Palmetto Cruelty, or, Traditional Virtues in South Carolina

So, this happened today:

The South Carolina Supreme Court is ordering state probate courts not to issue same-sex marriage licenses until a federal judge decides whether the state constitution’s ban on the unions is legal.

(Jeffrey Collins)

This is actually quite an interesting development. After all, as we learned yesterday:

A South Carolina court has accepted a same-sex couple’s application for a marriage license despite the state’s constitutional ban against the practice and the attorney general’s pledge to defend it.

(Associated Press)

The brief summary: The Supreme Court rejects appeals against marriage equality, with several states having lost their fedral court bids to uphold marriage bans. South Carolina accordingly begins issuing marriage licenses. South Carolina filed a motion in the state Supreme Court five minutes before the close of business, asking the Court to quash the licenses before the twenty-four hour waiting period required of all marriage licenses expired. The state Supreme Court accepted the motion and quashed licenses already issued.

It is true that the decision by the Charleston County Probate Court to begin issuing marriage licenses included the hinge of state Supreme Court approval, but here’s the thing about the court’s rationale: The state Supreme Court wants to wait for a federal ruling in another case, one that was put on hold by the SCOTUS decision to refuse the appeals. That case is an Article IV claim; the marriage ban will be struck.

In the end, this is just a deliberate delaying tactic in South Carolina, a wailing, gnashing effort to fend off the inevitable for the sake of simple human cruelty.

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Collins, Jeffrey. “South Carolina Supreme Court Halts Same-Sex Marriage Licenses”. The Huffington Post. 9 October 2014.

Associated Press. “South Carolina Supreme Court Halts Same-Sex Marriage Licenses”. The Huffington Post. 8 October 2014.

Smith, Bruce. “SC high court asked to halt gay marriage licenses”. The State. 8 October 2014.

One of the Most Fascinating Political Questions of the Year

“Despite my deep respect and admiration for Ginsburg and her inspiring career, I find her approach extraordinarily reckless. For all of our sakes, here’s hoping her gamble pays off.”

―Steve Benen

And as much as we all at This Is adore Mr. Benen’s insightful analyses, we do indeed disagree on occasion. And in the matter of whether or not Justice Ginsburg should retire, a simple question asserts itself: Do we trust Justice Ginsburg?

Benen’s overview is sufficient, let there be no doubt. And, to be certain, it is fair to point out that Ginsburg’s political calculations are not without risk. Furthermore, of course we all, as such, hope the gamble pays off. But in a time so uncertain as to cloud the prognostications of conventional wisdom, it also pays well to remember that not all things are equal. On paper, sure, the analysis suggesting Ginsburg is taking too big a risk by her political calculation is at least arguable. But what of the human terms? The variables resolve with diverse values, and in that, quite frankly, it is not a matter of who does one trust, Mr. Benen or Justice Ginsburg. The question to consider is whether or not one trusts Justice Ginsburg.

If her calculation is so dangerously awry, she ought not be on the Court in the first place. Those of us who not only appreciate her presence on the Court but also recognize the magnitude of what kindness history will speak of her tenure have every reason to trust Ruth Bader Ginsburg.

In a way, it does help to point out: Remember, she’s the one throwing down. And before anyone stutters about Scalia or Alito or whoever, that is beside the point. Ginsburg recently let the lower courts know what was on the minds of the Supremes and while Justice Scalia was in Texas explaining why the perspectives of self-centered supremacist bigots from the eighteenth century should describe the twenty-first, Ginsburg explained to law students in Minnesota that the nation’s ranking court would not get involved in the growing noise and bluster over same-sex marriage unless lower courts botch it all up.

The End of the Paperwork

It is accomplished. Mark the date. What started in Utah, in December 2013, with Kitchen v. Herbert, has come to its end.

U.S. District Court Judge Timothy Black has formally ruled that Ohio must recognize same-sex marriages performed legally in other states, but he put a hold on his order for the time being.

“Ohio’s marriage recognition is facially unconstitutional and unenforceable under any circumstances,” Black said in a written order he announced verbally 10 days ago.

Alan Johnson’s report for The Columbus Dispatch is charitable, at least compared to the ruling itself.

Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction

On December 23, 2013, this Court ruled in no uncertain terms that:

“Article 15, Section 11, of the Ohio Constitution, and Ohio Revised Code Section 3101.01(C) [Ohio’s “marriage recognition bans”], violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriage recognized and accepted as legal in Ohio, are denied their fundamental right to marriage recognition without due process of law; and are denied their fundamental right to equal protection of the laws when Ohio does recognize comparable heterosexual marriages from other jurisdictions, even if obtained to circumvent Ohio law.”

Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 997 (S.D.Ohio 2013).

The Obergefell ruling was constrained by the limited relief requested by the Plaintiffs in that case, but the analysis was nevertheless universal and unmitigated, and it directly compels the Court’s conclusion today. The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State’s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.¹

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¹ The Court’s Order today does NOT require Ohio to authorize the performance of same-sex marriage in Ohio. Today’s ruling merely requires Ohio to recognize valid same-sex marriages lawfully performed in states which do authorize such marriages.

In truth, it only goes downhill from there for traditionalist advocates. The ruling is a barely patient, nearly patronizing lecture on just how finished the marriage equality issue is as a matter of law. Indeed, the footnote on page one is almost ironic; at this point, authorizing the performance of same-sex marriages in the state of Ohio is a mere bureaucratic detail, with the only question being just how badly conservatives want to embarrass themselves. No wonder he reiterates the point later in the ruling.

It’s over. It’s been over since December brought a decision in Utah, Kitchen v. Herbert. After today’s ruling, there are no more encores.

Today’s ruling settled the outstanding Full Faith and Credit question. Judge Black wrote (p.37):

Because this Court has found that Ohio’s marriage recognition bans are constitutionally invalid on their face and unenforceable, Defendants no longer have a basis on which to argue that recognizing same-sex marriages on out-of-state adoption decrees violates Ohio public policy, and thus it is unnecessary to reach Plaintiffs’ arguments based on the Full Faith and Credit Clause. However, the Court determines that, as expressed infra in endnote i, Plaintiffs have also demonstrated a compelling basis on which to find, and the Court does so find, that Plaintiffs Vitale and Talmas have a right to full faith and credit for their New York adoption decree here in Ohio. ⁱ

And that endnote (pp.41-43), summarized in one quoted sentence:

In the context of judgments, the full faith and credit obligation is exacting, giving nationwide force to a final judgment rendered in a state by a court of competent jurisdiction.

The paperwork really is finished for the judicial branch. Not even Justice Scalia can help the traditionalists. The show ended in December. The house lights just came on. Don’t care where you go, you just can’t stay here.

Everything else is a matter of bureaucratic details and cleaning up the mess.

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Johnson, Alan. “Ohio ordered to recognize legal same-sex marriages from other states”. The Columbus Dispatch. April 14, 2014.

Black, Timothy S. “Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction”. Henry, et al. v. Himes, et al. United States District Court Southern District of Ohio (W.D.). April 14, 2014.

Shelby, Robert J. “Memorandum Decision and Order”. Kitchen, et al. v. Herbert, et al. United States District Court for the District of Utah Central Division. December 20, 2013.