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S.C.'s Same-Sex Marriage Ban Struck Down by Federal Court

By Mark Wilson, Esq. on November 12, 2014 | Last updated on March 21, 2019

So that makes how many now? Notwithstanding what the Sixth Circuit thinks, Judge Richard Gergel of the U.S. District Court for the District of South Carolina has come to the now-unsurprising conclusion that the state's ban on same-sex marriage is unconstitutional.

In a referendum approved by 78 percent of voters, South Carolina amended its constitution in 2006 to prevent the state from recognizing any marriage other than that between one man and one woman. Gergel's order makes his the 52nd court to strike same-sex marriage bans since U.S. v. Windsor, according to Freedom to Marry.

Procedural Hurdles

Every same-sex marriage case has its twists and turns, and South Carolina threw a bevy of procedural challenges at the plaintiffs -- a same-sex couple who just wanted to get married. They applied to a local probate judge, but the Attorney General of South Carolina asked the state supreme court to intervene. It did, enjoining the issuance of a marriage license pending the outcome of the case in federal district court.

So what procedural hurdles have we got here? Eleventh Amendment immunity? That's a good one -- in the sense that it's a good joke. The Eleventh Amendment doesn't prohibit injunctive relief against a state officer. Though the Attorney General and Republican Gov. Nikki Haley claimed the case couldn't proceed against them, the court said it certainly could, as they were in charge of enforcing the law, making them proper defendants.

The state then tried to invoke the Rooker-Feldman doctrine, which prohibits the loser in state court to get a federal district court to review the decision of the state court. That doesn't apply here, Gergel said, because the state supreme court never entered a final order. The state also tried to invoke the Younger abstention doctrine, but didn't explain how it applied (spoiler alert: it doesn't, because there's no criminal prosecution at play).

Sixth Circuit? Where Do You Think You Are?

After knocking down the state's flimsy procedural defenses, the court got to the meat: Citing to the great weight of judicial opinion -- as well as Bostic v. Schaefer, which South Carolina courts are bound by -- the court found the state's law unconstitutional. Baker v. Nelson? The court here agreed with the overwhelming majority of other same-sex marriage opinions in concluding that Baker was a footnote in time, de facto overruled by the subsequent "doctrinal developments" that the Sixth Circuit sniffed at.

Speaking of the Sixth Circuit, the state did bring up that opinion, but the district court in this case found that DeBoer's heavy emphasis on "respect for state and voter prerogatives" was foreclosed by Bostic, which upheld the role of the judiciary as protector of individual rights, regardless of what voters believed.

The one thing the court did is grant a brief stay to allow the state to appeal to the Fourth Circuit. Otherwise, same-sex marriage carries the day in South Carolina as of November 20 at noon.

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