Justices may tackle same-sex marriage

South Carolina Equality Board Chairman Jeff Ayers speaks at a Statehouse rally last fall in support of same-sex marriage.

The U.S. Supreme Court will discuss Friday whether to review a same-sex marriage case during its coming term - and finally create a precedent for the entire nation to follow.

Many people on both sides of the gay marriage aisle, across South Carolina and beyond, want the nation's highest court to review a case and decide the issue by the close of its term in June.

"I'd like to see it resolved. I think everyone would like to see it resolved," said Malissa Burnette, a lead attorney in the Charleston-based federal case that opened the doors to gay marriages in South Carolina.

The justices could agree to review any number of five cases at issue, most from the Cincinnati-based 6th U.S. Circuit Court of Appeals, the only one in the country to uphold a state ban on same-sex marriages. They also could decline to review any gay marriage cases or postpone them.

Whatever they decide, it will come barely three months after the justices declined to review a 4th U.S. Circuit Court of Appeals case that overturned Virginia's gay marriage ban. That spawned a national flurry of judicial actions legalizing gay marriages in most states including South Carolina, which is in the 4th Circuit.

Since then, the justices have denied requests for stays that would have halted same-sex marriages in some of those states.

However, the 6th Circuit's ruling created dissension among the federal circuits, making it much more likely the Supreme Court will review a case now, legal experts said.

"There's a good reason to take it up," Burnette said. "I think now is the time."

Same-sex marriages are legal, or about to become so, in 36 states so far. Most recently, they became legal in Florida on Tuesday. However, 14 other states still have constitutional amendments banning gay marriages, according to the Pew Research Center.

That creates a situation in which same-sex couples' marriages - and myriad rights and legal protections that come with them - are recognized in most states but not all.

"The odds are high the Supreme Court will have to take a case," said Armand Derfner, a Charleston civil rights attorney who has argued and won five cases before the high court. "Otherwise, there is too much confusion."

But what if the court upholds same-sex marriage bans? About 71 percent of Americans now live where gay couples can marry, according the American Civil Liberties Union.

"There's a general sense that this horse is out of the barn," said Susan Dunn, the ACLU of South Carolina's legal director. "It would be extremely difficult now for the U.S. Supreme Court to do something that disrupts the lives of all of these people and all of these families."

If the justices do review a case, some in South Carolina hope the cases here will play a role.

"I would like very much for the Supreme Court to add our case to the mix and provide us with the last word on the unlawfulness of these marriage bans," said John Nichols, an attorney for a lesbian couple who successfully sued to get their marriage in Washington, D.C., recognized in their home state of South Carolina.

The two South Carolina appeals, which the 4th Circuit has consolidated, are on hold until the U.S. Supreme Court decides its course of action.

In both cases, separate federal judges overturned South Carolina's constitutional amendment, approved by voters and legislators, defining marriage as only between a man and woman.

State Attorney General Alan Wilson has fought to uphold the amendment, even asking the U.S. Supreme Court to halt same-sex marriages in South Carolina. The justices declined to do so in November, and Wilson appealed.

Wilson declined to comment Thursday. However, since the 6th Circuit ruling, he has voiced hope that the Supreme Court will hear a case and settle the matter nationally.

Reach Jennifer Hawes at 937-5563 or follow her on Twitter at @JenBerryHawes.