Same-sex marriage in South Carolina

In 1996, the South Carolina House of Representatives, by a vote of 82 to 0, passed a statute defining marriage as "between one man and one woman". The South Carolina Senate passed the bill on a voice vote, and Governor David Beasley signed it into law.[1]

On March 1, 2005, the House of Representatives approved Amendment 1, a constitutional amendment banning same-sex marriage and any "lawful domestic union", by a vote of 96 to 3. On April 13, 2005, the Senate passed the amendment by a vote of 42 to 1, and on November 7, 2006, South Carolina voters approved the amendment. Constitutional amendments in South Carolina need to be approved by two-thirds of each house of the General Assembly, approved by the people in an election, and then ratified by a majority of each house of the Assembly. On January 25, 2007, the House of Representatives ratified the amendment 92 to 7, and on February 27, 2007 the Senate voted 41–1 to ratify the amendment.[2][3][4]

On August 28, 2013, Tracie Goodwin and Katie Bradacs, who had married in the District of Columbia in April 2012 and were raising three children, filed a lawsuit, Bradacs v. Haley, in the U.S. District Court for the District of South Carolina, challenging the state statute and constitutional amendment that denied legal recognition to same-sex marriages established in other jurisdictions. The plaintiffs were a state highway patrol officer and a disabled veteran of the U.S. Air Force. They named Governor Nikki Haley and Attorney General Alan Wilson as defendants. The case was initially assigned to U.S. District Judge Joseph F. Anderson,[5][6] but was reassigned to Judge J. Michelle Childs on October 18, 2013. On April 22, 2014, Judge Childs stayed proceedings in Bradacs until the Fourth Circuit Court of Appeals ruled on the Virginia case of Bostic v. Schaefer, but she allowed briefing to continue.[7]

Bostic v. Schaefer was resolved in favor of same-sex marriage on October 6, 2014, with the decision of the U.S. Supreme Court not to hear an appeal in the case,[8] leaving Bostic as binding precedent on federal courts in South Carolina.[9] Attorney General Wilson announced the same day that he would continue to defend the state's same-sex marriage ban in Bradacs.[10] Judge Childs then lifted the stay of proceedings in Bradacs.[11] The plaintiffs filed a motion for summary judgment on October 20.[12] On November 18, Judge Childs issued a permanent injunction against enforcement of the same-sex marriage ban only to the extent that the state refused to recognize "valid marriages of same-sex couples entered into in other states or jurisdictions and otherwise meet the prerequisites for marriage in the State of South Carolina, except that they are of the same sex" or denied equal treatment to the same.[13]

On October 8, 2014, Charleston County Probate Judge Irvin Condon, citing the ruling in Bostic, accepted a marriage license application presented by a lesbian couple, Colleen Condon and Nichols Bleckley, the first in the state.[14] In other parts of the state, probate judges refused to accept marriage license applications pending a final decision in Bradacs. Attorney General Wilson filed Wilson v. Condon, requesting an emergency injunction from the South Carolina Supreme Court to halt the issuance of marriage licenses to same-sex couples. On October 9, the Supreme Court agreed to halt the issuance of licenses pending the resolution of Bradacs. Because a South Carolina couple cannot receive a marriage license until 24 hours after their marriage license application was accepted, no marriage licenses were issued to same-sex couples in South Carolina during this time.[15] On October 15, 2014, citing Bostic, Condon and Bleckley, represented by Lambda Legal and SC Equality, filed suit in federal district court seeking the right to marry. The defendants included Governor Haley, Attorney General Wilson, and Judge Condon, the state judge who was enjoined from licensing same-sex marriages a week earlier by the South Carolina Supreme Court.[16] On November 12, U.S. District Judge Richard Gergel ruled for the plaintiffs and stayed his decision until noon on November 20.[17] The Fourth Circuit Court of Appeals denied the state's request for a stay pending appeal or a temporary stay on November 18.[18] Attorney General Wilson asked Chief Justice John Roberts, as Circuit Justice for the Fourth Circuit, for an emergency stay pending appeal later that day.[19] He made an argument other states in similar cases had not made to the Supreme Court, that the principle of federalism known as the "domestic relations exception"–which restricts the role of federal courts in certain areas reserved to the states–required clarification.[20] Justice Roberts referred the request to the full court, which denied it on November 20, with Justices Antonin Scalia and Clarence Thomas dissenting.[21]

