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Same-sex marriage has been legal inSouth Carolina since a federal court order took effect on November 20, 2014. Following the 2014 ruling of theFourth Circuit Court of Appeals inBostic v. Schaefer, which foundVirginia's ban on same-sex marriage unconstitutional and setprecedent on every state in the circuit, one judge acceptedmarriage license applications from same-sex couples until theSouth Carolina Supreme Court, in response to a request byAttorney GeneralAlan Wilson, ordered him to stop. TheU.S. District Court for the District of South Carolina ruled the state's ban on same-sex marriage unconstitutional on November 12 inCondon v. Haley, with implementation of that decisionstayed until noon on November 20. Another court ruling,Bradacs v. Haley, on November 18 had ordered the state to recognize same-sex marriages from other jurisdictions.
Previously, South Carolina had banned same-sex marriage both bystatute since 1996 and in itsState Constitution since 2007. Polling suggests that a majority of South Carolina residents support the legal recognition of same-sex marriage, with a 2024Public Religion Research Institute poll showing that 54% of respondents supported same-sex marriage.[1]
In 1996, theSouth Carolina House of Representatives, by a vote of 82 to 0, passed astatute definingmarriage as "between one man and one woman". TheSouth Carolina Senate later passed the bill on avoice vote, and GovernorDavid Beasley signed it into law.[2]
On March 1, 2005, the House of Representatives approvedAmendment 1, aconstitutional amendment banning same-sex marriage and any "lawful domestic union", by a vote of 96 to 3. The Senate passed the amendment by a vote of 42 to 1 on April 13. South Carolina voters approved the amendment on November 7, 2006. Constitutional amendments in South Carolina need to be approved by two-thirds of each house of theGeneral Assembly, approved by the people in an election, and then ratified again by a majority of each house of the Assembly. On January 25, 2007, the House of Representatives ratified the amendment 92 to 7, and the Senate voted 41–1 to ratify the amendment on February 27.[3][4][5]
On August 28, 2013, Tracie Goodwin and Katie Bradacs, who hadmarried in the District of Columbia in April 2012 and were raising three children, filed alawsuit,Bradacs v. Haley, in theU.S. District Court for the District of South Carolina, challenging the state statute and constitutional amendment that denied legal recognition to same-sex marriages established in other jurisdictions. The plaintiffs were astate highway patrol officer and a disabled veteran of theU.S. Air Force. They named GovernorNikki Haley and Attorney GeneralAlan Wilson as defendants. The case was initially assigned to U.S. District JudgeJoseph F. Anderson,[6][7] but was reassigned to JudgeJ. Michelle Childs on October 18, 2013. On April 22, 2014, Judge Childsstayed proceedings inBradacs until theFourth Circuit Court of Appeals ruled on theVirginia case ofBostic v. Schaefer, but she allowed briefing to continue.[8]
Bostic v. Schaefer was resolved in favor of same-sex marriage on October 6, 2014, with the decision of theU.S. Supreme Court not to hear anappeal in the case,[9] leavingBostic as bindingprecedent on federal courts in South Carolina.[10] Attorney General Wilson announced the same day that he would continue to defend the state's same-sex marriage ban inBradacs.[11] Judge Childs then lifted the stay of proceedings inBradacs,[12] and the plaintiffs filed a motion forsummary judgment on October 20.[13] On November 18, Judge Childs issued a permanentinjunction against enforcement of the same-sex marriage ban only to the extent that the state refused to recognize "valid marriages of same-sex couples entered into in other states or jurisdictions and otherwise meet the prerequisites for marriage in the State of South Carolina, except that they are of the same sex" or denied equal treatment to the same.[14]
On October 8, 2014,Charleston County Probate Judge Irvin Condon, citing the ruling inBostic, accepted amarriage license application presented by a lesbian couple, Colleen Condon and Nichols Bleckley, the first in the state.[15] In other parts of the state, probate judges refused to accept marriage license applications pending a final decision inBradacs. Attorney General Wilson filedWilson v. Condon, requesting an emergency injunction from theSouth Carolina Supreme Court to halt the issuance of marriage licenses to same-sex couples. On October 9, the Supreme Court agreed to halt the issuance of licenses pending the resolution ofBradacs. Because a South Carolina couple cannot receive a marriage license until 24 hours after their marriage license application was accepted, no marriage licenses were issued to same-sex couples in South Carolina during this time.[16] On October 15, 2014, citingBostic, Condon and Bleckley, represented byLambda Legal andSC Equality, filed suit in federal district court seeking the right to marry. The defendants included Governor Haley, Attorney General Wilson, and Judge Condon, the state judge who was enjoined from licensing same-sex marriages a week earlier by the South Carolina Supreme Court.[17] On November 12, U.S. District JudgeRichard Gergel ruled for the plaintiffs andstayed his decision until noon on November 20.[18] He wrote:
This Court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same-sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional inBostic. […] The Court finds thatBostic controls the disposition of the issues before this Court and establishes, without question, the right of Plaintiffs to marry as same sex partners. […] Based upon the foregoing, the Court hereby declares that S.C. Code Ann. § 20-1-10(B)-(C), S.C. Code Ann. § 20-1-15 and S.C. Constitution Art XVII, § 15, to the extent they seek to prohibit the marriage of same sex couples who otherwise meet all other legal requirements for marriage in South Carolina, unconstitutionality infringe on the rights of Plaintiffs under theDue Process Clause andEqual Protection Clause of theFourteenth Amendment of the United States Constitution and are invalid as a matter of law.
