THE STATE OF SOUTH CAROLINA In The Supreme Court

Cathy J. Swicegood, Petitioner,

v.

Polly A. Thompson, Respondent.

State Ex Rel Alan Wilson, A ttorney General, Intervenor.

Appellate Case No. 2020-001351

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Greenville County

The Honorable W. Marsh Robe rtson, Family Court Judge

Opinion No. 28067 Submitted October 27, 2021 – Filed November 10, 2021

VACATED IN PART AND AFFIRMED IN RESULT

John G. Reckenbeil, of Law Office of John G. Reckenbeil, L.L.C., of Mauldi n; and J. Falkner Wilkes, of Greenville, for Petitioner.

Margaret A. Chamberlain, of Chamberlain Law Firm, LLC, of Greenville; and Me lissa Hope Moore, of Fountain Inn, for Respondent.

PER CURIAM: Petitioner seeks a writ of certiora ri to review the decision of the court of appeals in Swicegood v. Thompson , 431 S.C. 130, 847 S.E.2d 104 (Ct.App. 2020). We grant the petition, dispense with further briefing, vacate the decision in part, and affirm the decision in result.

The court of appeals based its decision th at the parties did not establish a common law marriage on its findings that: (1) sec tion 20-1-15 of the South Carolina Code (2014), which prohibited same-sex marriag e, operated as an impediment to the formation of a common law marriage betw een same sex couples ; and (2) Petitioner and Respondent lacked the requisite intent and mutual agreement to enter a legally binding common law marriage as a matter of law.

In Obergefell v. Hodges , 576 U.S. 644, 675–76 (2015), the Supreme Court held "same sex couples may exercise the fundament al right to marry," and all state laws challenged in that case were "invalid to th e extent they exclude same sex couples from civil marriage on the same terms a nd conditions as opposite sex couples." Although recognizing that Obergefell must be applied retroactively, the court of appeals held section 20-1-15 constituted "a pre-existing, separate, independent rule of state law, having nothing to do with retroactivity," which formed an "independent legal basis" for the findi ng that Petitioner and Respondent did not establish a common law marriage. See Reynoldsville Casket Co. v. Hyde , 514 U.S. 749, 756 (1995).

Our state's restriction on same sex ma rriage in section 20-1-15 was rendered void

ab initio by Obergefell and, therefore, must be trea ted as though it never existed. See Norton v. Shelby Cnty. , 118 U.S. 425, 442 (1886) ("An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; . . . it is, in legal contemplation, as inopera tive as though it had never been passed."); Bergstrom v. Palmetto Health All. , 358 S.C. 388, 399, 596 S.E.2d 42, 47 (2004) ("Generally, 'when a statute is adjudged to be unconstitutional, it is as if it had never been.'" (quoting Atkinson v. S. Express Co. , 94 S.C. 444, 453, 78 S.E. 516, 519 (1913))). Accordingly, the statute ca nnot serve as an impediment to the recognition of a same se x marriage predating Obergefell. Because the court of appeals erred in holding the statute cons tituted an impediment , we vacate that portion of the court of appeals opinion, but affirm the ultimate result reached by the court of appeals that no comm on law marriage was established.

VACATED IN PART AND AFFIRMED IN RESULT.

BEATTY, C.J., KITTREDGE, HEAR N, FEW and JAMES, JJ., concur.