CHARLESTON, S.C. — A same-sex couple married in Washington, D.C., and seeking to have South Carolina recognize the union is suing the wrong people in the wrong court, state Attorney General Alan Wilson argued in federal court documents filed late Thursday.
“Because this case seeks to decide the core question of two people’s marital status, it belongs in state court, rather than in federal court,” said the motion seeking to dismiss the lawsuit, one of two federal court challenges to the state’s constitutional ban on same-sex marriage.
For more than a century the U.S. Supreme Court and as other courts have concluded that issues involving domestic relations, including marriage “are conclusively within the authority of state courts,” Wilson’s motion said.
In the case, Highway Patrol Trooper Katherine Bradacs and U.S. Air Force retiree Tracie Goodwin want South Carolina to recognize their marriage.
But Wilson argued the couple cannot bring the suit against him and Gov. Nikki Haley, the named defendants, because they “lack specific enforcement authority regarding South Carolina’s same-sex marriage provisions.”
Same-sex marriage cases have proceeded through federal courts in other states at “an unprecedented pace,” Wilson wrote. “But the legal proceedings are not over. The United States Supreme Court has not weighed in.”
Earlier this week, attorneys for the couple asked U.S. District Judge Michelle Childs to rule in their case without a trial saying in their motion there are no longer any issues for the court to consider.
The attorneys argued that during the past 16 months “there have been more than 40 federal and state court decisions striking down bans on marriage equality” and that “a larger portion of the United States population lives in jurisdictions that recognize same-sex marriage than do not.”
They also noted that South Carolina is the only state in the Fourth U.S. Circuit “refusing to recognize the rights of persons of the same sex to marry.” On Oct. 6, the U.S. Supreme Court refusing to hear an appeal of a Fourth U.S. Circuit Court of Appeals decision allowing same-sex marriage in Virginia.
On Wednesday, the plaintiffs in South Carolina’s other federal case asked for an injunction blocking state officials from enforcing the ban on same-sex marriages.
Colleen Condon and Nichols Bleckley couple sued last week in Charleston seeking the right to be married. An injunction would mean the state couldn’t enforce its ban and effectively open the way for same-sex marriages.
In court documents, their attorneys asked Gergel “to enforce the clear and unequivocal law in the Fourth Circuit that government officials must allow same-sex couples the freedom to marry.”
Wilson has until Nov. 3 to respond to the injunction motion. But Gergel meets with attorneys in Charleston on Friday to discuss how the case will proceed.
Condon and Bleckley applied for their license after the U.S. Supreme Court refused to hear the Virginia appeal and probate judges in two counties began accepting applications.
The state has a 24-hour waiting period for licenses and before one could be issued to the couple, the state Supreme Court put all same-sex licenses on hold pending a decision in the Bradacs and Goodwin case.
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