South Carolina's gay marriage ban struck down in federal court

A federal judge has struck down South Carolina’s ban on same-sex marriage, though the Wednesday ruling also immediately stayed the decision until 20 November to allow the state to appeal.

On the same day, the US supreme court said same-sex marriages could go ahead in Kansas but the state insisted the ruling applied to only two counties.

In his decision to allow same-sex marriages in South Carolina, US district judge Richard Mark Gergel cited a binding decision by the fourth circuit court of appeals that struck down Virginia’s ban in the case of Bostic v Schaefer.

“While this debate over precedent and constitutional principle is interesting, this court find most persuasive the clearly stated authority of the fourth circuit’s seminal decision in Bostic,” Gergel said in the ruling (pdf).

South Carolina was the only state under the jurisdiction of the fourth circuit court of appeals to have upheld its ban after the supreme court declined to take up the circuit’s case. The fourth circuit ruled in July that such bans are unconstitutional, but its decision was not made final until October, when the US supreme court declined to take it up for review – essentially, letting the lower court ruling stand. That decision led to same-sex marriage becoming legal in North Carolina, West Virginia and Virginia.

The South Carolina case, Condon v Haley, concerns a couple who applied for a marriage license on 8 October, after a judge in Charleston County indicated he would issue same-sex licenses in light of the supreme court’s decision. The South Carolina supreme court intervened to stop such licenses from being issued.

The state attorney general, Alan Wilson, has defended the state’s ban and is expected to appeal the decision with the governor, Nikki Haley.

Gergel’s ruling is stayed until 20 November at noon, meaning same-sex marriages are not yet legal in the state. That day, hearings are scheduled for same-sex marriage cases in Arkansas and Montana.

The Freedom to Marry founder and president, Evan Wolfson, called on the US supreme court to make same-sex marriage legal for all Americans.

“Today’s ruling in South Carolina makes clear that all Americans share the fundamental freedom to marry, and that no state obstruction or discrimination is exempt from the constitution’s command of equal protection of the laws,” Wolfson said in a statement. “The decision adds to the powerful momentum of 50 other victories from a bipartisan cascade of federal and state courts over the past year.”

Last week the sixth circuit court of appeals created a circuit court split by defending states’ rights to uphold such bans. This split means it is more likely for the supreme court to take up a case.

Meanwhile the supreme court denied a request from Kansas to prevent gay and lesbian couples marrying while the state fights the issue in court. The order is consistent with how the justices have handled recent requests from other states that have sought to keep their bans in place while they appealed lower court rulings in favour of gay and lesbian couples.

Kansas went to the supreme court after the American Civil Liberties Union sued on behalf of two lesbian couples. A judge issued an injunction barring the state from enforcing its gay marriage ban but the case has not yet gone to trial.

The legal situation in Kansas is complicated by a separate case before the Kansas supreme court, which the state’s attorney general, Derek Schmidt, filed last month. He persuaded the Kansas court to block marriage licences for same-sex couples while his case is heard.

Schmidt’s case came after one county issued a license to a lesbian couple. The couple quickly wed, becoming the only known same-sex Kansas couple to do so.