Same-sex marriage became legal in South Carolina seven months before the U.S. Supreme Court issued its landmark ruling in Obergefell v. Hodges last year, which legalized same-sex marriage nationwide.
But even with that head start, South Carolina has left many legal questions facing same-sex married couples unanswered. Without clear guidance, family law attorneys in the state have struggled to advise clients on matters that go to the heart of their personal lives.
Craven
Many same-sex couples continue to face added scrutiny when they try to adopt a child, despite adoption rules being the same for all South Carolina residents. Non-biological parents in same-sex marriages also face challenges when they attempt to have their name added to a child’s birth certificate. Additionally, it’s often difficult for someone in a same-sex relationship to obtain a protective order against someone they once dated because the state’s domestic violence laws were written with opposite-sex couples in mind.
Rather than providing clarity on these uncertain legal questions, some lawmakers in the state Legislature have signaled that they might actually add to the confusion. Two bills introduced during the most recent legislative session took aim at the lesbian, gay, bisexual and transgender community. While both bills failed to gain traction this year, advocates fear they might mark the opening salvo of a coming battle over LGBT rights in South Carolina.
One only has to look at South Carolina’s neighbor to the north to see how that battle might shape up. North Carolina has been at the center of a national debate over LGBT rights following its adoption of a so-called bathroom bill, which requires transgender people to use public bathrooms that correspond with their birth gender. The new law, HB2, has resulted in business leaders canceling expansion projects or deciding to pull out of the state altogether. North Carolina has also seen a series of entertainers boycott the state because of HB2, including global superstars like Bruce Springsteen and Ringo Starr.
Gov. Nikki Haley has said South Carolina does not need a bathroom bill. But several lawmakers told Lawyers Weekly that they intend to push for one over the governor’s objections.
Condon
Colleen Condon, a solo practitioner in Charleston whose practice focuses on LGBT family law, said that even with the unsettled state of South Carolina law regarding LGBT issues, she’s been able to secure adoptions and divorces for clients in same-sex marriages. But she said she hopes the Legislature and the state’s courts can resolve some of the remaining legal questions facing the LGBT community.
Condon and her now-wife Nichols Bleckley were the named plaintiffs in Condon v. Haley, the 2014 South Carolina Supreme Court case that legalized same-sex marriage in the state.
“The Obergefell ruling from the U.S. Supreme Court added certainty to the same-sex marriage issue in South Carolina. We knew the law wasn’t going to change,” Condon said. “But there are a range of issues that weren’t addressed in the decision that we’re still struggling to deal with.”
Till divorce do us part
One thing Obergefell did do for same-sex married couples in South Carolina was clear the way for them to file for divorce. Prior to the ruling, South Carolina would not allow same-sex couples who married outside of the state to seek divorce.
“They were caught in a weird limbo,” Condon said. “They could try to go back to the state where they got married, but many states have residency requirements for divorces. There were a lot of people who wanted to get a divorce but simply couldn’t.”
Condon said that within a week of the Obergefell ruling, she had clients asking her to initiate divorce proceedings.
“People would say, ‘How could they decide to get a divorce within a week?’ But that wasn’t the case. Many had been waiting years to get a divorce,” Condon said.
James Stone Craven, chair of the South Carolina practice of LGBT Family Law in Greenville, said the majority of cases he’s handling these days are divorces.
“The judges appear to be handling it pretty well,” Craven said. “They’re treating it as a normal family law proceeding.”
That said, there are still some unanswered questions when it comes to same-sex divorce. Because couples were not able to legally marry in South Carolina until 2014, many couples spent years, even decades, living together and sharing assets. That raises the question of how to divide those assets in a divorce.
Typically, marital property includes all real and personal property acquired after the date a couple married. But if a couple was legally barred from marrying, how should courts approach property that was accumulated over the course of a same-sex relationship prior to the marriage date?
Condon said she has not yet heard of a court case raising that issue. But it’s possible it could come up in the future, she said.
“You occasionally see agreements where a couple uses a date prior to the marriage date for asset division,” Condon said. “But I don’t know of an instance where a judge imposed a date prior to the marriage date. That might be something that is challenged in the future.”
Adoption headaches
While same-sex divorces appear to be going smoothly in South Carolina, as smoothly as is possible with divorce proceedings, adoption continues to generate problems for same-sex married couples. Many couples have found it difficult to get the name of both parents listed on a child’s birth certificate.
For opposite-sex couples, it’s a simple process. If a couple is married at the time the child is born, the husband is automatically listed on the birth certificate. That’s true even in cases where a couple used a sperm donor or when the wife had an affair.
Maril
But for same-sex married couples, it’s much more complicated. The S.C. Department of Health and Environmental Control has so far not allowed both spouses in a same-sex marriage to be listed on a child’s birth certificate at the time of birth.
For example, in the case of a lesbian married couple, only the woman who gives birth to the child is listed on the birth certificate—even if the child was born of an egg provided by her wife.
In order to have both parents listed on the child’s birth certificate, same-sex married couples have to apply to have the certificate amended based on a second-parent adoption. The alternative is to convince a family court judge to issue a finding that both spouses are legal parents and order DHEC to make the change.
