Updated: 2:40 p.m. EST
CHARLESTON, S.C. — A federal judge on Wednesday struck down South Carolina’s same-sex marriage ban as unconstitutional, opening the door to such marriages but also giving the state a week to appeal. The attorney general said he would do so immediately.
U.S. District Judge Richard Gergel, ruling in the case of a same-sex couple from Charleston who sued to be married, found South Carolina’s state constitutional ban “invalid as a matter of law.”
He also blocked any state official from interfering with the plaintiffs’ rights to be married. But Gergel wrote that order would not take effect until noon Nov. 20, allowing Attorney General Alan Wilson a chance to appeal to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.
“Today’s ruling comes as no surprise and does not change the constitutional obligation of this office to defend South Carolina law, including, but not necessarily limited to, appeal to the 4th Circuit,” Wilson said in a statement.
He noted the 6th Circuit Court of Appeals in Cincinnati recently upheld gay marriage bans in four other states, and the issue could end up before the U.S. Supreme Court.
But the 4th Circuit already has struck down Virginia’s gay marriage ban, a ruling that applied to other states in the circuit. The U.S. Supreme Court refused to hear an appeal of that case last month and South Carolina is the only state in the circuit that has refused to allow such marriages.
Gergel wrote that the 4th Circuit decision is precedent in South Carolina and the court has “recognized a fundamental right of same-sex couples to marry and power of the federal courts to address and vindicate that right.”
Derek Black, who teaches constitutional law at the University of South Carolina School of Law, said “the prospects are zero” that Wilson will be able to get a stay of Gergel’s ruling at the 4th Circuit.
“If you thought of the attorney general here and the attorney generals in the 6th Circuit as football teams, they are down about 10 touchdowns with 10 seconds left,” Black said. “You can’t score 10 touchdowns in 10 seconds.”
The South Carolina case was brought by Colleen Condon and Nichols Bleckley, who applied for a same-sex marriage license in Charleston County last month.
But before it could be issued, the state Supreme Court blocked issuing licenses until a federal court in Columbia ruled in another gay marriage challenge. In that case, a couple wants the state to recognize their same-sex marriage performed in Washington, D.C.
Condon and Bleckley sued in federal court on Oct. 15 after the state Supreme Court action.
“We’re excited and relieved and pleased that the federal court issued its ruling striking down this discriminatory law,” said Beth Littrell, an attorney for Lamda Legal, a national civil rights law firm that assisted Condon and Bleckley in their lawsuit.
“It would have been nice if it had come earlier, but in the scheme of the amount of time most federal lawsuits take this is a very quick decision and so we are happy,” she added.
Meanwhile, the nation’s highest court was considering Wednesday whether to block Kansas from enforcing is ban on gay marriage while federal courts review a legal challenge.
The American Civil Liberties Union filed a lawsuit last month on behalf of two lesbian couples denied marriage licenses. A federal judge ordered the state to stop enforcing its ban as of 5 p.m. Tuesday – when county courthouses were closed for Veterans Day.
Kansas Attorney General Derek Schmidt appealed to U.S. Supreme Court Justice Sonia Sotomayor. She put the federal judge’s order on hold and gave the ACLU a chance to respond to the state’s request to maintain the ban for now.
Developing story. This report will be updated.
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