Colleen Condon and her partner Nichols Bleckley
Tracie Goodwin and Katie Bradacs
Why SC Equality formed the Litigation Task Force.
The Litigation Task Force was formed in 2014 and originally known as the Post-DOMA Litigation Task Force. It’s mission was to determine what legal steps to take to win marriage equality in South Carolina.
Comprised of some of the best and brightest legal minds in our state, this volunteer Task Force looked at every aspect of the Supreme Court ruling, our state’s laws, and the federal and state court systems – everything it takes to build a case for marriage equality. Advice from this Task Force, whose members participate on a pro bono basis, was based on an extensive review of case history and legal expertise, with emphasis on the specifics of the South Carolina judicial system needed to win any case that comes before us.
On October 8, 2014, Charleston County Probate Judge Irvin Condon, citing Bostic v. Rainey, accepted a marriage license application presented by a female couple, the first same-sex marriage license application accepted in the state. In other parts of the state, some same-sex marriage license applications were blocked by judges. Attorney General Wilson filed Wilson v. Condon, requesting an emergency injunction from South Carolina Supreme Court to halt the issuance of marriage licenses to same-sex couples. On October 9, the state Supreme Court agreed to halt the issuance of licenses pending the resolution of Bradacs. 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, pending the outcome of Bradacs v. Haley.
On October 15, 2014, a lesbian couple, Colleen Condon and Nichols Bleckley, represented by South Carolina Equality filed suit in federal district court seeking the right to marry, citing Bostic. The defendants included the governor, the attorney general, and Judge Irvin G. Condon, the state judge who was enjoined from licensing same-sex marriages a week earlier by the South Carolina Supreme Court. On November 12, U.S. District Judge Richard Gergel ruled for the plaintiffs and stayed his decision until noon on November 20. The Fourth Circuit Court of Appeals denied the state’s request for a stay pending appeal or a temporary stay on November 18. Attorney General Wilson asked Chief Justice John Roberts, as Circuit Justice for the Fourth Circuit, for an emergency stay pending appeal later that day. He made an argument other states in similar cases had not made to the Supreme Court, that the principle of federalism known as the “domestic relations exception”–which restricts the role of federal courts in certain areas reserved to the states–requires clarification. Justice Roberts referred the request to the full court, which denied it with Justices Scalia and Thomas dissenting on November 20.
On December 1, Wilson asked the Fourth Circuit to suspend proceedings in this case pending U.S. Supreme Court action on writs of certiorari pending before it in other marriage cases like DeBoer v. Snyder. He told the court that he would be submitting a request for certiorari before judgment in Condon as well and that the other parties to this case did not object to his request. On December 16, the Fourth Circuit consolidated these cases and put proceedings on hold pending action by the U.S. Supreme Court on cert petitions in DeBoer. On January 14, 2015, Berger and Tillis petitioned the U.S. Supreme Court to review the case, bypassing consideration by the Fourth Circuit Court of Appeals.
Litigation Task Force’s Mission Today
The mission of SC Equality’s Litigation Task Force, following marriage equality, is to protect the civil rights of lesbian, gay, bisexual, and transgender South Carolinians.
As part of SC Equality’s 501(c)3 nonprofit organization, we access situations in South Carolina where LGBT individuals rights have been violated and take legal action to protect those rights. We select cases that will have the greatest impact in protecting and advancing the rights of LGBT people across the Palmetto state.
If you feel your civil rights have been violated, we want to hear from you.
Kevin Hall, P.A.
Womble Bond Dickinson
Kevin Hall, Allen O’Rourke, Representing SC Equality, Help Extend Domestic Violence Protections to More South Carolinians
South Carolina’s domestic violence protections now apply equally to all couples—thanks in part to the work of Womble Bond Dickinson lawyers Kevin Hall and Allen O’Rourke.
In September, Hall and O’Rourke filed a pro bono amicus brief in support of the South Carolina Equality Coalition’s efforts to clarify language in the law so that more South Carolinians are protected, including unmarried same-sex and opposite-sex couples.
The South Carolina Supreme Court considered those laws, focusing on specific language in the statute that applied to unmarried couples who currently or previously lived together. The way the statute was written, extending the protections of domestic violence laws to “a male and female who are cohabiting or formerly cohabited,” meant that opposite-sex unmarried couples would get the protections, but same-sex unmarried couples would not. Thus, the S.C. Supreme Court declared that this particular language of the statute violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. However, the remedy chosen by the Court had the effect of withholding protection for unmarried same-sex and opposite-sex couples, rather than extending the protections to both groups.
In their amicus brief, Hall and O’Rourke argued that this is not what the law was intended to do. They and many others (including the South Carolina Attorney General) wanted to see domestic violence protections extended, not reduced. In November, the Court clarified its original order, holding that these protections apply to all couples, both married and unmarried. Click here to read the Court’s amended opinion.
