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4th Cir. Denies Stay for S.C. Gay Marriage Ruling

By Brett Snider, Esq. on November 19, 2014 | Last updated on March 21, 2019

There must have been some degree of pearl-clutching from gay marriage opponents on Tuesday, as the Fourth Circuit denied South Carolina's request to stay last week's federal ruling against the state's gay marriage ban.

When U.S. District Court Judge Richard Gergel had struck down the Palmetto State's prohibition on gay marriage, he placed on automatic stay on the ruling that's set to expire November 20. For those keeping score at home, that's tomorrow, and it appears that the Fourth Circuit isn't going to step in before gay marriages begin.

But is the Fourth Circuit the last word on South Carolina's same-sex marriage ban?

The Ticking Clock

Like any good action movie, the South Carolina gay marriage battleground has its very own ticking clock, and this one was set by Judge Gergel. His stay expires Thursday at noon. And while you may not think of a federal judge like Gergel would be viewed as a caricatured Vaudeville nemesis, you need only Google his name to find how his opponents feel. One prior article by a self-described "Pro-White, Pro-South" blog called Occidental Dissent declared in 2011, "Jewish Judge Blocks South Carolina Immigration Law" -- so let that sink in.

While it's unclear that gay marriage opponents in South Carolina will blame the beginning of gay marriages on Judge Gergel's religion, they did seem particularly worried about the impending lift of the stay. Or, in more dramatic terms, high noon at the OK-to-Be-Gay-Married Corral.

South Carolina Attorney General Alan Wilson, however, told Columbia's WLTX-TV that "[t]his issue has not yet been resolved nationally," and that the Supreme Court could definitely, probably, and totally take up this or some other case to settle that nagging split created by the Sixth Circuit.

Real Talk: Is There a Chance of Success on the Merits?

In one sense, Wilson has a point. SCOTUS could very well take up the issue in this session, and they could grant an emergency stay before Thursday at noon.

On the other hand, all but two Justices (Scalia and Thomas, unsurprisingly) agreed to deny a similar emergency stay to Kansas about a week ago. The High Court did grant an emergency stay to Virginia back when the Fourth Circuit case was still possibly headed its way. But that was before the Supreme Court turned down five separate appeals -- including the Fourth Circuit one -- allowing gay marriages to begin nationwide.

The language of the Fourth Circuit's denial was brief, but we have to imagine them rolling their eyes just a bit. But maybe Chief Justice John Roberts, the one tasked with wrangling emergency stay requests for the Fourth Circuit, will work some last-minute magic before noon on Thursday.

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