Gay Marriage Ruling Imminent in S.C.

(CN) - A day after voters across South Carolina cast their ballots unreservedly for opponents of same sex marriage, all eyes have turned to Charleston, where a ruling by U.S. District Judge Richard Gergel on the issue could be imminent.

The basis for that belief is an October 24 telephone conference between Judge Gergel and attorneys for Governor Nikki Haley and state Attorney General Alan Wilson , both of whom are fighting to preserve South Carolina's ban on same-sex marriages.

During the call, which lasted but 15 minutes, Emory Smith, an attorney representing Wilson, asked for an extension of time to file papers in a case involving Colleen Condon and Anne Bleckley, Charleston County residents who sued the state claiming it is unlawfully denying their "fundamental right to marry."

"Let me tell you my view, Mr. Smith," Gergel said, according to a transcript of the hearing. "The plaintiffs in this case have asserted an irreparable injury. They assert their marriage was stopped by action of the defendants. I believe they are entitled to an expeditious review."

In their lawsuit Condon, a county councilwoman, and her partner say 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.

Judge Gergel said Bostic, and the U.S. Supreme Court's subsequent decision not to overrule it, begs a couple questions in the context of the case before the court.

"Question one. Just a straight up generic question, is a ruling by an appellate court of the circuit not overturned by the U.S. Supreme Court binding on this court?" Gergel asked.

"The second question, to the extent Bostic is binding on this court, I want to identify, if they exist, the specific diffrerences between the Virginia law and the South Carolina law, or any other provision that would distinguish Bostic, the Bostic decision, from this case."

"The third issue I'd like addressed [is], if any party asserts that Bostic is wrongly decided, I want that stated forthrightly that you are arguing against precedent," Gergel said. "I'm not trying in any way to limit your ability to argue it, but I want it clearly stated just about where everybody stands."

Finally, Judge Gergel said he wanted to know, if he does decide whether injunctive relief is appropriate, whether the state will seek a stay pending any appeal.

"If so, it needs to state fully the basis of that entitlement to a stay," Gergel said.

Attorney John Nichols, appeared for Probate Judge Irvin Condon, whose decision to issue a marriage license to Condon, a distant counsin, and Bleckley prompted the South Carolina Supreme Court to stay the issuance of same-sex marriage licenses in the state.

Nichols wanted to know how a ruling in favor of the plaintiffs would impact probate judges who are subject to state Supreme Court's order.

"I don't intend to get into this, Mr. Nichols, but a decision by my court would control here over the matter of constitutional law, because of the Supremacy Clause," Gergel said. "But if I were to grant a motion, I would promptly advise the [state] Supreme Court of that."

"I can't control what they would do; I jsut know the effect of injunction, were I to issue one," he added.

In a 57-page brief filed by Gov. Haley and Wilson on Monday, the defendants assert, "Our state's laws are valid under the equal protection and due process clauses. Among other errors. the Bostic panel has misapplied ... Loving v. Virginia ... to alter an element historically inherent in marriage, a union of a man and a woman."

Loving v. Virginia was a landmark civil decision by the U.S. Supreme Court invalidating Virginia state laws prohibiting interracial marriage.

The defendants continue: "The issue of same-sex marriage has proceeded through the Federal Courts in other states at an unprecedented pace. Centuries of precedent have been swept away in other jurisdictions in the space of only two or three years. Never have the Courts made judgments so quickly about an issue that had received little attention before now.

"But the legal proceedings are not over," the lengthy brief continues. "The United States Supreme Court has not weighed in. Many Courts of Appeals have not decided the case before them or are still n process in the District Courts."

"Although a 2-1 Panel of the Court of Appeals for the Fourth Circuit in Bostic overturned Virginia's same-sex marriage ban, that Panel did not consider defenses that are dispositive of the instant case, and the en banc Court of Appeals has not ruled on those defenses or the merits of constitutional challenges," the defendants said.

All additional fillings in the case were due by noon today.

There are currently three other same-sex marriage cases on the federal docket in South Carolina. They differ from the Condon lawsuit because they center not on the right to marry within the state, but on same-sex couples who married elsewhere having their unions recognized by South Carolina.

In the brief filed on behalf of himself and the governor, Wilson suggests a decision on Condon be put off until the first of the Columbia cases, filed by highway patrol officer Katherine Bradacs and Tracie Goodwin in 2013, is decided.

"The substantive issues are present in both cases," Wilson wrote.

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