FEDERAL COURT SAYS SOUTH CAROLINA REFUSAL TO RECOGNIZE SAME-SEX MOMS UNCONSTITUTIONAL
A U.S. District Court ruled Feb. 16 that South Carolina’s refusal to list both parents on the birth certificates of twins born to a married lesbian couple violates the 14th Amendment of the U.S. Constitution. The state did not appeal the decision but instead entered into a consent agreement and will begin issuing accurate birth certificates to the children of married same-sex parents, as reported by Slate.
According to a statement from Lambda Legal, “In May 2016, Lambda Legal and South Carolina Equality, with the help of pro bono co-counsel, filed a motion for summary judgment, noting that the DHEC [South Carolina Department of Health and Environmental Control] policies that refuse to provide new birth certificates to children born to same-sex spouses are arbitrary, harmful, and violate the Equal Protection and Due Process clauses of the Fourteenth Amendment. [On Feb. 16] the Court ruled in favor of the Carsons and all other similar couples in South Carolina who need accurate birth certificates for their children.”
Casy and Jacqueline Carson are high school sweethearts from Greenville, SC, who have been together since 2011. In 2014 they married in Washington, DC—at a time when same-sex marriage was illegal in their home state. In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that states must provide marriage rights to same-sex couples “on the same terms and conditions as opposite-sex couples.”
But when the Carsons became the parents of twins, despite indicating on hospital forms that they are legally married, the birth certificate issued for their children listed only Jacqueline, the birth mother, as parent. The space for a second parent was marked “No Father Listed.”
The South Carolina DHEC’s position was that it would only issue a birth certificate listing same-sex spouses as parents if the couples obtained an adoption or a court order—a burden not placed on heterosexual married couples. In the case of a married heterosexual couple, South Carolina, on the presumption that a child born during the marriage is the child of both husband and wife, lists both spouses on the child’s birth certificate—even when it is known that the child is not biologically related to the husband. The husband is not required to adopt the child or obtain an order of parentage.
As the Slate report notes, birth certificates are legal documents identifying the family into which a child is born—not provenance of genetic relationships. Casy Carson previously served in the National Guard, but was forced to leave the service due to a serious injury. The couple, unable to bear the cost of adoption proceedings, feared their children would be unable to access Casy’s veteran’s benefits or Social Security, or that Casy would not be allowed to access medical care for the children in an emergency.
With last month’s ruling, married same-sex couples in South Carolina will now be able to obtain accurate birth certificates for their children, without taking the additional step of a second-parent adoption. In the wake of the Obergefell decision, a few other states, most notably Arkansas, continue to interpret the law differently when it comes to married same-sex couples. The victory for equality in South Carolina is one more step toward the day when all families will receive fair and equal treatment according to their constitutional rights.
Nekki Shutt, P.A.
Law Partner at Burnette, Shutt and McDaniel
Meet Nekki Shutt, a true champion for LGBT equality in South Carolina
A certified specialist in South Carolina employment law, Nekki built on her experience working in a corporate human resources department to create a legal practice focusing on civil litigation. Her emphasis is on employee benefits under ERISA.
The Employee Retirement Income Security Act is the federal law governing all benefits employees receive through their employers pension and health plans. Private companies aren’t required to provide those benefits, but if they do, they must meet certain standards. This includes having a written plan and maintaining funding levels. Nekki’s clients include employees who believe the company has wrongfully denied them benefits. She works with them from the time of the initial claim, on through internal appeals and into the court system if necessary.
Her work in employee benefits also includes cases involving federal COBRA and South Carolina health insurance continuation laws.
A co-founder of Burnette Shutt & McDaniel, Nekki’s practice includes a range of other employment law issues as well, such as wage disputes, discrimination and wrongful termination.
Nekki earned her Juris Doctor at the University of South Carolina School of Law after working for several years for a publicly traded insurance company. She rose through the human resources department to the position of corporate recruiter, responsible for hiring employees for more than 225 positions a year.
In addition to her legal career, Nekki has long been committed to the cause of social justice. In 2002 she was a founder of SC Equality, the state’s LGBTQ civil rights organization. She served on its board and related boards for 15 years. Her legal work at times has overlapped her commitment to the cause.
Nekki and Burnette Shutt & McDaniel co-founder Malissa Burnette led the legal team that paved the way for same-sex marriage in South Carolina nine months before the U.S. Supreme Court ruled all states must recognize same-sex marriage.
Nekki also is deeply committed to helping the next generation of lawyers. She’s presented, moderated, planned and created a number of Continuing Legal Education programs for the SC Bar. She’s developed innovative programs, such as a CLE on Modern Family Law that addresses issues related to lesbian, bisexual, gay and transgender clients. Another CLE she co-created, “Against The Wind: A Legal History of Civil Rights in South Carolina,” received a national Award of Professional Excellence from the Association for Continuing Legal Education.