With numerous developments in marriage equality litigation occurring around the country, it can be difficult to keep up to date. Currently, there is a patchwork of states across the US in which same-sex marriage is legal. But, here in the South, marriage equality should soon no longer divide the Carolinas.

The Carolinas

Yesterday, November 12th, South Carolina’s ban on same-sex marriage was struck down as unconstitutional by a federal judge in that state—although, the ruling is temporarily on hold. This outcome seemed inevitable ever since a higher federal court ruled in July that Virginia’s nearly identical same-sex marriage ban was unconstitutional, and the US Supreme Court declined to review that decision in October.

Indeed, in North Carolina, two federal judges, one in Asheville and one in Greensboro, ruled that the decision in the Virginia case was binding on our state and required the conclusion that North Carolina’s ban on same-sex marriage was unconstitutional. Same-sex marriages began on October 10th. An appeal is pending.

In South Carolina, however, the Attorney General insisted that the ruling was not binding, and despite the marriage equality litigation pending in SC federal courts, no ruling was issued in those cases. In response, a new case was filed in SC on October 15th arguing that the decision on Virginia’s same-sex marriage ban was binding on South Carolina, and that case led to yesterday’s decision declaring the state’s ban unconstitutional.

For now, however, same-sex marriage licenses cannot be issued in SC until November 20th. During this time, the SC Attorney General has stated that he will file an appeal from the ruling and will likely seek a longer stay of the federal judge’s order.

The Appeals

Many commentators conclude that the appeals from the NC and SC decisions are futile. Those appeals will be decided by the 4th Circuit Court of Appeals, which has already ruled that Virginia’s ban violated the US Constitution. And, in reaching that decision, the 4th Circuit noted the similarity between the same-sex marriage ban in Virginia and those in North and South Carolina. It would seem all of the arguments in support of the bans have been raised and rejected.

Other States

Although there has been a steady march towards marriage equality across the US, supporters of same-sex marriage bans were buoyed by a recent ruling from the US Court of Appeals for the 6th Circuit. On November 6th, the 6th Circuit upheld same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee. In a 2-to-1 vote, the Court reasoned that the definition of marriage was an issue that should be decided by the voters not judges, provoking a sharply worded rebuke by the dissenting judge.

Circuit Split

The 6th Circuit’s decision means that we now have what is commonly referred to as a “circuit split” among our federal courts of appeals. This means that federal courts of appeals in different parts of the US have reached different conclusions on the same issue. The 6th Circuit’s decision upholding same-sex marriage bans is in contrast to the decisions by the 4th, 7th, 9th, and 10th Circuit Courts of Appeals, which concluded that such bans violate the US Constitution.

The US Supreme Court, however, has the final say on what laws violate the US Constitution. And, the division between the federal circuit courts of appeals means that the high court will most likely take up one of these cases and settle the matter for all of the United States, when it is requested to do so.

When this will occur is difficult to know at this point. The litigants in the 6th Circuit may now appeal their case directly to the US Supreme Court. If they do, it is possible that the Supreme Court could accept the case this term and issue a decision by the summer of 2015. But, given the tight deadlines, the case may have to wait until the next term, in which instance a decision would likely not be forthcoming until 2016. It is also possible that the litigants in the 6th Circuit will seek a review of that decision by a larger panel of judges on the 6th Circiut Court of Appeals. Such a move would further delay any possible review by the US Supreme Court.

Many other cases challenging same-sex marriage bans are still pending in other states around the US. As it stands now, same-sex marriage is legal in 33 of our 50 states, Washington D.C., and parts of Missouri. As noted above, same-sex marriages may begin as soon as November 20th in South Carolina.

For the latest updates and a discussion of the impact of marriage equality on your life, Sodoma Law invites you to come to our December 1st discussion panel, “Same-Sex Marriage: Planning Your Family’s Future In A Marriage Equality State.” The event is free and open to the public. Click here for further details.

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