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SSM Litigation: Carolinas and the Effect of the Virginia Opinion

By William Peacock, Esq. on February 20, 2014 | Last updated on March 21, 2019

Last week's decision, holding Virginia's ban on same-sex marriage to be undeclarationable unconstitutional, got a lot of attention, and rightfully so -- it was the first of its kind in the South, and followed similar decisions in two conservative Tenth Circuit states. But Virginia's battle isn't the only pending gay marriage litigation pending in the Fourth Circuit.

We've already talked abut West Virginia's lawsuit, which is in the early stages and is still gathering plaintiffs, but there are also parties challenging North and South Carolinas' bans. This raises an interesting question: how will the Virginia decision impact its fellow Fourth Circuit states?

Circuit-Wide Precedent

Obviously, a district court decision dealing with Virginia's ban has no effect outside of the Commonwealth. But, once the Fourth Circuit hears the issue, depending on the language and outcome of the opinion, and the similarity between Virginia's ban and the other states' bans, controlling precedent could arrive as soon as this fall. Of course, any Fourth Circuit decision will likely be appealed as well, with possibilities of an en banc rehearing and a Supreme Court certiorari grant. And that's if the nation's high court doesn't hear an appeal in the expedited Tenth Circuit cases first.

North Carolina's AG: No Change

Unlike his counterpart in Virginia, North Carolina Attorney General Roy Cooper isn't backing down from defending his state's ban on same-sex marriage, and he plans to honor his professional obligations, even though he tells the Virginian-Pilot that he supports marriage equality. His office told the Pilot that they were reviewing the Virginia ruling, but didn't expect it to have any effect on their case, as appeals courts haven't yet chimed in.

South Carolina: Persuasive Authority for Upcoming Case

South Carolina's litigation has been pending since last fall. Highway Patrol trooper Katherine Bradacs and her spouse Tracy Goodwin, who were married in Washington, D.C., are challenging the state's refusal to recognize their marriage.

"For us it's huge," Carrie Warner, a lawyer for the couple told the Charleston City Paper. "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."

According to the City Paper, the U.S. District Court for the District of South Carolina could hear the case as early as next month, or in a more unlikely scenario, could wait until after the Fourth Circuit weighs in later this year.

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