- The Washington Times - Wednesday, November 12, 2014

A South Carolina official said the state will appeal a federal ruling that overturns a voter-passed amendment, saying the U.S. Supreme Court must “resolve the matter.”

On Wednesday, U.S. District Judge Richard Mark Gergel ruled in favor of a lesbian couple and struck down South Carolina’s law that only permits man-woman marriage.

South Carolina must follow the ruling of the 4th Circuit Court of Appeals, which in July struck Virginia’s ban on gay marriage, and, having been denied review by the Supreme Court, is now binding law on all the states in its jurisdiction, Judge Gergel wrote.

He stayed his ruling until Nov. 20 to permit an appeal in the case, Condon v. Haley.

Mr. Wilson said the ruling came “as no surprise.” But it did not change “the constitutional obligation of this office to defend South Carolina law,” and the state “will immediately appeal to the Fourth Circuit,” he said.

Noting that the 6th Circuit Court of Appeals recently broke with other circuits and upheld traditional marriage in four states, it “means it is much more likely that the U.S. Supreme Court could resolve the matter at the national level,” said Mr. Wilson.

“We believe this office has an obligation to defend state law as long as we have a viable path to do so,” he said, adding that South Carolina’s marriage laws are “not identical” to those in other states and, “based on the time-honored tradition of federalism,” should “have their day in court at the highest appropriate level.”

Currently, at least 32 states permit gay marriage, including 13 states that were compelled to do so in October when the Supreme Court declined to review gay marriage cases in the 4th, 7th and 10th Circuit Courts of Appeal.

Legal fights over gay marriage are continuing in many states, including some where gay nuptials have already been legalized:

— The Supreme Court refused Wednesday to stay an appeals-court ruling overturning Kansas’ voter-passed marriage law, meaning gay couples can start receiving marriage licenses there.

“Now, this is a day to celebrate,” said Tom Witt, executive director of Equality Kansas, which supports gay marriage.

However officials in the conservative state, including Gov. Sam Brownback, said Wednesday they would continue to resist.

Attorney General Derek Schmidt said the ruling applies only in Douglas and Sedgwick counties, where the American Civil Liberties Union filed the originating lawsuits, and not necessarily in the state’s other 103 counties.

— In Hawaii, where gay marriage was legalized in 2013, the Hawaii Supreme Court has agreed to hear arguments in December from a state lawmaker who says gay marriage was improperly enacted.

Hawaii State Rep. Bob McDermott will argue Dec. 18 that Democrat-led lawmakers and former Gov. Neil Abercrombie misconstrued the 1998 voter-passed marriage amendment to mean that they could legalize gay marriage.

The nearly 70 percent of voters who added the words, “The legislature shall have the power to reserve marriage to opposite-sex couple,” to the state constitution expected lawmakers to uphold man-woman marriage, not end it, Mr. McDermott said.

— A federal judge in Mississippi heard arguments Wednesday in a lawsuit filed by gay couples that seeks to overturn that state’s voter-passed marriage law.

— Idaho and Alaska state officials are seeking en banc review of a 9th Circuit Court of Appeals ruling that struck down their marriage laws.

In a separate filing, an Idaho attorney, acting on behalf of the Coalition for the Protection of Marriage, is asking the full 9th Circuit to review a related Nevada gay marriage ruling, especially since there is the appearance of judicial “panel packing.”

According to a statistical analysis, it is “unlikely” that, with 29 active judges, two judges would be randomly assigned to sit on six of 11 recent gay marriage cases, attorney Monte Neil Stewart wrote.

A recent New York Times article on the coalition’s petition for review said the court had used “a different procedure” for assigning cases on a fast track, like the marriage case, and according to 9th Circuit Chief Justice Alex Kozinski, a senior judge like Judge Stephen R. Reinhardt was “disproportionately likely” to be a presiding judge.

In a Nov. 11 letter to Chief Justice Kozinski, Mr. Stewart noted that three other judges were originally assigned to the Nevada marriage case, and two other senior judges were hearing cases.

“Panel packing” refers to the improper practice of pre-selecting judges for particular cases to secure a particular outcome. Courts typically block this practice by using computer-generated assignments and other procedures.

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