When the U.S. Supreme Court hears historic arguments Tuesday on the constitutionality of gay marriage, it will squarely address the two major issues raised in South Carolina’s two gay-marriage lawsuits.
The cases being heard are not the South Carolina cases – they’re from Kentucky, Michigan, Ohio and Tennessee – but the arguments are the same.
U.S. Judge Michelle Childs of Columbia already has ruled on one of those issues: whether a state must recognize a same-sex marriage that took place in another state. She ruled in favor of the same-sex couple and said South Carolina has no right to refuse to recognize a same-sex marriage that took place elsewhere.
In Charleston, U.S. Judge Richard Gergel has ruled on the other: whether a state has the power to deny a same-sex couple a marriage license and also to refuse to recognize such an in-state marriage. He ruled in favor of the same-sex couple and said South Carolina has no right to stop a gay couple from getting a marriage license or getting married.
The court has set aside 21/2 hours for Tuesday’s hearing – 90 minutes more than usual.
“The Supreme Court on its own divided the hearing into two questions, and those questions correspond exactly to the two questions pending in South Carolina,” said Malissa Burnette, one of the lawyers who represented Colleen Condon and Ann Bleckley in their successful quest in Charleston to get a marriage license.
Condon and Bleckley, both 41, plan to be in Washington on Tuesday in hopes of hearing the arguments, Burnette said.
“If the justices answer both those questions in the affirmative, it will settle once and for all where the nation stands – what every state must do,” Burnette said. “I don’t think the court would allow the chaos that would result from anything other than a yes-yes decision – and what would happen to the same-sex marriages that have now been performed?”
Gay marriage is now legal in some 37 states, and thousands of same-sex couples have gotten married across the country, including in South Carolina, as courts increasingly since last fall have approved its constitutionality.
But the U.S. Supreme Court has yet to make a ruling that would apply nationwide.
John Nichols, one of the lawyers representing Katie Bradacs and Tracie Goodwin Bradacs of Lexington County in the Columbia case, said he is glad both issues are before the U.S. Supreme Court.
“Our case was only going to do half the job,” said Nichols, who worked with lawyer Carrie Warner of Columbia on the case. “So it was very good the other lawyers got the ruling in the Charleston case. So there will be no mystery out there – everything will be taken care of when the U.S. Supreme Court finally rules.”
The Bradacs – Katie, 33, a state Highway Patrol trooper, and Tracie, 37, an information resource consultant – won’t make it to Washington. But they hope to listen to audio clips on the arguments, which will be on the Internet later Tuesday afternoon.
S.C. Attorney General Alan Wilson, citing South Carolina’s Defense of Marriage Act, has fought – and lost – repeated battles in federal court in the Charleston and Columbia cases to stop South Carolina gay couples from marrying. He declined to be interviewed for this story, saying the matter is being litigated.
However, Wilson fights on.
On April 1, he filed a 39-page amicus, or friend of the court, brief in which he asks the high court to abide by the “original understanding” of the 14th Amendment to the U.S. Constitution.
The 14th Amendment, passed in 1868, is the “equal protection” and “due process” amendment that supporters of gay marriage used to win their cases. That amendment basically means that gay couples are entitled to the same due process and equal protections of law in marriage matters as opposite-sex couples are, gay-marriage attorneys argue.
“While undoubtedly there are applications of the Fourteenth Amendment unforeseen by its drafters, same-sex marriage is not one,” wrote Wilson, who also cited an 1873 legal treatise asserting marriage is “one man and one woman united in law for life.”
Moreover, he wrote, our nation’s federal system “allows 50 different definitions of marriage in 50 different states. ... State authority to define marriage should not now be destroyed by a ruling without basis in history or constitutional law.”
Wilson also said that under the Constitution, an individual state has the choice of expanding its definition of marriage to include same-sex couples, but it is not required to.
Wilson’s brief is one of more than 100 amicus briefs filed in this case – on both sides. Briefs come from numerous religious, gay rights, civil rights, family-oriented and other activists.
Burnett points out that the 14th Amendment is the same amendment civil rights activists used to dismantle segregation laws in the 20th century.
“Wilson’s argument is a sorry argument. It would basically institutionalize bigotry,” she said.
The court decisions and legislative actions in recent years that permit gay marriage in a majority of states apparently reflect a sea change in attitudes.
About 10 years ago, the idea of gay marriage was a hot-button, litmus-test issue that social and religious conservatives used to whip up support for anti-gay candidates and stoke opposition against moderates.
At that time, most Americans opposed gay marriage.
But today, the idea of gay marriage has lost its ability to prod voters in most places. Many staunch conservatives have stopped crusading against it. Only last week, ABC and the Washington Post released a national poll saying 61 percent of Americans believe that gays and lesbians should have the right to marry.
In South Carolina, too, the mood has shifted. In 2007, some 80 percent of voters voted for an amendment to the state Constitution that prohibited gay marriage.
But that percentage has dropped considerably in recent years, according to a Winthrop poll in March, which found that some 53 percent of South Carolinians are against recognizing gay marriage. Support for allowing gay marriage has climbed to 42 percent, according to the poll.
Another poll, done in January by the Public Policy Poll in Raleigh, found that 60 percent of South Carolinians felt that overturning the ban on gay marriage last fall had no impact on their lives.
On the books
In addition to fighting for the state constitutional amendment banning gay marriage, Wilson is trying to uphold a 1996 state anti-gay marriage law.
The state Marriage Law expressly bans same-sex marriages and prevents out-of-state marriages from being recognized by South Carolina.
There are no statewide statistics on how many same-sex couples in South Carolina have gotten married since a panel of the 4th U.S. Circuit Court of Appeals in November handed Wilson his most recent defeat and same-sex marriage became legal in the state.
All marriage license applications are reported to the S.C. Department of Health and Environmental Control. But a spokesman for that agency said DHEC has not been tabulating numbers. The agency likely will develop such totals in the future, he said, but no date has been set.
However, it seems likely that hundreds of gay couples have tied the knot.
In Richland County, Probate Judge Amy McCulloch said Friday that since November, 221 same-sex couples had taken out marriage licenses.
In Lexington County, Probate Judge Dan Eckstrom said Friday he hadn’t been keeping track. He might be able to get the number next week, he said.
To gay couples, being allowed to marry in South Carolina has given them the same rights other couples have.
Since November, Tracie Goodwin took Bradacs’ last name and got a state driver’s license in her new name. They had gotten married in the District of Columbia in 2012.
But the change was more than just a name.
The Bradacses now have visitation and decision rights in hospitals if one becomes incapacitated. And as a spouse of a state trooper, Tracie will have the same rights as any other spouse if Katie is wounded or killed in the line of duty.
People in Lexington County, where they live, have been wonderfully accepting, Tracie said.
“We’ve had a lot of people come up and thank us,” she said. “Our neighbors have been really supportive, too. Both of our jobs have been really supportive, too.
“Things have been much different than we thought. We expected it to be worse.”