Now What Happens with Same-Sex Marriage?

Every once in a while the Supreme Court does something that turns experts’ predictions completely upside down. It actually happened twice during the 2012 Obamacare case (first, when Justice Kennedy clearly indicated his intent to find Obamacare unconstitutional during oral arguments; second, when the opinion was released and Chief Justice Roberts deemed Obamacare constitutional as a tax).

Monday, October 6th marked one of those moments. Nearly all of the experts thought that SCOTUS would keep all of the pending same-sex marriage cases on hold long enough for the Court to accept a case and issue a final decision on the matter. Instead, the Court denied all of the petitions before it, allowing lower court decisions that recognized a constitutional right to SSM to take effect, thereby increasing the number of states where same-sex marriages are permitted from 19 to 30 (and 35 quickly thereafter, as a result of the 9th Circuit’s decision the following day).

The big question is what happens next? As a practical matter, it is becoming increasingly likely that SSM might become legal in all 50 states without SCOTUS taking a case on the issue.

I’m going to move beyond the nitty-gritty details of what’s happening state-by-state right now. These details are quite entertaining, if you enjoy that sort of thing (for example, as of Wednesday afternoon, nobody really knew whether SSM was legal in Nevada or not), but let’s stay “big picture.”

There are currently 35 states where SSM is effectively legal. The states not on that list are: Michigan, Ohio, Kentucky, Tennessee, Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, North Dakota, South Dakota, Nebraska, Missouri and Arkansas. That’s it. Those are essentially the only states still banning SSM (again, I know there are crazy things happening in Idaho and other states right now, but let’s focus on the larger situation).

There are basically two courses that SSM can take from this point forward. Course 1: All of the Circuit Courts of Appeals could rule in favor of SSM without SCOTUS ever accepting an appeal. Course 2: One of the Circuit Courts of Appeals could uphold a state’s ban on SSM, causing SCOTUS to take an appeal and ultimately decide the issue itself. Those are really the only two likely options at this point because if SCOTUS wanted to decide the issue without there being disagreement between the circuit courts, it probably would have taken one of the cases it denied on Monday. If Course 1 happens, there would be no real need for a SCOTUS opinion. SSM could become the law of the land in all 50 states as a result of all of the appellate courts ruling in favor of it.

Believe it or not, we’re actually getting reasonably close to Course 1 happening. The 50 states are divided into 11 Circuit Courts of Appeals. Three of the eleven (coincidentally, the 1st, 2nd and 3rd Circuits) consist entirely of states where SSM is legally recognized based on state law, so the 1st, 2nd and 3rd Circuits don’t need to decide the issue. Four more (4th, 7th, 9th and 10th) of the eleven have already ruled in favor of SSM.

That leaves only the 5th Circuit (Texas, Louisiana and Mississippi), the 6th Circuit (Michigan, Ohio, Kentucky and Tennessee), the 8th Circuit (North Dakota, South Dakota, Nebraska, Missouri and Arkansas) and the 11th Circuit (Alabama, Georgia and Florida).1

The thing is, the more cases that are decided in favor of SSM, the more difficult it will be for any court to decide against it. Judges don’t usually like being wrong, and we’re getting to the point where a court that upholds a ban on SSM might be the only appellate court to do that. And such a decision would run a significant risk of being promptly overruled by the Supreme Court. That situation would make the judges voting to uphold the ban at least appear quite wrong. Even conservative judges would hesitate to put themselves in that position.

The next court to issue a major decision will probably be the 6th Circuit, which heard oral arguments in a SSM case about two months ago. That decision could come any day. The consequences of the 6th Circuit’s decision are huge, as that decision will probably dictate whether the courts take Course 1 or Course 2. A pro-SSM decision would bump the number of states up to 39. And such a decision would create a 5-0 consensus among federal appellate courts that there is a constitutional right to SSM, with only three appellate courts left, making Course 1 reasonably likely.

On the other hand, a decision by the 6th Circuit to uphold state SSM bans would trigger Course 2, virtually guaranteeing SCOTUS review, possibly still by June 2015.

So, while all of the action seems to be in states like Idaho and Nevada right now, the real show is in Cincinnati, the seat of the 6th Circuit.

Footnotes

1. These lists only include the states in each circuit that ban SSM. Iowa, for example, is part of the 8th Circuit, but it already allows SSM, so I didn’t include it.

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