Lyle Denniston breaks down the ruling:
Striking down bans on same-sex marriage in two states, and setting the stage for the same outcome in three others, a federal appeals court in San Francisco on Tuesday nullified laws in Idaho and Nevada. The ruling by the U.S. Court of Appeals for the Ninth Circuit is expected to control pending challenges to bans in Alaska, Arizona, and Montana.
With developments since Monday’s refusal by the Supreme Court to get involved in the constitutional controversy at this point, it now seems clear that the same-sex marriage campaign has succeeded — or very soon will — in thirty-five of the fifty states, plus Washington, D.C.
Ari Ezra Waldman wonders “whether we will need the Supreme Court at all.” He lists “several reasons why all applicable circuits may agree and create, piece by piece, a nationwide right to marry”:
First, three circuits are already in the fold through a combination of litigation, legislative vote, and plebiscites. Marriage equality exists in all jurisdictions covered by the First, Second, and Third Circuits.
Second, we have won at the appellate court level in the Fourth, Seventh, and Tenth Circuits. And, at the Ninth Circuit, which is the largest circuit in the country, the appellate court has affirmed that any discrimination against gays merits heightened scrutiny. That means that any marriage equality ban in the Ninth Circuit will be nearly impossible to maintain. That’s seven circuits out of eleven, leaving the Fifth, Sixth, Eighth, and Eleventh.
One reason he doubts those courts will rule against equality:
[J]udges who have yet to hear marriage equality appeals do not exist in a vacuum. They see a rising tide of proequality rulings below them — at the district court level — and above them — at the Supreme Court (Windsor). They also see state court rulings and growing majorities of Americans supporting marriage equality. They also have the lessons of history. The Governor George Wallaces who literally stood in the way of racial equality do not get positive historical treatment. Judges know that marriage equality opponents are going to be forgotten, at best, and ridiculed or despised, at worst.
William Eskridge expects there “will be as many as thirty-five marriage equality states very soon – even if the Fifth and Sixth Circuits reject marriage equality claims in pending appeals”:
For example, if the Sixth Circuit were to uphold Michigan’s exclusion of lesbian and gay unions from civil marriage, the Supreme Court would very probably take the Michigan marriage equality case (or another case from the Sixth Circuit, where several are pending). That would be more good news for the marriage equality movement, because the Michigan case comes loaded with detailed findings of fact not only documenting the value of lesbian and gay families, but also soundly refuting stereotype-laced arguments supporting their exclusion.
Imagine this scenario. The Sixth Circuit upholds Michigan’s (or another state’s) exclusion in the next several months, and the Supreme Court takes review. During the briefing process, one state after another recognizes marriage equality – often through a deliberative process where elected officials support or acquiesce in lower court judgments requiring marriage equality for lesbian and gay couples. Amicus briefs fall into line behind marriage equality, with support from businesses, many religious groups, public officials from both parties and from most of the states.
As tens of thousands new marriage licenses are issued to lesbian and gay couples all over the country, it strikes me as highly unlikely that the Supreme Court would affirm Michigan’s pervasive discrimination against committed lesbian and gay couples and their families.