If the appeals judges continue the unbroken eight-month streak of rulings in favor of gay marriage, that could make it easier for the nation’s highest court to come down on the side of supporters.
If even one ruling goes against them in the four courts taking up the issue in the coming weeks, it would create a divide that the Supreme Court also could find difficult to resist settling.
“We’re going to be racking up more courts of appeals decisions, and every one we get puts more pressure on the Supreme Court to weigh in,” said Douglas NeJaime, a law professor at the University of California-Irvine. “It’s very likely the Supreme Court ultimately settles this question. Given how quickly things have moved, it’s hard for the court to avoid this in the short term.”
A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati will hear arguments from attorneys in six cases from Kentucky, Michigan, Ohio and Tennessee, all Wednesday, the most of any federal appeals court so far.
Similar arguments are set for Aug. 26 in the 7th Circuit in Chicago, for bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco, for bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas‘ ban.
The flurry of arguments means an upcoming spate of rulings, possibly all issued this autumn, that could profoundly alter the nation’s marriage laws.
If the four federal circuit appeals courts rule in favor of gay marriage, then nine states with pending appeals stand to have their bans stricken down altogether or ordered to recognize out-of-state gay marriages: Ohio, Michigan, Tennessee, Kentucky, Texas, Indiana, Wisconsin, Idaho and Nevada, though the decisions likely would be put on hold for a Supreme Court ruling.
But observers say the 6th or 5th circuits could deliver the first victory for gay marriage opponents.