With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks. If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.
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.
It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact. Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.
According to Huffpo, this will mean that about 60% of Americans will live in states with legal marriage equality.
So what happens next? Well, it’s probable that one of the right-wing leaning circuit courts (the Sixth or Fifth circuits seem likely) will issue a decision saying that state bans on marriage equality are Constitutional. This will create a split in the circuit courts, all but forcing the Supreme Court to decide the issue next term. But before that happens, more decision in other circuit courts could bring the total to 35 or more states, making it even harder to imagine any route to victory for anti-SSM folks.