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Federal judge rules SC gay marriage ban unconstitutional (+video)

The judge ruled that his order would not take effect right away, giving the state a chance to appeal.

A federal judge on Wednesday struck down South Carolina's same-sex marriage ban as unconstitutional, opening the door to such marriages but also giving the state a week to appeal.

US District Judge Richard Gergel, ruling in the case of a same-sex couple from Charleston who sued to be married, found South Carolina's state constitutional ban "invalid as a matter of law."

He also blocked any state official from interfering with the plaintiffs' rights to be married. But Gergel wrote that order would not take effect until noon Nov. 20, allowing Attorney General Alan Wilson a chance to appeal to the 4th US Circuit Court of Appeals in Richmond, Virginia. A spokesman for Wilson said the attorney general is reviewing the order.

However, the 4th Circuit already has struck down Virginia's gay marriage ban, a ruling that applied to other states in the circuit. The US Supreme Court refused to hear an appeal of that case last month. South Carolina is the only state in the circuit that has refused to allow such marriages.

Gergel wrote that the 4th Circuit decision is the ruling precedent in South Carolina.

The appeals court, he wrote, has "recognized a fundamental right of same-sex couples to marry and power of the federal courts to address and vindicate that right."

He added that any attempt by Wilson to overrule the decision in the Virginia case belongs in the 4th Circuit or the US Supreme Court.

The judge wrote a week's delay will give Wilson a chance to appeal or for the US Supreme Court to consider an appeal by gay marriage supporters of a decision by the 6th US Court of Appeals in Cincinnati upholding gay marriage bans in four states.

The South Carolina case was brought by Colleen Condon and Nichols Bleckley, who applied for a same-sex marriage license in Charleston County last month.

But before it could be issued, the state Supreme Court blocked issuing licenses until a federal court in Columbia ruled in another gay marriage challenge. In that case, a couple wants the state to recognize their same-sex marriage performed in Washington, D.C.

Condon and Bleckley sued to be married in Charleston after the state Supreme Court action.

Meanwhile, the nation's highest court was considering Wednesday whether to block Kansas from enforcing is ban on gay marriage while federal courts review a legal challenge.

The American Civil Liberties Union filed a lawsuit last month on behalf of two lesbian couples denied marriage licenses. A federal judge ordered the state to stop enforcing its ban as of 5 p.m. Tuesday – when county courthouses were closed for Veterans Day.

Kansas Attorney General Derek Schmidt appealed to US Supreme Court Justice Sonia Sotomayor. She put the federal judge's order on hold and gave the ACLU a chance to respond to the state's request to maintain the ban for now.

 
 
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