Tuesday, February 18, 2014

Same-sex ruling in Virginia could affect S.C. gay marriage ban

Courting appeals

Posted by Corey Hutchins on Tue, Feb 18, 2014 at 2:10 PM

Last week, a federal judge in Virginia declared the state’s ban on same-sex marriage unconstitutional — the first ruling of its kind in the South. And while federal judges in Oklahoma and Utah have made similar rulings, this is the first in a state within the same federal appeals court jurisdiction as South Carolina. That’s the Fourth Circuit Court of Appeals in Richmond, Va.; the other four states in the circuit are Maryland, West Virginia, North Carolina and South Carolina.

Here in the Palmetto State, supporters of same-sex marriage are popping champagne corks over the Virginia ruling.

“For us it’s huge,” says Carrie Warner, a lawyer for a gay couple in Lexington County who are challenging South Carolina’s same-sex marriage ban in federal court. “It’s the first state in the South within our circuit that has made this ruling, effectively overturning a constitutional ban. And so this is a direct hit in terms of guidance for, potentially, our judge whose hearing this case."

click to enlarge U.S. District Judge Michelle Childs - C-SPAN
  • C-SPAN
  • U.S. District Judge Michelle Childs
Last fall, S.C. Highway Patrol trooper Katherine Bradacs and her spouse Tracy Goodwin filed their lawsuit. They were legally married in Washington, D.C., and they argue South Carolina’s ban on same-sex marriage infringes on their constitutional rights. The federal government recognizes their marriage in the wake of a U.S. Supreme Court decision that struck down the federal Defense of Marriage Act (DOMA), but the Palmetto State, which has a same-sex marriage ban and a constitutional amendment declaring marriage as being between a man and a woman, does not. Warner says the facts in her clients’ case are similar to those of the one in Virginia. U.S. District Judge Michelle Childs, an appointee of President Barack Obama, could hear the South Carolina case as early as next month. The judge who ruled in Virginia, Arenda Wright Allen, was also appointed by Obama around the same time.

Katherine Bradacs and her spouse Tracy Goodwin - FILE PHOTO
  • File photo
  • Katherine Bradacs and her spouse Tracy Goodwin

When it comes to South Carolina, two things could happen, according to those following the case.

Malissa Burnette, an attorney for the Post-DOMA Litigation Task Force in South Carolina, a legal team that helps LGBT couples navigate the laws here, says Judge Childs could wait on her ruling to see how the Fourth Circuit rules on the Virginia appeal and look to that for guidance.

Or, says Warner, Childs could rule on the case here, and then the Fourth Circuit could lump that decision in with the one in Virginia — and possibly others in other states within the circuit — and rule on them together. “The timing is right,” she says, adding that she’s hoping for the latter.

While there is flexibility for the Fourth Circuit to compile similar cases from different states and make a sweeping ruling, it doesn’t happen often, says University of Richmond Law professor Carl Tobias. He expects Childs to make a decision on the South Carolina case before the Fourth Circuit hears the Virginia appeal. He says Childs will be looking at the decisions in Oklahoma, Utah, and, of course, Virginia when considering whether to overturn South Carolina’s laws against same-sex marriage.

“To the extent the bans are similar, then maybe we’re likely to see pretty similar resolutions,” Tobias says. “But not necessarily.”

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