This is what I get for following the crowd and saying that a marriage case at the Court was likely this term… Lots of great coverage of this morning’s big news, but there also seems to be some confusion about what this means for states that are within those Circuits but weren’t party to these cases. Actually bringing marriage equality to these states is going to require some more litigation, especially if a state decides to continue to fight for its discriminatory marriage laws.
In other words, this post is for those who like lawyer-nerdy, procedural notes.
First, the immediate effect. There were 5 states that were already under orders from various courts to recognize same-sex marriages, but stay orders put those mandates on hold pending Supreme Court action. With the Court declining to hear a further appeal, those stay orders either have expired by their own terms or have been lifted by the court that granted it, so the substantive mandates to implement marriage equality is now in effect in Virginia, Indiana, Wisconsin, Oklahoma, and Utah. This means that there is now marriage equality in a total of 24 states and D.C.
(Very helpful map from ThinkProgress.)
The next thing to look for is developments in the states that are covered by these Circuit Courts of Appeal, but don’t have any sort of orders against them currently. We can assume that their laws will not fare well when challenged, but the challenge still has to happen. A few lawsuits are pending, and the plaintiffs will ask for immediate decisions in those cases; in other states, suits are yet to be filed. The 6 states to watch now are West Virginia and North and South Carolina (in the 4th Circuit), and Colorado, Kansas, and Wyoming (in the 10th).
[The 7th Circuit was the other court with marriages cases that were denied cert. this morning. It covers three states: Illinois already enacted marriage equality through legislation, and Indiana and Wisconsin have orders against them that, as noted above, can now go into effect. Similarly, the 4th Circuit also includes Maryland, but it adopted marriage equality by voter initiative, and the 10th also includes New Mexico, but its state Supreme Court has already ordered marriage equality on the basis of the state constitution.]
Finally, there are the states in other Circuits. The 9th Circuit is expected to rule for marriage equality, but cases are also pending in the far more conservative Fifth, Sixth, and Eleventh Circuits. Then, there are the large number of states where challenges to marriage discrimination is still in the earliest of litigation stages. Between states that have already adopted marriage equality and the ones mentioned above that presumably will be ordered to do so in fairly short order, same-sex couples will be able to marry in 30 states and DC. If the 9th Circuit goes as expected, that number will increase to 35 (since four of the nine states in that Circuit already have marriage equality.)
So although this morning’s denial of cert. is great news in several states and good news in a half-dozen more, the rest of the country is still waiting and living under discriminatory laws. That’s frustrating and harmful, and the Court is surely going to have to take this up at some point. However, by the time it does so, the majority of the country will already have experience with marriage equality.