South Carolina isn’t going to let its last states’ rights hurrah go down without a fight.
In sleepy downtown Columbia, as statues of segregationist Strom Thurmond and violent Red Shirter Ben Tillman look on, a showdown is blossoming between the Palmetto State’s anti-LGBT status quo and the federal government’s continued march toward full equality for LGBT couples.
Republican lawmakers in the state are intent on stopping marriage equality in its tracks. They’re digging in their heels with four separate legislative attempts to circumvent federal authority on LGBT equality.
South Carolina’s not the only one. Other states are proposing measures that would allow discrimination against LGBT people and couples. Oklahoma has some of the most outrageous proposals, including a now-withdrawn bill allowing businesses to discriminate and another limiting marriage only to Christians and Jews.
South Carolina’s laws aren’t as extreme, and so they’re more likely to pass, despite, one Furman Unviersity professor says, the current proposals’ similarity to attempts to circumvent desegregation and other civil rights measures in the 1950s and 1960s.
“It seems to me if we know history, we wouldn’t be wasting time with bills like this,” Professor Sean O’Rourke tells Greenville news station WNCT.
“Once the Supreme Court settles the issue, I don’t think that will pass muster as a constitutional provision even if it were passed by the South Carolina legislature. Because essentially what you’d be doing is instilling and instituting legal discrimination,” O’Rourke added.
But that’s entirely the point — the lawmakers, all of them from South Carolina’s Upstate, don’t care if their proposals are discriminatory or unconstitutional. Their goal is to fight federal authority and deny a portion of their citizens the rights guaranteed them under the Constitution’s Equal Protection Clause.
South Carolina has failed each and every time they’ve chosen this ill-fated battle. This time will be no different. They’ll lose and the rule of law — the ultimate authority of the Constitution — will reign victorious.
“If the federal courts end up finally concluding – likely as a result of a Supreme Court decision – that there is a federal constitutional right to have one’s same-sex marriage recognized by states, then these laws would obviously be unconstitutional,” Eugene Volokh, a University of California-Los Angeles School of Law professor, told U.S. News & World Report.
It’s a hard lesson that might finally, once and for all, be learned by an Old South regime still grasping at every last straw of their feigned “way of life.”
But they’ll keep fighting and, in a Republican-dominated Statehouse, at least one of the four bills is likely to pass.
So, how is it that South Carolina plans its yet-another-in-a-string-of-failed last stands?
Here’s the rundown…
House Bill 3022
This bill, and one other, are the two most insidious proposals. Sponsored by Reps. Mike Burns (Greenville), Garry Smith (Greenville) and Bill Chumly (Spartanburg), this proposal would prohibit the use of tax dollars in paying for salaries of benefits of government employees who grant a marriage license to a same-gender couple. Effectively, it tells government employees to choose between either their job or following a federal court order on a federal constitutional matter.
The bill reads, in part: “No state or local governmental employee officially shall recognize, grant, or enforce a same-sex marriage license. If an employee violates this subsection, the employee must not continue to receive a salary, pension, or other employee benefit at the expense of the taxpayers of this State.”
And, it instructs state courts to (a) immediately dismiss legal actions against this specific proposal itself, (b) order suing plaintiffs to pay court costs and attorney’s fees for any defendant, (c) specifically gives the boot to federal oversight and (d) threatens to fire any state judge who violates the proposal:
A court of this State shall dismiss a legal action challenging a provision of this section and shall award costs and attorney’s fees to a person or entity named as a defendant in the legal action. … No person employed by this State or a local governmental entity who violates or interferes with the implementation of this section may continue to receive a salary, pension, or other employee benefit. … The State is not subject to suit in law or equity pursuant to the eleventh amendment of the United States Constitution for complying with the provisions of this section, regardless of a contrary federal court ruling. … If a judicial officer violates this section, that judicial officer is disqualified from office pursuant to Section 19, Article V of the South Carolina Constitution, 1895.
The bill is nearly identical to proposals filed in Texas and Oklahoma, but South Carolina seems to have led the way here. This Palmetto State bill was pre-filed in mid-December, before other proposals came into being. Who wrote the model bill? I haven’t been able to find an answer, but the similarities and their spread speak to some sort of coordination.
House Bill 3150
Along with the first bill, HB 3022, this next proposal, also sponsored by Smith, has the capability of opening widespread discrimination against LGBT people.
Smith’s bill would allow any business, organization or individual to openly discriminate against LGBT couples. At least that’s how it’s written:
No agency, official, or employee of this State or any political subdivision thereof shall enforce or impose a civil, administrative, or criminal sanction or penalty which penalizes or otherwise punishes in any manner an individual or entity for its refusal to provide goods or services in connection with a marriage of two individuals of like gender.
The legislation doesn’t go nearly as far as one proposed (and later withdrawn) by Oklahoma state Rep. Sally Kern, which specifically would have allowed discrimination “related to any lesbian, gay, bisexual or transgender person, group or association.”
Still, once this “license to discriminate” is entered into the law, it will open up doors of possible ill-effects against LGBT people, whether they’re seeking a marriage or not.
For example, would it be possible to discriminate against an LGBT non-profit which has previously advocated for equality in marriage? What about an individual person who has similarly spoken out in favor of marriage equality? What if a same-gender couple happens to visit a restaurant and is told to go away, because the owner refuses to serve the couple? Each of these scenarios are possible, and perpetrators of the discrimination could point to this law to justify their actions.
Senate Bill 116
Sponsored by Spartanburg Sen. Lee Bright, this bill is the kind we’ve come to expect from states biting against the legalization of same-gender marriage. Essentially, it allows probate judges, clerks of court and any of their employees to opt out of issuing marriage licenses to same-gender couples — all based on a “sincerely held religious belief.”
A similar version has been introduced in North Carolina, but it seems leaders in the Old North State are willing to at least offer some perception of fairness. The Palmetto State’s proposal simply allows government employees to pick and choose which citizens they will or will not serve. North Carolina’s version requires an objecting magistrate or register of deeds to serve all or serve none; if they object to one citizen’s marriage, they can’t perform or license any other citizen’s marriage.
Senate Bill 31
The last bill, a joint resolution by Laurens Sen. Danny Verden and Berkeley Sen. Larry Grooms, is, on its face, laughable.
The resolution calls for a convention of the states to ratify a new constitutional amendment defining marriage as between a man and woman. Really, there’s no chance of it having any real effect on the nation. No need to worry. There won’t ever be such a convention.
The resolution trots out some of the usual, tired arguments against marriage equality and accusing LGBT people of going “to court to force their contrary view upon the majority of Americans.”
It’s merely a symbolic resolution, but one that, nonetheless, proves South Carolina’s Republicans are intent on sticking it to LGBT folks.