The Fourth Circuit Court of Appeals denied the state's request for a stay pending appeal or a temporary stay on November 18.[19] Attorney General Wilson asked Chief JusticeJohn Roberts, as Circuit Justice for the Fourth Circuit, for an emergency stay pending appeal later that day.[20] He made an argument other states in similar cases had not made to the Supreme Court, that the principle offederalism known as the "domestic relations exception"—which restricts the role of federal courts in certain areas reserved to the states—required clarification.[21] Justice Roberts referred the request to the full court, which denied it on November 20, with JusticesAntonin Scalia andClarence Thomas dissenting.[22] On the morning of November 19, 2014, Judge Condon began to issue marriage licenses to those who had applied prior to the South Carolina Supreme Court's order. Kayla Bennett and Kristin Anderson held their marriage ceremony outside of the Charleston County Probate Court, marking the state's first licensed same-sex marriage.[23] Someprobate courts began processing marriage license applications for same-sex couples on November 19, and more of them on November 20.[24]Lexington County Probate Judge Daniel Eckstrom announced on November 20 that his county would continue to deny marriage licenses to same-sex couples until ordered to do so or "until this matter [was] conclusively resolved". The county reversed itself that same day and began to issue marriage licenses.[25]
On December 1, Wilson asked the Fourth Circuit to suspend proceedings inCondon pending U.S. Supreme Court action on writs ofcertiorari on othersame-sex marriage cases from theSixth Circuit Court of Appeals. He told the court that he would also be submitting a request forcertiorari before judgment inCondon, and that the other parties to this case did not object to his request.[26] On December 16, the Fourth Circuit consolidatedBradacs andCondon asBleckley v. Wilson and put proceedings on hold pending action by the U.S. Supreme Court oncertiorari petitions.[27] On June 26, 2015, the U.S. Supreme Court ruled inObergefell v. Hodges that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection clauses of the Fourteenth Amendment. The decision legalized same-sex marriage nationwide in theUnited States. In August 2015, Judge Gergel ordered Wilson in his official capacity as Attorney General to pay more than$134,000 inattorney's fees to the plaintiffs who successfully challenged the state's ban on same-sex marriage.[28]
On March 13, 2014, Cathy Swicegood filed fordivorce from Polly Thompson in a state trial court, alleging that they werecommon-law married. Swicegood and Thompson had been together for 13 years, shared a home, bank accounts and other property, and Swicegood was also covered under Thompson'shealth insurance plan. The lawsuit asked that a judge officially recognize Swicegood's union with Thompson and order that their joint property be equitably divided. Thompson filed a motion to dismiss for lack ofsubject-matter jurisdiction because the parties were not married and lacked the capacity to marry at the time. A family court dismissed Swicegood's action on May 7, 2014, ruling that a common-law marriage between two persons of the same sex was not legally possible according to state statutes. Swicegood appealed. In an unpublished opinion, theSouth Carolina Court of Appeals laterremanded the case back to the family court with instructions to "consider the implications ofObergefell on its subject-matter jurisdiction". The family court ruled upon remand that the couple could not have formed a common-law marriage because the state's same-sex marriage ban was in place throughout the couple's 13 years together. The Court of Appeals affirmed the lower court's decision upon appeal on July 1, 2020, determining that South Carolina prohibited same-sex couples from "forming the requisite intent to be married at common-law" prior to the November 2014 decision inCondon.[29] On November 10, 2021, the South Carolina Supreme Court, basing its reasoning onObergefell, which held that state same-sex marriage bans werevoidab initio, dispensed with briefing andvacated the provision of the Court of Appeals' opinion that same-sex couples could not form common-law marriages prior to November 2014. However, because Swicegood did not hold herself out as married during the times she lived with Thompson, the Supreme Court upheld the finding that no common-law marriage existed. South Carolina prospectively abolished common-law marriage in 2019 inStone v. Thompson.[30]
In January 2016, a group of fiveRepublican lawmakers and oneDemocrat introduced theSouth Carolina Natural Marriage Defense Act to the General Assembly.[a] The bill sought to prohibit state officials from marrying same-sex couples and require the Attorney General to defend any official who is sued or ordered by a federal judge to issue marriage licenses to same-sex couples.[31] It died at the end of the legislative session in June 2016.[32] A similar bill was introduced and subsequently defeated inTennessee that same year. On February 15, 2018, six Republican lawmakers introduced theMarriage and Constitution Restoration Act to the General Assembly.[b][33] The bill died without any legislative action on May 10, 2018, when the Assemblyadjournedsine die. Had the bill been approved, it would have defined marriage as a "union between a man and a woman", declared all same-sex marriages "parody marriages" and prohibited the state from recognizing such "parody marriages". The bill would have thus been in violation ofObergefell, the 2015 Supreme Court ruling that same-sex couples have a constitutional right to marry.[34]
