With court decisions in New Mexico and Utah expanding marriage equality ever further into states that Brian Brown just weeks ago triumphantly declared were off limits for equality, the playing field has changed. Now, none of the marriage equality cases have asterisks in front of them — as in Prop. 8, where they were arguing for a right that had been taken away — and the battle is moving directly into head-on confrontations with anti-gay marriage bans, which courts seem to find unconstitutional, for obvious reasons. With so many cases working their ways up, you might wonder which cases have the best shot of making it to SCOTUS, and which ones would be the best cases to be argued there. Luckily, Slate has a great piece today addressing just that. Mark Joseph Stern discusses the path forward for Kitchen v. Herbert, the Utah case:
Odds of reaching SCOTUS: Fairly good, but far from certain. Some observers have taken it as a given that the Utah case is destined for the high court: It’s a head-on challenge in a deeply red state, the kind of direct conflict that the Prop 8 caseresoundingly was not. But it’s this straightforward factor that makes this case so risky. The court can’t wriggle out of it Perry-style; if the justices take it, they can’t get rid of it without issuing the final word on state-level bans. Given these stakes, the justices might prefer to kick the issue down the road—they’re pretty good at that—and let the lower courts figure this one out.
What happens if it doesn’t: That depends on the 10th Circuit’s ruling, but bydenying a stay of the federal judge’s decision, the circuit judges may have already shown their hand. A court will generally stay a ruling if there’s a reasonable likelihood of reversal; here, the court has tacitly suggested, there is not. If the circuit court does uphold Judge Robert Shelby’s Scalia-baiting ruling, expect gay couples in Colorado, Oklahoma, and Wyoming—non-gay-marriage states within the 10th Circuit—to bring suit (and win).
Among other cases, he also examines the Ohio case which ruled that existing marriages must be recognized on death certificates, suggesting that that would likely lead to a broad ruling that all states must recognize out of state marriages (the same way they do with all other marriages in the United States, ahem, the Constitutional law here is not complicated), which wouldn’t be as sweeping as the Utah outcome, but would mark huge progress nonetheless.
Read the whole thing.