On the morning of November 19, 2014, Judge Condon began to issue marriage licenses to those who had applied prior to the South Carolina Supreme Court's order. Kayla Bennett and Kristin Anderson held their marriage ceremony outside of the Charleston County Probate Court, marking the state's first licensed same-sex marriage.[22] Some probate courts began processing marriage license applications for same-sex couples on November 19, and more of them on November 20.[23] Lexington County Probate Judge Daniel Eckstrom announced on November 20 that his county would continue to deny marriage licenses to same-sex couples "until this matter is conclusively resolved" or he is ordered to do so. The county reversed itself that same day and began to issue marriage licenses.[24]

On December 1, Wilson asked the Fourth Circuit to suspend proceedings in Condon pending U.S. Supreme Court action on writs of certiorari on other same-sex marriage cases from the Sixth Circuit Court of Appeals. He told the court that he would be submitting a request for certiorari before judgment in Condon as well and that the other parties to this case did not object to his request.[25] On December 16, the Fourth Circuit consolidated Bradacs and Condon as Bleckley v. Wilson and put proceedings on hold pending action by the U.S. Supreme Court on certiorari petitions.[26] On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection clauses of the Fourteenth Amendment. The decision legalized same-sex marriage nationwide in the United States. In August 2015, Judge Gergel ordered Wilson in his official capacity as Attorney General to pay more than $134,000 in attorney's fees to the plaintiffs who successfully challenged the state's ban on same-sex marriage.[27]

On March 13, 2014, Cathy Swicegood filed for divorce from Polly Thompson in a state trial court, alleging that they were common-law married. Swicegood and Thompson had been together for 13 years, shared a home, bank accounts and other property, and Swicegood was also covered under Thompson's health insurance plan. The lawsuit asked that a judge officially recognize Swicegood's union with Thompson and order that their joint property be equitably divided. Thompson filed a motion to dismiss for lack of subject-matter jurisdiction because the parties were not married and lacked the capacity to marry at the time. A family court dismissed Swicegood's action on May 7, 2014, ruling that a common-law marriage between two persons of the same sex was not legally possible according to state statutes. Swicegood appealed. In an unpublished opinion, the South Carolina Court of Appeals later remanded the case back to the family court with instructions to "consider the implications of Obergefell on its subject-matter jurisdiction". The family court ruled upon remand that the couple could not have formed a common-law marriage because the state's same-sex marriage ban was in place throughout the couple's 13 years together. The Court of Appeals affirmed the lower court's decision upon appeal on July 1, 2020, determining that South Carolina prohibited same-sex couples from "forming the requisite intent to be married at common-law" prior to the November 2014 decision in Condon.[28] On November 10, 2021, the South Carolina Supreme Court, basing its reasoning on Obergefell, which held that state same-sex marriage bans are void ab initio, dispensed with briefing and vacated the provision of the Court of Appeals' opinion that same-sex couples could not form common-law marriages prior to November 2014. However, because Swicegood did not hold herself out as married during the times she lived with Thompson, the Supreme Court upheld the finding that no common-law marriage existed. South Carolina prospectively abolished common-law marriage in 2019 in Stone v. Thompson.[29]

In January 2016, a group of five Republican lawmakers and one Democrat introduced the South Carolina Natural Marriage Defense Act to the General Assembly.[lower-alpha 1] The bill sought to prohibit state officials from marrying same-sex couples and require the Attorney General to defend any official who is sued or ordered by a federal judge to issue marriage licenses to same-sex couples. It would have thus been in violation of the U.S. Constitution,[30] and died at the end of the legislative session in June 2016.[31] A similar bill was introduced and subsequently defeated in Tennessee that same year. On February 15, 2018, six Republican lawmakers introduced the Marriage and Constitution Restoration Act to the General Assembly.[lower-alpha 2][32] The bill died without any legislative action on May 10, 2018, when the Assembly adjourned sine die. Had the bill been approved, it would have defined marriage as a "union between a man and a woman", declared all same-sex marriages "parody marriages" and prohibited the state from recognizing such "parody marriages". The bill would have thus been in violation of Obergefell v. Hodges, the 2015 Supreme Court ruling which found that same-sex couples have a constitutional right to marry, as well as the U.S. Constitution, which the lawmakers took an oath to uphold.[33]

During an October 2022 gubernatorial debate, Governor Henry McMaster said that he would enforce a same-sex marriage ban in South Carolina if the U.S. Supreme Court were to overturn Obergefell v. Hodges,[34] despite the majority of South Carolinians supporting same-sex marriage.[35]