(CN) - U.S. District Judge Richard Gergel struck down South Carolina's same-sex marriage ban Wednesday, but immediately stayed his order to allow time for an appeal.
Gergel's ruling in favor of a Charleston couple who attempted to get a marriage license last month was widely expected. So much so that state Attorney General Alan Wilson's initial response was to say the outcome "comes as no surprise."
However Wilson, a defendant in the case and outspoken opponent of same-sex marriage on the basis that it violates state law said he nonetheless intends to appeal the case to the 4th U.S. Circuit Court of Appeals.
"Today's ruling ... does not change the constitutional obligation of this Office to defend South Carolina law, including, but not necessarily limited to, appeal to the Fourth Circuit," Wilson said in a statement.
In 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. "The law in this Circuit is now clear," the couple said.
Condon and Bleckley filed their lawsuit after applying for, and initially receiving, a marriage license from a local probate judge. A second probate judge, in Columbia, also began taking applications for licenses.
Both said they were acting in accord with Bostic, and in the absence of direction from the S.C. Supreme Court.
Wilson filed a motion that same day asking the state's highest court to stop the licenses from being issued. The court did just that, saying pending actions in U.S. District Court -- both involving recognition of same-sex marriages performed in other states -- needed to be settled before South Carolina's ban could be tossed.
Judge Gergel held the state's law infringes on the U.S. Constitution's due process and equal protection clause, and 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.
"This court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same-sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional," Gergel wrote. "The Court finds that Bostic controls the disposition of the issues before this court and establishes, without question, the right of Plaintiffs to marry as same-sex partners. The arguments of Defendent Wilson simply attempt to relitigate matters already addressed and resolved in Bostic.
Wilson still insists this is not so. The written statement issued by his office maintains ""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.
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