[F]our other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages. Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8” ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans. If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.
The reaction in those four circuits could depend upon how they interpret what the Supreme Court did on Monday. If the Court is not likely to uphold any state ban, either on same-sex marriage in the first place or recognition of existing such marriage, lower courts may see good reason to fall in line. The Court’s actions, however, do not set any precedent, so lower courts are technically free to go ahead and decide as they otherwise would. If they interpret the denials of review as providing no guidance whatsoever, then they would feel free to proceed without reading anything into what the Court has in mind. It is very hard, however, to interpret the Justices’ actions as having no meaning.
In Garrett Epps’ opinion, it’s now more difficult for an appeals court to reject marriage equality:
As long as cert. was pending, the lower-court opinions were in limbo. Meanwhile the issue is pending in the Fifth, Sixth, Ninth, and 11th Circuits. Any panel in one of those circuits must now confront a huge weight of federal authority affirming same-sex marriage. True, other circuits’ decisions are not “binding”; true, the Supreme Court did not give any hint of its position. But that’s still a lot of contrary authority to move against. Any judge writing an opinion that bars same-sex marriage must explain why he or she is ignoring all the previous decisions.
That still could happen. The press has speculated that the Sixth Circuit may soon issue an opinion allowing state bans to stand. The Fifth and 11th are among the most conservative of the circuits. If one of them breaks step, then the Court will have to take that case. And it would seem to most observers that it would be granting to reverse.
Epps doesn’t believe that SCOTUS “will allow thousands of couples nationwide to celebrate marriages, change names, jointly adopt children, become legally one family—and then, in an opinion later in the term, baldly announce that their marriages are in jeopardy or even void”:
If the justices were later to decide against same-sex marriages, a number of the states where, in a few days, it will be legal, would be back at the Court asking for reconsideration. That would be, as Lyle Deniston of SCOTUSblog wisely wrote,“an invitation to legal chaos.” Beyond that, it would be an act of cruelty that I hope is beyond any five of the nine human beings who sit on this Court.
Rick Hansen is on the same page:
The fact that the Supreme Court, without saying a peep, is letting court-ordered same sex marriages go forward in Utah is a huge deal. Now you may think that this could well be reversed once there is a circuit split, perhaps in a case from the 5th or 6th Circuit. But remember, there will now be all of these children from legal same sex marriages performed until the Supreme Court could decide to take a case from another circuit. The idea that Justice Kennedy would let that happen, knowing there could well be a reversal down the line seems unlikely.
Digby nods along with that:
There are already a whole lot of gay parents (always have been, they’re just now able to parent together) and a whole lot of laws that are necessarily being created to deal with that new circumstance. Aside from the obvious moral obstacle of breaking up happy families, there will be the complications of untangling many legal issues.
(Photo: Suzanne Marelius and Kelli Frame hold hands as they wait in line at the Salt Lake County Recorders Office to get a marriage license on October 6, 2014. Marelius and Frame are the first same sex couple in Utah to get a marriage license after the U.S. Supreme Court declined challenges to gay marriage making it now legal in Utah. By George Frey/Getty Images)