
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