Supreme Court Enjoins Probate Judges From Issuing Same Sex Marriage Licenses Pending Decision From U.S. District Court

In State ex rel. Wilson v. Condon, No. 002121, 2014 WL 5038396 (S.C. Oct. 9, 2014), the supreme court enjoined probate judge Irvin G. Condon and all South Carolina probate judges from issuing same-sex marriage licenses pending a decision from United States District Court Judge J. Michelle Childs in Bradacs v. Haley, 3:13­–CV–02351–JMC. Id. at *1.

The supreme court ordered the injunction after Probate Judge Irvin G. Condon accepted a marriage application from a same-sex couple and indicated he would issue a marriage license following expiration of the twenty-four hour waiting period, id.; see also S.C. Code Ann. § 20–1–220 (2014), relying on the Fourth Circuit Court of Appeals decision in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).

In Bostic, the circuit court held that a statutory scheme in Virginia that bans same sex marriage is unconstitutional. Bostic, 760 F.3d 352 (4th Cir. 2014). In its opinion, the Fourth Circuit acknowledged that three other states in the Fourth Circuit, including South Carolina, have similar bans. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); see also S.C. Const. art. XVII, § 15. According to the circuit court, denying same sex couples the right to marry “prohibits them from participating fully in our society,” and such a prohibition is a violation of the Fourteenth Amendment. Bostic, 760 F.3d at 384. The Supreme Court of the United States denied a petition for a writ of certiorari in that case on October 6, 2014. McQuigg v. Bostic, no. 14-251, 2014 WL 4354536 (U.S. Oct. 6, 2014).

United States District Judge J. Michelle Childs will apply the Fourth Circuit’s decision in Bostic to determine the constitutionality of Article XVII, Section 15 of the South Carolina Constitution. See id. Section 15 provides that a marriage between one man and one woman is the only domestic union that shall be valid or recognized in South Carolina. S.C. Const. at. XVII, § 15.

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