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South Carolina seeks delay of same-sex marriages (UPDATED)

UPDATED Tuesday 7:52 p.m.   The state filed its application for postponement, saying that when — as the state expects — the Court grants review of the same-sex marriage question, it should also take on the South Carolina case, to decide whether federal courts are barred from ruling on “domestic relations” disputes.  This marks the first time that state officials have raised that issue before the Supreme Court; it has been advanced in lower courts, but so far unsuccessfully.   The state used sixteen of the twenty-one pages in its application to argue that point, including assertions that both Baker v. Nelson in 1972 and last year’s decision in United States v. Windsor — two precedents directly at issue in the same-sex marriage controversy — were based on that theory. The application, docketed as 14A533, can be read here.


South Carolina officials were preparing on Tuesday to ask the Supreme Court to delay same-sex marriages in the state while they appeal the issue to a federal appeals court.  They had told the U.S. Court of Appeals for the Fourth Circuit that they would make such a request if the Fourth Circuit refused a delay; the Fourth Circuit did so on Tuesday afternoon, in a brief order.

So far, the Supreme Court has refused to grant review of any of the recent lower court decisions striking down same-sex marriages, and it has also refused to delay those rulings.  If the pattern holds in the South Carolina case, that would make it the thirty-fourth state in which same-sex couples could begin to seek marriage licenses.

The state’s request for a postponement would go first to Chief Justice John G. Roberts, Jr., who handles emergency legal matters from the geographic area of the Fourth Circuit, which includes South Carolina.  He has the option of acting on his own, or sharing the decision with his colleagues.

A request for a postponement by the Supreme Court is the only option left to South Carolina, since the Fourth Circuit not only refused a delay until it can rule on the state’s pending appeal, but also declined even to grant a temporary delay to give the state time to go to the Supreme Court.

The Fourth Circuit, ruling in a Virginia case, has found that bans on same-sex marriage are unconstitutional.  The Supreme Court refused on October 6 to review that decision, and lifted an earlier postponement order.

South Carolina was the only remaining state in the Fourth Circuit’s region where same-sex marriage had not yet been permitted.  On November 12, U.S. District Judge Richard Mark Gergel of Charleston applied that decision to nullify the South Carolina ban, leading state officials to then ask the Fourth Circuit for a delay during their appeal.

Among other reasons the state offered for delay was that the Supreme Court is now more likely to grant review of the basic question of same-sex marriage rights because a split has developed among the federal appeals courts on the issue.

Elsewhere in South Carolina, U.S. District Judge Michelle Childs of Columbia ruled unconstitutional the state’s refusal to recognize marriages performed outside of the state for same-sex couples living in South Carolina.  Her decision on Tuesday found that this refusal violated constitutional guarantees of legal equality and due process of law.

The couple who filed that case had been married in Washington, D.C., two years ago, and sought official acceptance of that marriage in their home state — a request that could not be granted because of the state’s ban.

In ruling for that couple, Judge Childs did reject their argument that the refusal of recognition violated their right under the Constitution’s Full Faith and Credit Clause.  That provision generally requires states to respect the judicial decrees and official acts taken in other states.

However, the judge concluded that the part of the federal Defense of Marriage Act that gives states permission to refuse to recognize other states’ same-sex marriage decrees remains intact, although the Supreme Court struck down last year another part of that Act denying federal marital benefits to already-married same-sex couples.

Meanwhile, in Kansas — another state where a federal appeals court decision in favor of same-sex marriage had appeared to be binding — the state supreme court decided on Tuesday to stand aside to await the final outcome of federal court proceedings on the constitutionality of that state’s ban.  It lifted an earlier order that it had issued barring a judge in one judicial district in the state from issuing marriage licenses.

There has been little doubt that same-sex marriages would go forward in Kansas, even as the state was resisting in the state’s own highest court as well as in federal court, after the Supreme Court on November 12 had refused a request by state officials to delay a federal judge’s ruling that appeared to apply statewide, overturning the state ban.

With Tuesday’s order by the Kansas Supreme Court, it now appears that Kansas is definitely the thirty-third state in which same-sex couples may marry.




Recommended Citation: Lyle Denniston, South Carolina seeks delay of same-sex marriages (UPDATED), SCOTUSblog (Nov. 18, 2014, 6:12 PM),