Toobin covers the recent surge in court victories. He calls Monday’s ruling in Ohio possibly “the most important of all”:
James Obergefell and John Arthur, who lived together in Cincinnati, married in Maryland at a time when Arthur was gravely ill. In anticipation of Arthur’s death, the couple petitioned the state of Ohio for Arthur to be listed as “married” on his Ohio death certificate, and to record Obergefell as the “surviving spouse.” Ohio, which does not allow same-sex marriages, refused, but federal judge Timothy S. Black ruled against the state and in favor of the couple. The judge said it was “not a complicated case.” Throughout Ohio’s history, Ohio has treated marriages solemnized out of state as valid in Ohio. “How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriage as ones it will not recognize?” Black asked in his opinion. “The short answer is Ohio cannot.”
The Ohio decision is crucial because people in the United States tend to move from state to state. Like Obergefell and Arthur, people in same-sex marriages may well end up living in states where such marriages are illegal. Once they are in those states, these couples will become enmeshed in the legal system in the way that heterosexual married couples do. They will have children; they may divorce and dispute child custody; they will seek to file joint tax returns; they will visit each other in the hospital; they will want to be with each other when they die. Their lives will intersect with the legal system in scores of ways at those junctures. In light of this, many judges will face dilemmas similar to the one Black just resolved.
Kitchen v. Herbert, Utah
Odds of reaching SCOTUS: Fairly good, but far from certain. Some observers have taken it as a given that the Utah case is destined for the high court: It’s a head-on challenge in a deeply red state, the kind of direct conflict that the Prop 8 case resoundingly was not. But it’s this straightforward factor that makes this case so risky. The court can’t wriggle out of it Perry-style; if the justices take it, they can’t get rid of it without issuing the final word on state-level bans. Given these stakes, the justices might prefer to kick the issue down the road—they’re pretty good at that—and let the lower courts figure this one out.
What happens if SCOTUS takes the case: The justices will essentially be forced to either legalize gay marriage nationwide or uphold all state-level bans. You can read the Windsor tea leaves however you want, but my money is on a broad ruling bringing marriage equality to the entire United States.
What happens if it doesn’t: That depends on the 10th Circuit’s ruling, but by denying a stay of the federal judge’s decision, the circuit judges may have already shown their hand. A court will generally stay a ruling if there’s a reasonable likelihood of reversal; here, the court has tacitly suggested, there is not. If the circuit court does uphold Judge Robert Shelby’s Scalia-baiting ruling, expect gay couples in Colorado, Oklahoma, and Wyoming—non-gay-marriage states within the 10th Circuit—to bring suit (and win).