The State of South Carolina ex rel Alan Wilson, Attorney General, Petitioner,
Irvin G. Condon, in his capacity as Judge of Probate Charleston County, Respondent.
H. Toal C.J.
Attorney General petitions this Court, in its original
jurisdiction, to enjoin respondent from issuing any licenses
for same-sex marriages pending a decision by United States
District Court Judge J. Michelle Childs in Bradacs v.
Haley, 3:13-CV-02351-JMC. Respondent has filed a return
requesting the Court deny the petition for original
jurisdiction, but requests that if the Court grants the
petition, respondent be given guidance on how to proceed.
Colleen Therese Condon and Anne Nichols Bleckley move to
intervene in the action and request an opportunity to reply
to the Attorney General's petition.
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014),
the Fourth Circuit Court of Appeals held that the statutory
scheme in Virginia banning same-sex marriage violates the
United States Constitution. The Fourth Circuit acknowledged
in its opinion that three other states in the Fourth Circuit
have similar bans, including South Carolina. See
S.C. Const. art. XVII, § 15; S.C. Code Ann. §§
20-1-10 through -15 (2014). The United States Supreme Court
denied the petition for a writ of certiorari in that case on
October 6, 2014. McQuigg v. Bostic, 14-251, 2014 WL
4354536 (U.S. Oct. 6, 2014). Based on that ruling, respondent
accepted a marriage application from a same-sex couple and
indicated he would issue a marriage license to the couple
after the expiration of the twenty-four hour waiting period.
See S.C. Code Ann. § 20-1-220 (2014).
Attorney General argues the Fourth Circuit's decision in
Bostic is not binding on this Court; therefore, the
constitutionality of South Carolina's law on same sex
marriage "remains a live issue." Indeed, the
Attorney General argues Baker v. Nelson, 409 U.S.
810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), which the United
States Supreme Court dismissed for want of a substantial
federal question,  continues to be binding on the courts of
this state absent a ruling to the contrary by a Federal
District Court in South Carolina or by this Court.
the issue of whether Article XVII, Section 15 of the South
Carolina Constitution, which provides, in relevant part, that
a marriage between one man and one woman is the only lawful
domestic union that shall be valid or recognized in the State
of South Carolina, and Sections 20-1-10 through -15, violate
the United States Constitution is actively under
consideration by Judge Childs in the Bradacs case.
We agree with the Attorney General that this issue is more
appropriately resolved in the pending litigation in the
Federal District Court. Avoiding concurrent litigation in
both the courts of this state and the Federal District Court
will foster wise judicial administration and conserve
judicial resources. Cf. Colorado River Water Conservation
District v. United States, 424 U.S. 800, 96 S.Ct. 1236,
47 L.Ed.2d 483 (1976) (discussing discretionary abstention
when concurrent proceedings are pending in the state and
federal courts or in multiple federal courts). Further,
although the parties in this matter and the federal case are
not identical, the principle underlying Rule 12(b)(8) of the
South Carolina Rules of Civil Procedure that duplicative
litigation should be avoided applies to this case.
we accept this case in our original jurisdiction for the
limited purpose of maintaining the status quo until the
Federal District Court can resolve the case pending before
it. We also grant the motion to intervene, but take no
further action on the motion with the exception that
movants' request to dismiss the Attorney General's
petition sua sponte is denied. Respondent and all
other probate judges are hereby directed not to issue
marriage licenses to same-sex couples pending a decision by
the Federal District Court in Bradacs. Further,
unless otherwise ordered by this Court, the issue of the
constitutionality of the foregoing state law provisions shall
not be considered by any court in the South Carolina Unified
Judicial System while that issue remains pending before the
Federal District Court.
W. Beatty, Kaye G. Hearn J.
concur with the order of the majority directing respondent
and all other probate judges not to issue marriage licenses
to same-sex couples, but would continue this Court's
order in effect pending final judgment in the
Bradacs federal court litigation.
M. Pleicones, John W. Kittredge J.
The Supreme Court of Minnesota held in
Baker that a Minnesota statute prohibiting the
marriage of persons of the same sex does not offend the
First, Eighth, Ninth or Fourteenth Amendments to the United
States Constitution. Ba ...