COLUMBIA, S.C. (Dec. 9, 2015) –  A bill prefiled in the South Carolina House seeks to nullify the recent Supreme Court opinion recognizing gay marriage.

Rep. Bill Chumley (R-Spartanburg) and Rep. Mike Burns (R-Greenville) prefiled House Bill 4513 (H4513) on Dec. 3. The legislation declares “It is the policy of the State of South Carolina to defend natural marriage as recognized by the people of this State in the Constitution and laws of the State of South Carolina.”

It further asserts, “Natural marriage between one man and one woman as recognized by the people of this State remains the law in South Carolina, regardless of any court decision to the contrary. A court decision purporting to strike down natural marriage, including Obergefell v. Hodges, 135 S.Ct. 2584 (2015), is unauthoritative, void, and of no effect.”

Under the proposed law, the South Carolina Attorney General would be required to defend any state official “from any lawsuit regarding the official’s recognition of natural marriage as defined by this section.”

H4513 would also prohibit state agencies from enforcing any court order that has the effect of violating South Carolina’s laws protecting natural marriage, and would prohibit the state from applying any levy upon the property or arresting “any government official or individual who does not comply with any unlawful court order regarding natural marriage within South Carolina.”

PRACTICAL EFFECT

State non-cooperation would certainly gum up the works, creating, as James Madison foresaw, impediments and obstructions to enforcing the federal demand to recognize gay marriage. It would bar state officials from issuing marriage licenses to gay couples, setting up a confrontation with the federal government like we saw in Kentucky earlier this year.

Practically speaking, H4513 would require the state of South Carolina to defend a state or local official who found him or herself in a situation similar to Rowan County clerk Kim Davis in Kentucky when a federal judge required her to issue marriage licenses to gay couples and threw her in jail when she refused to comply. It would prohibit the use of state facilities, and the assistance of state and local law enforcement in enforcing any federal rulings. These actions would undoubtedly make it difficult for the feds to enforce their will.

In today’s court system, however, the state would almost certainly come out the loser.

Under the original Constitution, marriage was unquestioningly a matter left to the states and the people. In Federalist #45, Madison asserted that all objects that concern “the lives, liberties and property of the people,” would remain outside federal jurisdiction. The 14th Amendment was not intended to alter the fundamental relationship between the states and the federal government, and there exists no evidence it was mean to turn marriage into a federal matter. In fact, Supreme Court intervention into state marriage laws represents a usurpation of power.

Nevertheless, in the American political system today, all courts (most likely including state courts) and federal authorities defer to the Supreme Court. H4513 would certainly be challenged in federal court, and the federal courts will side with the federal government. The effectiveness of the South Carolina Natural Marriage Defense Act would rest entirely on the willingness of the state to maintain resistance to federal authority. It will not win any courtroom battles.

ANOTHER STRATEGY

Legislators in Alabama, Oklahoma and Michigan have considered another way to undermine the federal definition of marriage – simply get the government out of the licensing business all together. For example, last year an Alabama bill passed the state Senate that would have ended state issued marriage licenses, while providing marriage contracts after the fact as an alternative. This move would rendered void the edicts of federal judges that have overturned state laws defining marriage and allowed institutions such as churches to define marriage as they see fit.

This strategy would avoid direct confrontation with the feds and likely prove more effective long-term because it would not be subject to challenge by federal courts.

NEXT STEP

H4513 was referred to the House Committee on the Judiciary where it will be take up when the legislature reconvenes in January.

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