Legislature: Gay marriage? Not so fast

South Carolina's marriage license application has been changed to add spouse and spouse.

State taxes can be filed jointly for same-sex couples who marry, and returns can be amended for the years a couple has been legally wed.

State agencies moved quickly to comply with the ruling of U.S. District Judge Richard Gergel, who struck down South Carolina's ban on gay marriage last November.

Meanwhile, the South Carolina General Assembly is not done with the issue.

Four bills are pending. One would absolve state employees from punitive action if they do not want to issue marriage licenses to same-sex couples. Another would prohibit any state agency from taking action against individuals or businesses who do not want to serve gay couples.

The third would strip away all money from any probate court that issued licenses to same-sex couples.

And the fourth is to be debated by the Senate Judiciary Committee Tuesday afternoon. It would call for a constitutional convention to amend the U.S. Constitution to define marriage as being between one man and one woman.

The bill was passed on a 3-2 vote by a subcommittee and sent to full committee. The debate is scheduled for 3 p.m. in Room 308 of the Gressette Building.

Victoria Middleton, the executive director of the ACLU, called the convention bill extreme and said similar legislation had been turned down in Oklahoma and Texas.

"Even Alabama, where the chief justice is trying single-handedly to block freedom to marry, doesn't have such an extreme bill," she said.

Two cases in South Carolina ended the state's ban on gay marriage and forced the state to recognize out-of-state marriages late last year. Gergel ruled in a case in which two Charleston women sued after being denied a marriage license. The other involved two women who had been married in Washington, D.C.

U.S. District Judge Michelle Childs found that South Carolina must recognize out-of-state marriages. Both judges found that South Carolina's ban was discriminatory and therefore in violation of the U.S. Constitution.

South Carolina's law is rooted in an amendment to its constitution, which was added after nearly 80 percent of voters approved it in 2006. A poll released earlier this month by Winthrop University found that almost 53 percent of South Carolina respondents oppose gay marriage.

State Rep. Bill Chumley of Spartanburg County said he introduced the bill to withhold funding for Probate Courts that issue same-sex marriage licenses because the state constitution expressly says marriage is between a man and a woman.

"It's my duty to uphold the constitution when a federal judge comes in and tries to supersede," he said.

A probate court issuing licenses to same-sex couples is violating the law, he said.

"If the definition of marriage is not one man or one woman then what is it? It is anything else," he said. "This has nothing to do with gay people. They can do what they want. It has to do with the state sanctioning their lifestyle."

Columbia lawyer John Nichols, who represents the couple married in Washington, said federal law, by design, makes it difficult to amend the constitution.

Congress, in a concurrent resolution, must pass the amendment, which is then sent to the states for ratification. Three-fourths of the state legislatures must approve.

"It's an impossibility with this do-nothing Congress," he said.

The other route to an amendment would be for two-thirds of state legislatures to ask for a constitutional convention. This has never been done.

"Maybe they could get 34 states, but I doubt it," Nichols said.

He also said the proposal to absolve state employees of wrongdoing for not issuing licenses to same-sex couples is de facto discrimination.

"Government is not some amorphous entity," he said. "Government employees are how the government acts."

He said, what would happen if someone believed African Americans should not vote and refused to accept a voter registration form?

"I learned civics in the seventh grade," he said. "I just can't understand why grownups forget it. Or they don't care. Either way it's going to end up costing the government."

More lawsuits and more legal bills, he said. Already the state is facing a $150,000 legal bill in the Charleston case. A court ruling on whether the state has to pay that much is on hold until the U.S. Supreme Court rules on gay marriage.

The Supreme Court will hear 2.5 hours of oral arguments on April 28 and will rule by late June. The court took the case after one federal appeals court ruled that only states could define marriage laws. Four other appeals courts have ruled that such bans are against the law.

The cases being argued come from Tennessee, Kentucky, Michigan and Ohio.

The South Carolina Attorney General Office is preparing its friend of the court brief in opposition to gay marriage, spokesman Mark Powell said.

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Nichols predicted no chance that the high court would rule against same-sex marriage.

Same-sex marriage is legal in 37 states.

Almost 400 businesses, including Google, Apple and Johnson & Johnson, and dozens of political conservatives have filed briefs urging the court to rule in favor of same-sex marriage. The Obama administration filed in support of gay marriage and the Human Rights Campaign submitted a brief with more than 200,000 signatures.

Those in favor of gay marriage had until March 6 to file.

Those who want to keep the bans in place have until April 3 to file briefs.

Meanwhile, in various state offices, change is under way, although Family Court action is still required to change the names of children on birth certificates and for both parents to be listed on the certificate, said Jim Beasley, a spokesman for the state Department of Health and Environmental Control, which issues birth certificates as well as provides marriage license applications.

"Same-sex parents can both be listed on a birth certificate if legal parentage is established for both through adoption or other court process," he said.

Columbia lawyer Malissa Burnette, who represented the Charleston women, said she believes both parents should be listed if the couple was married when the birth occurred.

There were a few glitches in the agencies initially, she said. Paperwork that wasn't ready, some delays at the Social Security office. A couple of probate judges were uncomfortable with the idea, but have since done as the court ruled.

Burnette said same-sex couples now should be thinking ahead, about wills, estate planning, insurance.

"Like all couples should," she said.

What's next is workplace equality, she said. South Carolina is one of 32 states where LGBT citizens can be fired for their sexual orientation.

"Congratulations on your marriage. You're fired," Burnette said.

Two years ago, Rep. James Smith of Richland County introduced a bill that would add sexual orientation to the state's employment laws. It never made it out of the Judiciary Committee.

Burnette said many large companies already have such policies as do some cities in South Carolina, including Columbia and Charleston.

The bills now pending that would circumvent the gay marriage rulings are a violation of the separation of powers and are unconstitutional, Burnette said.

"I hope someone will advise the legislators they can't do this," she said.

Middleton, of the ACLU, agreed the bills are unconstitutional but she cautioned against assuming they won't pass.

"This will institutionalize discrimination," she said. "We should not be using religion to discriminate."