There are two federal district court challenges pending in South Carolina. The earlier-filed one, Bradacs v. Haley, sought recognition for a same-sex couple’s marriage contracted in the District of Columbia. It was filed by two local attorneys in Columbia, South Carolina. In a November 10 order in that case, District Judge J. Michelle Childs granted a motion to dismiss Governor Nikki Haley as a defendant in the case, finding that she played no direct role in the enforcement of the state’s ban on the recognition of same-sex marriages performed elsewhere, and also ruled that the plaintiffs did not have standing to attack head-on the state’s refusal to allow same-sex couples to marry. She indicated that she would proceed to rule later on the plaintiff’s challenge to the state’s refusal to recognize their marriage, in which the state’s Attorney General, Alan Wilson, is the remaining defendant.
The later-filed case, Condon v. Haley, grew out of events last month. After the Supreme Court refused to review the 4th Circuit’s ruling in Bostic v. Schaefer, holding that Virginia’s ban on same-sex marriage violates the 14th Amendment, the local Probate Judge in Charleston County, South Carolina, Irvin Condon, finding that this ruling is binding in South Carolina which is within the 4th Circuit, issued a marriage license to Colleen Therese Condon and Ann Nichols Bleckley. There is a mandatory 24-hour waiting period in South Carolina between issuance of a license and performance of a marriage ceremony. During that brief period, South Carolina’s Attorney General, Alan Wilson, ran to the state Supreme Court and sought an order blocking Probate Judge Condon from performing the ceremony. The Supreme Court said that no same-sex marriages could be performed until the lawsuit pending before Judge Childs in federal court was finally resolved.
Thus thwarted in their marriage plans, Condon and Bleckley filed suit in the federal district court against Governor Haley, Attorney General Wilson, and Probate Judge Condon, seeking an order allowing them to marry. The case was filed in their behalf by the Atlanta office of Lambda Legal working with cooperating attorneys from South Carolina: Malissa Burnette, Nekki Shutt, and Victoria Eslinger. The matter was assigned to District Judge Richard Mark Gergel. Shortly after filing the complaint, Lambda Legal moved the court for summary judgment and immediate injunctive relief. Governor Haley filed a motion to dismiss as to her, and Attorney General Wilson moved to dismiss the case as failing to state a valid legal claim, arguing that the court was bound to dismiss the case because of the U.S. Supreme Court’s 1972 ruling in Baker v. Nelson that same-sex marriage did not present a “substantial federal question,” an argument that had been rejected by the 4th Circuit in the Virginia case. Wilson also argued that the federal court should abstain deciding this case until Judge Childs ruled on the summary judgment motion in the Bradacs case, as the South Carolina Supreme Court had ordered that no same-sex marriages take place until the pending federal challenge was finally decided.
Rejecting all the defense’s jurisdictional and substantive arguments, Judge Gergel ruled on November 12 that the plaintiffs are entitled to the declaratory and injunctive relief that they are seeking. He found that the pending cases in the South Carolina Supreme Court and before District Judge Childs posed no impediment to his ruling on the merits of this case. He agreed with Judge Childs that Governor Haley should be dismissed as a defendant. But he pointed out that the issues pending before Judge Childs and before him were different, as she had ruled just days before that the Bradacs plaintiffs had standing only to seek a ruling on recognition of their out-of-state marriage.
Gergel rejected Attorney General Wilson’s argument that he could ignore the 4th Circuit’s ruling in Bostic or reject it if he disagreed with it. “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 in Bostic,” he wrote.
“While a party is certainly free to argue against precedent, even very recent precedent,” he continued, “the Fourth Circuit has exhaustively addressed the issues raised by Defendants and firmly and unambiguously recognized a fundamental right of same sex couples to marry and the power of the federal courts to address and vindicate that right. Regardless of the passion of Bostic’s opponents, the predictability and stability of our judicial decisionmaking is dependent upon lower courts respecting and enforcing the decisions of higher appellate courts. Not every decision is heard and decided by the United States Supreme Court (in fact very few are), and lower federal courts are not free to disregard clear holdings of the circuit courts of appeals simply because a party believes them poorly reasoned or inappropriately attentive to alternative legal arguments. Coherent and consistent adjudication requires respect for the principle of stare decisis and the basic rule that the decision of a federal circuit court of appeals left undisturbed by United States Supreme Court review is controlling on the lower courts within the circuit. This principle, along with the foundational rule that the United States Constitution is the supreme law of the land and state laws that run contrary to constitutionally protected rights of individuals cannot be allowed to stand, are among the body of doctrines that make up what we commonly refer to as the rule of law.”
Judge Gergel point out that since October 6, all of the other states in the 4th Circuit had fallen in line with the Bostic ruling (apart from Maryland, which had legislated and then voted in favor of same-sex marriage earlier), leaving South Carolina the last holdout. This ruling, if upheld on appeal, will complete the “sweep” in the 4th Circuit.
Wilson had asked that Judge Gergel stay his ruling in case he decided to rule in favor of the plaintiffs. Gergel rejected the idea that he should grant a stay pending the state’s appeal on the merits to the 4th Circuit, in light of that court’s prior ruling striking down Virginia’s marriage ban. But, following the example set a week earlier by District Judge Crabtree in Kansas, he granted a temporary stay to give the state an opportunity to seek a stay pending appeal directly from the 4th Circuit or, failing that, from the Supreme Court. Judge Gergel’s temporary stay will dissolve at noon on November 20 unless it is extended by the 4th Circuit or the Supreme Court. The fate of Attorney General Wilson’s attempt to delay same-sex marriages in South Carolina likely turns on whether the Supreme Court grants a stay pending appeal in Kansas, since the issues are virtually identical, as Kansas has been denied a stay by the 10th Circuit, whose marriage equality decisions were denied review by the Supreme Court.
Judge Gergel was appointed to the bench by President Barack Obama and took his seat in August 2010. He had previously been a personal injury litigator in private practice after graduating from Duke Law School, and his appointment had been endorsed by South Carolina’s U.S. Senator Lindsey Graham, a Republican.Tags: Bradacs v. Haley, Condon v. Haley, Lambda Legal, marriage equality, South Carolina Gay Marriage, South Carolina marriage equality, South Carolina same-sex marriage, U.S. District Judge Michelle Childs, U.S. District Judge Richard Mark Gergel