While I am not a big fan of boxing, the position of South Carolina as articulated in its recent court filings regarding marriage equality bring to mind a battered boxer whose flailing attempts to stay in the fight are ultimately counterproductive, to the point he may even trip over his own feet and fall down.
Specifically, I am thinking of how Alan Wilson, the attorney general, and his office defending the equality lawsuit in Bradacs v Haley have reached the point where they are taking inconsistent positions in different courts in their last ditch attempt to garner votes and gain a few more weeks of inequality, apparently welcomed by the majority of South Carolina voters.
While it is unlikely to be the deciding factor, it is interesting to note that they are falling afoul of the principal of estoppal by pleading, which says that you cannot take one position in one legal action and a conflicting one elsewhere.Bostic v. Schaefer
Of course, the problem for South Carolina began when the Supreme Court declined to hear an appeal from the Fourth Circuit Court of Appeals in the Virginia case, Bostic v. Schaefer Bostic v. Schaefer, of course, ruled that Virginia had to allow marriage equality. Since the Fourth Circuit controls federal courts in both South Carolina and Virginia, that meant that the ruling on the appellate level would have to be followed by South Carolina federal courts. The pending case of Bradacs v. Haley, which had been stayed in South Carolina federal court pending the actions of the Fourth Circuit and the Supreme Court, would now be reopened and, basically, the judge (Michelle Childs, a very capable judge and an Obama appointee) would have little choice but to follow the direction of the higher courts.
Other states, such as North Carolina, essentially recognized the inevitable and gave up the fight, allowing marriage licenses to be issued without discrimination as to the applicants.
But not South Carolina.
Unfortunately for Wilson and Haley, defending the Bradacs case, the matter quickly became more complicated. A probate court judge in Charleston, one of the more liberal enclaves of the state, determined that, since the Supreme Court had let stand the Fourth Circuit decision, which was binding on South Carolina, it was clear that marriage equality had arrived in South Carolina (or, technically, that it was now clear that discriminating based on sex of the applicants for marriage licenses was unconstitutional). Thus, judge Condon began issuing marriage licenses freely.
This is where the scrambling began. Wison's office realized that they could soon have an avalanche of marriage licenses issued to same-sex marriages, even before the local federal court ruled. To stop that from happening, they rushed to the supreme court of South Carolina and sought a stay against Condon and everyone else, stopping them from issuing licenses until the federal court ruled. Petiition for Stay
This is where they started tripping over themselves. To justify a stay, South Carolina argued that "Until the federal courts rule on this very important matter, in which the people of the State voted overwhelmingly, it is not legally proper to issue such licenses." It is hard not to take this statement as a declaration that the federal court needs to rule, up or down, on marriage equality, after which South Carolina will have to follow. For sure, Wilson is not saying in that motion that the South Carolina supreme court should rule on the matter independently and ignore what the federal court does.
Fast forward a few days to the Bradacs case, where now Wilson is doing his best to hold off the inevitable. Yesterday, the state filed its motion for judgment on the pleadings, asking Judge Childs to dismiss the Bradacs case. Motion for Judgment on the Pleadings A lot of the motion is simply a rehashing of the same arguments that have been used elsewhere. In fact, since the marriage litigation has been fought so thoroughly on both sides in so many places, at this point it is pretty certain that in any case both sides will be sure to trot out all the possible arguments. For the Bradacs case, of course, that means that since everything has already been argued and said, Judge Childs will not need to consider anything new, and will be bound to follow precedent in the Fourth Circuit and rule in favor of Bradacs and marriage equality.
In their effort to inject something new into the argument, Wilson and his staff argue that the Bostic case did not squarely address issues that need to be addressed this time around, so the court in Bradacs cannot simply follow precedent. Follow the link above and read the motion if you want, but it comes down to things like marriage being a matter for states, the wrong people being sued, and essentially that this is a matter for state courts to decide, not the federal courts.
As I point out at the beginning, it is probably not something the court needs to rely on, but that whole argument should be tossed out summarily - since here Wilson is arguing that the federal court should abstain from addressing the controversy -- when in the South Carolina supreme court he made the opposite argument - that state courts should hold off and wait to see how the federal court rules!
The good news is that despite these delaying tactics, everyone, probably including Wilson and Haley, knows how this is going to turn out. Bad news is they are gaining political points by needlessly wasting time and money.
It is, at least, good to see the opposition in disorder and on the run.