What does SCOTUS do if there is near unanimity (barring the Fifth Circuit) among the circuits? How will it respond to a legal fait accompli? I sometimes feel they don't like being dealt a mere confirmatory role.
I view Michigan as the strongest case if only because it has a record and a factually supported decision. I can see some of the others being sent back for a record (I am not sure of the factual stipulations in many of the summary or interlocutory proceedings).
I am excited that this is the biggest question being asked by journalists now. What will the Supreme Court do and when? The answer: It's pure speculation and any proposed answer must be preceded with a measure of probability. That doesn't stop us from discussion what we know or how people behave in general.
Lets review the facts first.
Seventeen states are marrying couples right now, and two did so for a brief period of time, so 31 states have never issued any gay couple a valid marriage license.
There are 33 freedom to marry lawsuits in 20 states, under all circuits but the 11th, the two with equal marriage, and the two in DC. Four of the aforementioned circuits have appeals right now. Two of those are in for oral arguments as of this writing, and the Ninth is soon to follow. Given five months, that places decisions in the summer before the next term of the Supreme Court. There is already one adverse precedent at the 8th, and nobody knows if another adverse one will crop up somewhere else in the future, at the 6th, 5th, 8th, or 7th. Those last three are far from having appellate decisions, and definitely not this year.
A healthy majority of Americans support marriage equality. The aggregate right now hangs around 54%, and as high as 59%. There is no backlash to the recent cases whatsoever. On the contrary, attempts by Republicans to pass discriminatory laws have been met with severe backlash. So the chances that the Supreme Court will face significant public criticism is very small. In my opinion, the cultural acceptance of same sex marriage balances out the minority of states that have equal marriage now. It is sort of the opposite situation that the Lovings faced in 1967.
Putting all the facts together, they do have the opportunity to punt, but the fact remains that this issue is heavily litigated, and won't stop until the Supreme Court takes on another case. Actually, a punt would probably incite even more cases. The justices are aware of the movement's national significance, and it would be even worse if there is a circuit split. Either way I do not see them punting on the first case that gets to them.
