Tuesday, June 10, 2014

Marriage Equality in the U.S. — The Current Summary

Yesterday, a friend asked me a question about marriage equality lawsuits, but I didn't have an answer at my fingertips. In order to clear things up, some numbers:

0 - This is the number of states that do not have marriage equality, a court decision overturning a ban on same-sex marriage, or an active court case that seeks to overturn a ban on marriage equality.

20 - This is the number of states with marriage equality. The latest addition is Wisconsin. It seems unlikely that Judge Crabb will be issuing a stay. The jurisdictions, in order, are:

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire (yeah, New England), District of Columbia, New York, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota, California, New Jersey, Hawaii, Illinois, New Mexico, Oregon, Pennsylvania, Wisconsin. (I'm putting California in the post-Prop 8 position.)

My friend's question was "how many in 2014?" Just 3, although Wisconsin could still be subject to a stay, which would drop it back down to 2. Here they are in order:

2003: Massachusetts
2008: Connecticut
2009: Iowa, Vermont, New Hampshire, District of Columbia
2011: New York
2012: Washington, Maine, Maryland
2013: Rhode Island, Delaware, Minnesota, California, New Jersey, Hawaii, Illinois, New Mexico
2014: Oregon, Pennsylvania, Wisconsin

I had forgotten about that long gap after Massachusetts. Hey, what took everyone else so long?

There have only been three this year (so far), and that assumes no stay will be granted in Wisconsin. We've had states with brief windows, followed by stays on the decisions. At this point in 2013, there were only three additional states, so the three states is probably par for the course for the courts. There are an additional six cases which have been appealed to various circuit courts of appeal and are awaiting decisions: Utah, Oklahoma, Virginia, Texas, Michigan, and Idaho. These join cases from Ohio, Kentucky, Tennessee, Indiana, and Nevada that have yet to go through the appeals process (assuming, again, that Wisconsin doesn't go there).

Twenty states with marriage equality. Eleven which are likely to join that list very soon. And now I'm going to make a prediction.

The lower court decisions will be upheld on appeal; the appeal courts will reject the marriage bans. If this happens in all six cases, I doubt the Supreme Court will take any of them. There will be an excruciating wait as the Court lets them stack up before denying cert (that is, refusing to hear the cases). This will bring same-sex marriage to the Fourth, Fifth, Sixth, Ninth, and Tenth circuits. I'm not sure how many of the states early in litigation (the other 19) are in those circuits.

The Supreme Court can pretty much keep pushing back a decision date on the marriage cases, and as with Prop 8, I expect them to do just that. Ultimately, unlike Prop 8, I don't think they'll schedule a June hearing, but will wait a good long time before declining to hear any of them.

By this time next year, we'll be up to 31 states with marriage equality. This may happen throughout the country without any explicit Supreme Court decision saying that same-sex couples have a right to marriage.

Update: I wanted to make my reasoning more clear on why the Supreme Court won't be touching this. From what I've read, typically the Court steps in is if there is a circuit split; given the same set of precedents to work from, two circuits reach opposite conclusions. This has not happened. All the circuits are in agreement that bans on same-sex marriage violate equal protection and due process.

It's possible that Kennedy is thinking, "well, that's an overly broad interpretation of the Windsor decision," but that seems unlikely.
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