Following Tuesday’s historic arguments before the U.S. Supreme Court on gay marriage issues, local observers reacted quickly.
“We stand on family and federalism,” said Oran Smith, president and CEO of Palmetto Family Council, a prominent South Carolina advocacy group for traditional opposite-sex marriage, biblical principles and states’ rights to decide marriage laws for themselves.
Children, Smith said, “do best when reared by both genders with their unique parental qualities.” An amicus brief by state family policy leaders stressed that belief, Smith said. He also praised S.C. Attorney General Alan Wilson for his amicus brief filed with the U.S. Supreme Court on the cases that stressed that “marriage is a state issue.”
In all, more than 100 amicus, or friend of the court, briefs were filed.
Carrie Warner, an attorney for the Lexington County same-sex couple whose arguments prevailed last fall in a South Carolina federal court against Wilson, said upon reading initial news accounts of the justices’ questions, most of them seemed to be thinking the traditional view of marriage could co-exist with the same-sex view.
“Just because the traditional view of marriage is between man and woman, that’s not enough to deny same-sex couples rights and benefits in the here and now,” Warner said. “Just because history says so, that’s not a good enough reason to deny legal rights to folks who are entitled to them.”
Derek Black, a constitutional law professor at the University of South Carolina School of Law, said, “The most important person there was Justice (Anthony) Kennedy, and he was coy, as best I could tell. He asked very tough questions of both sides, but they were the sort of the questions that any of us could make up – very basic questions.”
As have many, Black predicted that Kennedy will likely be the swing vote in the cases before the Supreme Court – the same as he was in a landmark 2013 case in which the court ruled federal laws cannot discriminate against same-sex couples who got married in states where such marriages were legal.
One important dynamic that surfaced Tuesday, Black said, was that conservative Associate Justice Antonin Scalia and Chief Justice John Roberts indicated they might be receptive to voting “yes” on the second of two questions before the high court – whether states without same sex marriage laws had to recognize same-sex marriages in other states even if that state itself did not allow same-sex marriages. A different section of the Constitution, one that basically requires states to recognize each others’ marriage laws, governs that question, Black said.
“That would basically push us to seven justices saying all states in America were obliged to recognize the marriages that occur in other states,” Black said.
“But I think we basically have five votes that will favor banning gay marriage prohibitions altogether,” he said of question No. 1, whether states should be allowed to ban gay marriage. The court’s four conservative justices seemed to be searching for some sort of compromise position, which “suggests that they are the ones that are going down in flames,” Black said.
Malissa Burnette, one of the lawyers for a Charleston couple who successfully sued in South Carolina federal court to get a state marriage license, said, “I’m feeling optimistic they are going to answer yes to both questions.”
Not only did the Supreme Court refuse to grant stays in the dozens of same-sex marriage federal cases that overturned state laws banning such marriages, but “there have been thousands of marriages that have taken place. There would be a lot of chaos if they said ‘no’ (to) question No. 1,” Burnette said.