AG Wilson Asks SC Supreme Court to Address Issue of Same Sex Marriage In South Carolina

UPDATE: The SC Supreme Court has issued an order, which basically stays all SC probate courts from issuing marriage licenses to same-sex couples until the federal court litigation is resolved. The status quo ante of no same-sex marriage will remain in place.

If you're following the same-sex marriage news these days, you've seen a lot of action in South Carolina this week.

First, on Monday, the United States Supreme Court decided not to hear a case that involved same-sex marriage, with the implication being that SCOTUS wasn't going to overturn a decision banning same-sex marriage. Everyone basically interpreted this to mean that SCOTUS wasn't going to support any ban on same-sex marriages.

Accordingly, on Wednesday the Charleston County Probate Court started accepting applications for marriage licences to same-sex couples. Note, this is different than actually granting the marriage license, but it's tantamount to doing so.

Also on Wednesday, there was a rally at the SC Statehouse to support what the Charleston County Probate Court was doing. At the rally, the supporters of same sex marriage encouraged same-sex couples to apply for marriage licenses throughout the state of South Carolina. Additionally, the group called on Alan Wilson to simply do nothing and not file any action to enforce the provision in our State Constitution banning same-sex marriage.

However, Alan Wilson decided that he was going to ask the SC Supreme Court to resolve this issue. His filing is here. [PDF]

I think that's the right move by Alan Wilson. We have a law. In fact, it's part of our State Constitution. We can't just ignore it without a court formally declaring it to be invalid. If you go read the petition that Wilson filed, that's basically what he's saying.

"Moreover, a public official may not refuse to follow State law because 'he thought the law unconstitutional.' It is, instead, his or her duty to 'follow it until judicially declared invalid.' Trustees of Wofford College v. Burnett, 209 S.C. 92, 104-5, 395 S.E.2d 155 (1946).

This is about the rule of law and legal process. We can't just have Probate Judges in each county deciding if they are or are not going to follow the law. Once the law is ruled unconstitutional, which it will be, then the Probate Courts can issue licences - not before.

Alan Wilson is doing the right thing by filing this petition.

You can't skip steps.

SC Supreme Court Issues Opinion In Harrell vs. Attorney General

REVERSED! You can read the opinion here. I'll have comments later.

South Carolina Supreme Court Rules Against Gamecock Club (I Join in the Dissent)

I didn't get a chance to post on this when it came out, but this opinion from the South Carolina Supreme Court is definitely worth exploring.

On April 2, 2014, by a 4-1 vote, the South Carolina Supreme Court held that the University of South Carolina could not charge an additional seat fee as a prerequisite for purchasing tickets to Charles Lee, who had become a "Lifetime Full Scholarship" level member of the Gamecock Club. 

The language in the contract is that Mr. Lee had "the opportunity to purchase tickets" from the Gamecock Club. Mr. Lee took the position that the Gamecock Club could not subsequently require him to pay additional seat licencing fees, and the South Carolina Supreme Court agreed with him.

Writing for the majority, Justice Kittredge stated:

Were we to accept the University's view of the Agreement, it would mean Lee received little or nothing in the bargain, for the University would always have the ability to demand additional consideration for the opportunity to purchase tickets.

This seems incorrect to me, and the problem is because the operative word is "opportunity". The seat tax was not additional consideration. The seat tax is simply a new condition precedent to have the the opportunity to buy tickets.

Respectfully, I have to side with Justice Pleicones' dissent in this case. Writing a lone dissent, Justice Pleicones stated:

Looking to the plain language, it provides that Lee would be a "Lifetime Full Scholarship Member" with "the opportunity to purchase tickets." Lee has received exactly what he bargained for...I am unable to find any language prohibiting additional fees. Further, the majority acknowledges that a court must enforce an unambiguous contract regardless of its wisdom, folly, apparent  unreasonableness, or the parties' failure to guard their rights carefully.

I have to agree.

The language of the contract said that Mr. Lee would have "the opportunity to buy tickets", and requiring the payment of an additional seat tax does has not deprived Mr. Lee of that opportunity. If he wanted to lock in a certain price, or exempt himself from any future fees, he should have done so.