Last year, a bill to require DHEC to make it easier for both same-sex parents to be listed on a birth certificate was introduced in the state House of Representatives. But the bill hasn’t moved beyond the House Judiciary Committee.
Condon’s firm is representing a lesbian married couple in a lawsuit seeking to force DHEC to give same-sex couples the same “marital presumption” with regard to parentage that opposite-sex couples have. Condon said she is waiting for the state to file a response to her motion for summary judgment in Carson v. Heigel. She said she expects the court to rule on her motion by September.
Domestic violence uncertainty
Meanwhile, the South Carolina Supreme Court is grappling with yet another issue facing same-sex couples.
In August, a Richland County court denied a woman’s request for an order of protection against her ex-fiancée, who is also a woman. The plaintiff alleged her ex hit and choked her during an argument. But the trial judge determined the state’s domestic violence law does not apply to same-sex couples who are not married.
The law defines victims of domestic violence as a “household member” who is a spouse, a former spouse, persons who have a child in common or “a male and female who are cohabiting or formerly cohabited.”
The woman, who is not named in court documents, appealed the judge’s decision to the Supreme Court, arguing the state’s domestic violence law violates the 14th Amendment’s equal protection clause.
During oral arguments in March, Chief Justice Costa Pleicones said he believed the law, as written, is unconstitutional. But the court has appeared to struggle with how to make the law workable.
Attorney General Alan Wilson is defending the law on behalf of the state. The Supreme Court has not yet issued an opinion in the case.
Fights to come?
As lawyers who represent LGBT clients push for more clarity on family law issues in the wake of the Obergefell decision, they’re also fending off legislation that could create new problems for their clients.
Late last year, two bills were introduced in the Legislature that were directed at the LGBT community.
The first bill, HB4513, would have invalidated any court decisions that run contrary to a definition of marriage that limits unions to those between one man and one woman. The bill would have essentially nullified the U.S. Supreme Court’s ruling in Obergefell.
“The United States Supreme Court is not infallible and has issued lawless decisions which are repulsive to the Constitution and natural law, including Buck v. Bell, Korematsu v. United States, Roe v. Wade, and, most recently, Obergefell v. Hodges,” the bill says, citing cases that permitted forced sterilization, Japanese internment, abortion and same-sex marriage, respectively.
Rep. Mike Burns, R-Greenville, who co-authored HB4513, said the bill was designed to push back against a ruling deciding an issue he believes should have been left up to the states.
Notwithstanding the Supremacy Clause of the U.S. Constitution, Burns said he believes Obergefell violates the 14th Amendment rights of those who oppose same-sex marriage. HB4513 failed to get a hearing in the House during the most recent legislative session. But Burns said he intends to introduce similar legislation next year.
He said the new bill will cite his 14th Amendment concerns, as well as provide greater protections for those who oppose same-sex marriage on religious grounds.
“If someone doesn’t want to perform a ceremony or bake a cake for a gay couple, something that has gotten a great deal of coverage lately, they shouldn’t have to,” Burns said.
A separate bill introduced this year by state Sen. Lee Bright, R-Spartanburg, would have imposed restrictions on public restroom use that mirror those adopted in North Carolina under the now-infamous HB2. The South Carolina bill, SB1203, would bar transgender individuals from using public restrooms that correspond with their gender identity and would require them to use those that match their gender at birth. That bill also failed to go anywhere this year.
Bright is up for re-election and faces three GOP primary challengers. He did not respond to requests for comment.
Burns said he supports the objective of SB1203 because “it’s not right for a small group of people to violate the religious rights of the majority.”
Safety dispute
Supporters of bathroom bills have also made the argument that they are necessary to protect women and children from potential attacks if they are forced to share a restroom or locker room with someone of the opposite biological sex.
But Robin Maril, senior legislative counsel for the Human Rights Campaign in Washington, D.C., said those fears are “not based in reality.”
She said there is no evidence that allowing transgender people to use the bathroom of their choice makes it easier for sexual predators to prey on women and children. At the same time, Maril said, there are data showing a rise in the number of attacks on transgender people.
The HRC recently released a report which found that at least 21 transgender people were killed across the country in 2015—more than any other year advocates have tracked.
“So you have to balance that fake fear with the very real fear of violence against trans individuals,” Maril said.
If South Carolina were to adopt a bathroom bill similar to the one enacted in North Carolina, it could create problems for some local governments in the state. The cities of Charleston, North Charleston and Folly Beach, as well as the Charleston County government, have all adopted ordinances or resolutions that bar discrimination based on sexual orientation. Those measures apply to housing and public accommodations, as well as restaurants, hotels and rental properties.
Additionally, the Berkeley County School Board recently upheld the district’s earlier decision to allow transgender students to use the restroom for the sex with which they identify. In May, two Republican senators helped to block a bill that would have forced Berkeley County students to use bathrooms, locker rooms and showers that correspond with their biological sex.
Maril said her organization is working to convince South Carolina lawmakers to adopt statewide protections for the LGBT community. The state does not currently have laws protecting LGBT people from housing or employment discrimination.
“The Obergefell ruling was a big win,” Maril said. “But the fight for full, lived equality for LGBT people is far from over.”
Follow Jeff Jeffrey on Twitter at @SCLWJeffrey.