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In a landmark 5-4 ruling in June, the Supreme Court struck down the Defense of Marriage Act's denial of federal benefits to lawfully married same-sex couples but, in another case from California, declined to say whether the Constitution requires states to allow such marriages to begin with. Now, just 11 months later, the battle for marriage equality has turned an important corner, with a new round of cases beginning to reach federal appellate courts for review. This creates the potential for a speedier-than-expected return to the Supreme Court, perhaps as early as next term.
The explosion of new lawsuits in more than 30 states challenges existing state bans on same-sex marriage, as well as state refusals to recognize same-sex marriages lawfully performed elsewhere. These suits, including ones newly filed in Georgia and Ohio, rely heavily on the language and logic of the Defense of Marriage Act opinion, United States v. Windsor, written by Justice Anthony Kennedy in particular its disapproving view of the harm inflicted on gay and lesbian couples and their children by relegating them to second-class citizenship for no good reason.
The judicial response so far has been remarkable: 11 straight favorable U.S. District Court rulings, overturning marriage bans in Utah, Oklahoma, Texas, Michigan and Virginia, and more limited victories requiring states to recognize valid out-of-state marriages. As yet, there have been no losses, even in deeply red states.
The appeals process is already underway. Last month, a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals heard appeals of the recently decided Utah and Oklahoma cases. On May 13, a panel of the 4th U.S. Circuit Court of Appeals, sitting in Richmond, Virginia, is scheduled to hear an appeal of the Virginia ruling that cleared the way for same-sex marriages in that state. By fall, it is expected that there will be decisions from multiple Circuit Courts opining on the constitutionality of excluding gay and lesbian couples from marriage, which could well impel the Supreme Court to revisit the issue sooner rather than later.
Whatever the outcomes, enforcement of the circuit-level decisions is likely to be delayed while the Supreme Court justices decide whether to take up one or more for review. A Supreme Court ruling settling the matter would then be possible by June 2015, or the following term if things are delayed. Should the justices take a pass, the Circuit Court rulings would go into effect in all states that the courts cover with the prospect of greatly expanding the count of states where same-sex marriage is legal, which stands at 17 plus the District of Columbia.
It would be surprising if the unbroken winning streak since Windsor continued. It seems unlikely, though not impossible, that the ultraconservative 5th Circuit will find an equal protection violation in Texas' exclusion of gay people from marriage, for example. But what's important is for the issue to return to the Supreme Court with expanded support and a critical mass of marriage-equality states so a majority of justices will feel comfortable issuing an opinion requiring marriage equality nationwide. To the extent the justices perceive a growing, if incomplete, consensus among federal judges, it can only help.