During an October 2022 gubernatorial debate, GovernorHenry McMaster said that he would enforce a same-sex marriage ban in South Carolina if the U.S. Supreme Court were to overturnObergefell,[35] despite the majority of South Carolinians supporting same-sex marriage according to polling.[36]
TheIndian Civil Rights Act, also known asPublic Law 90–284, primarily aims to protect the rights ofNative Americans but also reinforces the principle of tribal self-governance. While it does not grant sovereignty, the Act affirms the authority of tribes to govern their own legal affairs. Consequently, many tribes have enacted their own marriage and family laws. As a result, theCondon ruling and the Supreme Court'sObergefell ruling did not automatically apply to tribal jurisdictions. There is only one federally recognized tribe in South Carolina: theCatawba Nation. It is unclear if same-sex marriage is legal on the reservation as tribal officials have not publicly commented on the issue.[37]
Native Americans have deep-rooted marriage traditions, placing a strong emphasis on community, family and spiritual connections. While there are no records of same-sex marriages being performed in Native American cultures in the way they are commonly defined inWestern legal systems, many Indigenous communities recognize identities and relationships that may be placed on the LGBT spectrum. Among these aretwo-spirit individuals—people who embody both masculine and feminine qualities. In some cultures, two-spirit individuals assigned male at birth wear women's clothing and engage in household and artistic work associated with the feminine sphere. Historically, this identity sometimes allowed for unions between two people of the same biological sex.[38] In the case of the Catawba, a lot of traditional knowledge was lost in the aftermath of colonization, and so there is no strong evidence that that their culture recognized an institutionalised two-spirit status. A literal translation of the term "two-spirit" in theCatawba language would behįnda nąpαri.[39] Catawba marriage customs forbade first-cousin marriages, and most marriages were monogamous,matrilineal andmatrilocal. In courtship, the man approached the woman's parents to ask permission to marry their daughter, though the woman's consent was also required. Chiefs (yé mirαhé) occasionally practicedpolygyny.[40]
Data from the2000 U.S. census showed that 7,609 same-sex couples were living in South Carolina. By 2005, this had increased to 10,563 couples, likely attributed to same-sex couples' growing willingness to disclose their partnerships on government surveys. Same-sex couples lived in allcounties of the state and constituted 1.1% of coupled households and 0.6% of all households in the state. Most couples lived inCharleston,Greenville andRichland counties, but the counties with the highest percentage of same-sex couples wereAllendale (0.79% of all county households) andCalhoun (0.73%). Same-sex partners in South Carolina were on average younger than opposite-sex partners, and more likely to be employed. However, the average and median household incomes of same-sex couples were lower than different-sex couples, and same-sex couples were also far less likely to own a home than opposite-sex partners. 21% of same-sex couples in South Carolina were raising children under the age of 18, with an estimated 3,370 children living in households headed by same-sex couples in 2005.[41]
Richland County, home to the state capital ofColumbia, had issued 422 marriage licenses to same-sex couples by June 26, 2016, one year after theObergefell decision. In that same time period, Charleston County, South Carolina's third-most populous county, had issued 387 licenses to same-sex couples.[42]
The2020 U.S. census showed that there were 7,810 married same-sex couple households (3,159 male couples and 4,651 female couples) and 6,565 unmarried same-sex couple households in South Carolina.[43]
The August 2011Public Policy Polling (PPP) survey found that 21% of South Carolina voters thought same-sex marriage should be legal, while 69% thought it should be illegal and 10% were not sure. A separate question on the same survey found that 48% of voters supported the legal recognition of same-sex couples, with 19% supporting same-sex marriage, 29% supportingcivil unions but not marriage, 51% favoring no legal recognition and 1% being undecided.[44] The December 2012 PPP survey found that 27% of South Carolina voters thought same-sex marriage should be legal, while 62% thought it should be illegal and 11% were not sure. A separate question on the same survey found that 54% of voters supported the legal recognition of same-sex couples, with 25% supporting same-sex marriage, 29% supporting civil unions but not marriage, 43% favoring no legal recognition and 3% being undecided.[45]
