Marriage Mayhem: Putting Together the Same-Sex Marriage Puzzle

It has been quite a week for marriage equality.

It started with the Supreme Court’s decision not to hear any appeals of the same-sex marriage cases before it.  The next day, the 9th Circuit Court of Appeals held that Idaho’s and Nevada’s same-sex marriage bans are unconstitutional. The 9th Circuit becomes the fourth out of twelve appeals courts to hold that same-sex marriage bans violate the Equal Protection Clause.

Because of the broad reach of the circuit courts’ opinions and the many cases still pending, a lot of confusion exists on which states involved in these decisions allow same-sex marriage.

Here are some updates by state:

Nevada and Idaho:

In light of the 9th Circuit’s decision on Tuesday, Wednesday morning Idaho state officials filed a last-minute appeal to the Supreme Court to delay the marriages. The officials argue that the Supreme Court needs to clarify the constitutional standard of review that is used when analyzing laws that discriminate against gays, lesbians, and transgender people.

As I’ve discussed before, the Standard of Review for these cases is a bit ambiguous. The Supreme Court never spelled it out in Windsor, and other federal courts have used different standards of review. Regardless, most courts have held that these bans wouldn’t pass even the lowest level of review.

However, Justice Kennedy ordered the 9th Circuit to postpone its ruling for Idaho and asked the lawyers for the same-sex couples to file a response by 5:00 pm on Thursday.  As a result, gay and lesbian couples in Idaho will have to wait until the Supreme Court makes its decision.

The ruling halting the marriages did not apply to Nevada (despite a mistaken order by Justice Kennedy initially).  Shortly after 3pm PDT the first same-sex couple was married. A Nevada state senator even proposed to his partner during a live press conference.

West Virginia:

The state’s attorney general announced that the state would no longer fight to keep its marriage ban in place, given the Supreme Court’s decision on Monday. Within hours of the announcement, same-sex couples began marrying.

South Carolina and Wyoming:

Both states have vowed to keep fighting for their marriage bans, despite falling within the jurisdiction of a Circuit Court that held that these law are unconstitutional. Both states want to hold out until a federal judge decides on their specific case. In Wyoming, a federal trial judge has scheduled a hearing for October 16th.  

Where We Stand Now

As of Thursday night, 27 states plus D.C. allow same sex marriage.  And some experts say within a matter of days, it could grow to 35!

The growth in large part will depend on the Supreme Court’s reaction to the Idaho appeal and other Circuit Courts that have already heard oral arguments, like the 6th Circuit (that covers Kentucky, Michigan, Ohio and Tennessee), making their decision.

Stay tuned.