Get ready to receive a flurry of wedding invitations from friends stretching from the eastern seaboard to the midwest and across the the Rocky Mountains: this week's Supreme Court marriage decision (or, more accurately, lack of decision) means that 27.3 million more Americans are now living in states with the freedom to marry.
But who's next? Twenty-five states allow same-sex couples to marry today, and 25 remain with marriage bans still in effect. We've ranked the remaining states in the order of their likelihood to be the next to establish marriage equality for same-sex couples. And for a little added context, we've included each state's population in millions.
Population: West Virginia (1.854), North Carolina (9.848), and South Carolina (4.775)
West Virginia, North Carolina, and South Carolina are in the same federal appeals court district as Virginia, where marriage is now legal. Litigation in those three states has been heavily dependent on the Virginia outcome, so they're likely to adopt marriage equality very soon.
A judge had stayed Lambda Legal's West Virginia case pending the Virginia outcome. Now the court has ordered state defendants to submit briefs explaining why the case should move ahead to a rapid conclusion. A South Carolina case was similarly stayed by the court there, and now the plaintiff couples have asked for the stay to be lifted. In North Carolina, parties will need to file briefs in the next few days, advising the court of how they'd like to proceed.
These two states are also affected by the Supreme Court's refusal to rule so far. Kansas and Wyoming share a circuit with Utah and Oklahoma.
Another neighboring state, Colorado, began issuing licenses the day after the Supreme Court's announcement. All of the parties in that case agreed that there was no reason to draw out the litigation any further. A similar agreement could come in Kansas and Wyoming, but conservative state leaders have sounded more likely to drag their feet. The states might choose to prolong their lawsuits for as long as possible — but they're not likely to get very far, considering the precedent now established.
The Ninth Circuit Court of Appeals ruled against marriage bans in these states just one day after the Supreme Court decision. Now the Idaho state attorneys have successfully secured a stay on the ruling while taking the next step in the appeals process, which is called an "en banc review" by the entire Ninth Circuit instead of the three-judge panel that issued the ruling. Eventually, if antigay lawyers lose once again, they will have to decide whether to petition the Supreme Court for review — which seems futile based on its decision this week.
UPDATE: The stay originally applied to both Idaho and Nevada. But the Supreme Court clarified "upon further consideration" earlier today that Nevada is allowed to move ahead with marriage equality and that the stay will apply only to Idaho. So move Nevada up the list with marriages set to start.
WAIT A WHILE LONGER
These Ninth Circuit states have pending marriage litigation in federal district courts, but it's all likely to be resolved fairly quickly. Just one day after the Supreme Court rejected appeals in seven marriage cases, the Ninth Circuit ruled against marriage bans in Idaho and Nevada. This all but guarantees that the lower federal courts will rule similarly.
At this point, the only question is how long state officials will prolong the litigation. They have virtually no chance of success, but they could drag out their lawsuits for months or possibly even years if they're particularly intransigent.
The litigation in this circuit, the Fifth, could be the most important in the country right now. Of all the courts to rule on marriage bans since the Windsor decision, Louisiana's is the only one to uphold such a measure. That case, along with a pro-equality decision from Texas, is now on appeal to the Fifth Circuit Court of Appeals. If the bans are upheld, that would be the contrary decision that the Supreme Court is waiting for to take up a case. Plaintiffs might then petition the Supreme Court for review or ask the Fifth Circuit for a rehearing with a larger panel of judges.
If the bans are overturned, state officials may give up trying to defend them and simply let the judgment stand, allowing marriage to begin. Or they could drag out the litigation for more months or even over a year.
A decision in the Sixth Circuit could come any day now. There's no strong indication how the court will rule, and it's possible that it would uphold a marriage ban. If that happens, plaintiffs would almost definitely want a rehearing. They could either petition the Sixth Circuit for a second hearing or go to the U.S. Supreme Court for review, which might happen this term or might have to wait until next year, depending on timing.
If the Sixth Circuit rules against the bans, marriage might start right away. Or state officials might try to prolong the litigation, which would delay the start of marriage by several months, at least.
THE FINAL HOLDOUTS
Although litigation is ongoing in these states, the timeline for the next rulings is murky. Missouri might be the most promising: Attorney General Chris Koster has indicated that he expects marriage to be legal there soon.
• North Dakota
• South Dakota