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The Impact (If Any) of Windsor and Perry on South Carolina’s Definition of Marriage

Article XVII, Section 15 of the South Carolina Constitution states, in pertinent part:  “A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State.”  Early this week the United States Supreme Court decided two cases concerning the legality of restricting same-sex marriage: Hollingsworth v. Perry and United States v. Windsor.  In Perry, the Court dismissed the case for lack of standing, therefore the case does not affect Article XVII, Section 15 of the South Carolina Constitution. 

In Windsor, the Court declared the Defense of Marriage Act (“DOMA”) unconstitutional on both federalism principles and under the Due Process Clause of the Fifth Amendment.  The Court stated that DOMA violated the Due Process Clause because it violated a liberty interest guaranteed by the State; thus, the court’s opinion intertwined state rights (federalism) with the Due Process Clause. The Court expressly stated that “[t]his opinion and its holding are confined to those lawful marriages.”  Since same-sex couples cannot be married under South Carolina law, the holding is inapplicable to Article XVII, Section 15.  Chief Justice Roberts’s dissent also emphasized that the decision does not apply to State laws prohibiting same-sex marriage.  Thus, the cases did not impact South Carolina’s decision to not recognize same-sex marriage.

For more information, see articles by Lyle Denniston of the SCOTUSBlog analyzing both decisions.  Also on SCOTUSBlog, Randy Barnett analyzes the federalism issue in Windsor.

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