Well, this is quite a way to kick of SCOTUS Week at FindLaw, isn't it? This morning, the Supreme Court shocked the nation by denying certiorari in all of the pending gay marriage cases. The orders were handed down with no warning, no elaboration, and no dissent.
In retrospect, the denials shouldn't have been that shocking: While the issue is of major nationwide importance, there is no circuit split yet, and every federal appeals court to consider the issue since Windsor has ruled in favor of marriage equality. The Court's denial is simply an exercise of restraint -- if they don't have to touch the issue, they apparently won't.
In the coming days, we'll be doing a circuit-by-circuit review of the Court's major cases that they did take, but for today, we're going to stick to the major ramifications of the Court's non-decision in the marriage cases.
What's the Immediate Effect?
The Fourth, Seventh, and Tenth Circuit holdings, all in favor of marriage equality, now go into effect. This not only means that the states that were party to the proceedings will immediately have legalized gay marriage, but the binding circuit precedent will push all of the other states in those circuits to follow suit -- though some finagling may be necessary in the district courts to force holdout states to follow the precedent.
In total, this should bring the number of states with legalized gay marriage to 30. Both the Ninth and Sixth Circuits have appeals pending, and the Ninth seems like a foregone conclusion at this point, which would bring the total to 35.
USA Today has a great series of maps showing where same-sex marriage is allowed (including states that are affected by today's cert. denials), where appeals are pending, and where bans are still in place.
Will SSM Return to SCOTUS?
Remember what Justice Ginsburg said a few weeks ago? If the Sixth Circuit upholds bans in Michigan, Ohio, Kentucky, and Tennessee, "there will be some urgency" on the High Court's part to intervene. After today's surprise denials, the two most likely courts to rule in favor of gay marriage bans would be the Sixth or Fifth circuits, both of which are extremely conservative.
If either one issues such a ruling, the Court's hand would likely be forced. But there's also the possibility that those courts will take a hint from today's denials -- denials without any dissents -- and realize that the Court's refusal to address the matter, and allow such a major change in these states' marriage laws, speaks volumes about what it would ultimately hold if forced to take a case.
Where's the Next Battleground?
In the federal courts, there are lawsuits pending in nearly every state and circuit. The Ninth and Sixth Circuits are close to ruling in appeals, while the Fifth Circuit also has a case pending in the early stages. The Eleventh Circuit will also likely reach the issue as well, after a district court judge invalidated Florida's ban on August 21, 2014.
Interestingly enough, we haven't heard much about federal court litigation in the Eighth Circuit. In 2006, that appeals court upheld Nebraska's gay marriage ban, though obviously, that holding was pre-Windsor. An Arkansas state court judge disregarded that holding earlier this year, citing Windsor, but other than that, we can't recall any federal district court rulings in Eighth Circuit states.
In the state courts, both the Texas and Arkansas supreme courts have cases addressing their states' bans in front of them, while in Missouri, a state judge just held that state officials would have to recognize legally performed out-of-state marriages. Down in Louisiana, a federal district court judge holds the notable distinction of being the only federal judge to rule against gay marriage, though only a few weeks later, a state court judge came to the opposite conclusion.
In short: 30 down, 20 to go, and even though the Supreme Court didn't decide the issue in one fell swoop, nationwide marriage equality still seems like a foregone conclusion.