Sorry, Mr. Wilson, the S.C. Legislature doesn’t trump the U.S. Constitution.
South Carolina was rebuffed again in federal court last week in its effort to continue barring same-sex couples from legally marrying in the state. Federal Judge Richard Gergel of Charleston overturned a state ban on same-sex marriages, ruling that gay couples have a constitutional right to marry in South Carolina.
The ruling is one more rebuttal of the argument by S.C. Attorney General Alan Wilson that the state should be the ultimate arbiter of who should be allowed to marry and who shouldn’t. Last month the U.S. Supreme Court refused to review a ruling by the 4th Circuit Court of Appeals that overturned a Virginia state ban on gay marriages.
Because South Carolina is in the 4th Circuit, the decision also effectively overturns its ban. South Carolina is the only state in the circuit that still refuses to allow gay marriages to take place.
Yet despite these setbacks, Wilson – with the support of Gov. Nikki Haley – continues to pursue a futile legal battle to preserve the ban. Wilson asked the appeals court in Richmond, Va., to stay the order until the entire appeals court can rule on the matter. And if the court doesn’t issue a stay, Wilson wants time to appeal to the U.S. Supreme Court.
But the mounting number of legal judgments at the federal level that say bans on same-sex marriage are unconstitutional makes it highly dubious that Wilson will prevail. Come Nov. 20, the deadline given by Judge Gergel to appeal his ruling to the 4th Circuit, we are likely to see gay couples getting married in South Carolina.
The decision by Wilson, abetted by Haley, to pursue a dead-end appeal to preserve the ban amounts to political pandering at its worst. They shouldn’t be wasting state resources to advance a hopeless cause.
Legal maneuvering aside, it should be apparent even to the average citizen that the argument in favor of banning gay marriage is simply wrong on its merits. Gergel’s ruling rejected all of Wilson’s arguments, especially the attorney general’s contention that legislatures should make laws defining basic constitutional rights.
“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,” Gergel wrote.
Individuals have the right to oppose gay marriage. Churches can’t be forced by any government to perform gay marriages if they choose not to.
But a growing body of legal opinion has determined that states are not entitled to deny same-sex couples the right to marry. To do so is unconstitutional.
At some point in the near future, South Carolina almost certainly will have to abide by the U.S. Constitution and permit same-sex marriages.