What states will have same-sex marriage when the dust settles?

Legal scholars are scrambling to make sense of the unexpected denial by the U.S. Supreme Court to hear any of the same-sex marriage cases before it. While all are certain that marriage equality is now the law of the land in the five states with cases that had reached the Court, other states within the jurisdiction of the circuit courts that had decided on the issue may still be in the air.

A surprised Lyle Denniston of SCOTUSblog said, “In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court. Almost no one had expected that to happen.”

Denniston said it may take weeks for the ruling to shake out.

“First, as a direct result of Monday’s action, same-sex marriages can occur when existing lower-court rulings against state bans go into effect in Virginia in the Fourth Circuit, Indiana and Wisconsin in the Seventh Circuit, and Oklahoma and Utah in the Tenth Circuit,” he explained. “Second, such marriages can occur when the court of appeals rulings are implemented in federal district courts in three more states in the Fourth Circuit (North and South Carolina and West Virginia) and in three more states in the Tenth Circuit (Colorado, Kansas, and Wyoming). The other states in the three circuits where bans have been struck down had already permitted same-sex marriage, under new laws or court rulings (Illinois, Maryland, and New Mexico, which have been counted among the nineteen states in that category).”

But, he analyzes, that it does not stop there.

“Third, four 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.”

He said those four courts will likely by weighing what the Court meant by not taking the cases.

“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,” Denniston wrote. “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.”

New Yorker Executive Editor Amy Davidson believes the Court, indeed, made a statement by not taking the cases.

“As lower courts have read the Windsor decision, they have noticed that its language and legal reasoning, which invokes due process and equal protection, silently condemns state bans on same-sex marriage as well. And, one after the other, they’ve overturned those bans. If they keep doing so, the Supreme Court won’t have to rule again,” Davidson wrote. “The Justices know that; if they thought that Windsor was being wildly misread, they could have used one of the cases Monday to stop them. They didn’t, and that is itself a clarification.”

Two justices had hinted that the Court would take up the issue sooner than later.

Justice Ruth Bader Ginsburg recently hinted that a “Why wait?” attitude may predominate.

“I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” she told The Associated Press in July, referring to interracial marriage, which was not struck down by the high court until 1967. “If a case is properly before the court, they will take it.”

Just days ago Justice Scalia joke with a Colorado group on when the Court would hear a same-sex marriage case.

“I know when, but I’m not going to tell you,” he teased. When pushed, he said, “Soon, soon.”

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