If the Supreme Court overturned same-sex marriage rights, how would SC lawmakers react?

Though the U.S. Supreme Court ruled in 2015 that same-sex couples have the legal right to marry, state lawmakers say there’s little desire in the South Carolina Republican-controlled Legislature to even discuss whether to change the state Constitution and its definition of marriage of being between a man and a woman.

Legislative leaders say the issue of same-sex marriage hasn’t been discussed in the State House because there’s no case so far headed to the U.S. Supreme Court that could overturn the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage across the country.

The issue is back in the spotlight after Gov. Henry McMaster said at Wednesday’s debate against Democratic challenger Joe Cunningham that marriage should be between a man and a woman, and that he would follow state law banning same-sex marriage if the Obergefell is overturned.

The future of the right for same-sex couples to get legally married was put in question in June with the U.S. Supreme Court’s Dobbs decision that overturned the 1973 landmark case that guaranteed the right to an abortion, Roe v. Wade. In a concurring opinion in the Dobbs case, Justice Clarence Thomas wrote the court should reconsider its Obergefell decision.

At the State House, House Majority Leader Davey Hiott, R-Pickens, said the chamber’s Republican Caucus believes marriage is between a man and a woman and would define it that way if Obergefell was overturned.

“I don’t think there’s any doubt about that,” Hiott said. “I don’t think there would be a push to change (the Constitution) because I believe I speak for the caucus when I say that’s what the caucus believes that marriage is between one man and one woman.”

A national Gallup poll conducted in May found 71% of Americans support legal same-sex marriage, the highest percentage since Gallup started asking the question in 1996. The same poll found only 40% of those who attend church weekly supported legal same-sex marriage and 58% opposed it.

In 2021, Gallup found 55% of Republicans supported same-sex marriage, but Hiott disagreed that a stance against same-sex marriage would hurt the party in the long run.

“It hasn’t yet. We’re gaining strength every year and we’re going to pick up more seats this year,” Hiott said. “It doesn’t seem to be something that’s dividing the Republicans in this state yet.”

Meanwhile, Senate Majority Leader Shane Massey said he doesn’t know if the issue will ever come up, or whether Thomas, who called for the court to revisit Obergefell, has four other justices with him on the issue.

“There has been absolutely no conversation about that issue at all,” Massey, R-Edgefield, said.

“At this point it’s not an issue. If there was a case that was making its way up and it looked like the Supreme Court was going to take it up, then that probably generates conversation,” Massey said.

But it’s Thomas’ comments that has some worried the high court would revisit Obergefell.

Because of that fear, the Democrat-controlled U.S. House in July passed the Respect of Marriage Act to codify same-sex and interracial marriage. The bill, which received support from South Carolina’s Republican U.S. Reps. Nancy Mace and Tom Rice, is now sitting in the Senate waiting for a vote.

In South Carolina, Phillip Ford, an openly gay man who lobbies for South Carolina United for Justice and Equality, said he still fears that marriage equality could be taken away.

“I don’t see how a marriage between two loving adults threatens anyone else’s marriage. That’s what I think is so frustrating about this thing, it doesn’t have an impact on anyone else,” Ford said. “I’m not asking to be able to get married in someone’s church, but I think it’s the responsibility of the government to give me the same rights as anyone’s else in the eyes of the government.”

Ford said his group is in talks with lawmakers whether to file legislation to protect same-sex marriage in the state, though, he acknowledges, it could be difficult to get the proposal passed.

“(But) it sends a message that we are fighting for LGTBQ South Carolinians,” Ford said.

Same-sex marriage debate enters gov’s race

On Wednesday, McMaster — who has opposed legalizing same-sex marriage in the past — and Cunningham were asked on the debate stage whether they would support legislation to eliminate the ban on same-sex marriage and allow voters to remove the definition of marriage from the state Constitution.

“I don’t care who you love or you don’t love, or who you live with, or what you want to do. That is as your business,” McMaster said. “But I think marriage is a special institution and that designation ought to be reserved for a man and a woman.”

A day after, McMaster called the discussion over same-sex marriage a “distraction” from other more important issues such as high gas prices and inflation.

“I really think this is a distraction,” McMaster told reporters in Columbia. “I haven’t had a single person other than a reporter ask me anything about this, this entire election cycle. I think it’s a manufactured issue trying to change the subject because the Biden administration has been a failure on all fronts.”

In Myrtle Beach Thursday, Cunningham called McMaster’s views on marriage stuck in the 1950s.

“This is the United States of America, and I don’t care who you love and who you marry, and neither should the government,” Cunningham said. “It’s not their damn business.”

State Rep. Jason Elliott, an openly gay Republican legislator from Greenville, said McMaster’s comments were just the governor’s personal views.

“As public office holders who swore an oath to uphold the South Carolina Constitution and the U.S. Constitution, both of us as lawyers, and the governor as a former attorney general, know there’s a constitutional right to same-sex marriage, whether we agree or disagree with that,” Elliott said. “And that is the law and every South Carolinian and every American has the constitutional right to enter into a marriage of their choosing.”

Elliott said he is supporting McMaster in his reelection bid against Cunningham.

“If a church or synagogue, or a priest or a rabbi does not want to conduct or officiate a same-sex marriage, it’s their constitutional right not do so,” Elliott added.

Ultimately, Elliott said, this discussion is really based on a hypothetical.

“Until and unless the U.S. Supreme Court finds there’s not a constitutional right to marriage equality, then it would be an interesting discussion and (a) law school discussion,” Elliott said. “It’s not something, in my opinion, the General Assembly is going to focus on, or what South Carolinians are focused on.”

Myrtle Beach Sun News Reporter Adam Benson contributed to this article.