Three weeks ago I drafted a Law Review analyzing a new Idaho case that I was prepared to write would put the nail in the coffin for states attempting to ban same-sex marriages.

Alas, on the way to the printer, the law changed.

---

---

SAME-SEX BANS OVERTURNED

In June 2013 the United States Supreme Court decided two high profile marriage equality cases, United States v. Windsor and Hollingsworth v. Perry.

---

---

In Windsor the Supreme Court ruled 5-4 that the Defense of Marriage Act, which recognizes only opposite-sex marriages, was unconstitutional.

Justice Kennedy, the “swing vote,” wrote that the Act violated the law because it “demeaned those persons who are in a lawful same-sex marriage … and imposed a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawfully by the unquestioned authority of the States.” The Court came down against states prohibiting same-sex marriages.

CERTIORARI DENIED

After Windsor and Perry a whole series of cases involving same-sex marriage bans were headed to the U.S. Supreme Court on appeal. Interestingly, the Court refused to hear those appeals. Everyone concluded the Supreme Court had banned laws prohibiting same-sex marriages.

IDAHO CASE/NAIL IN COFFIN

Consistent with that view, in October of this year, the federal Ninth Circuit Court of Appeals in Latta v. Otter ruled that a same-sex marriage ban was illegal in Idaho because the U.S. Supreme Court had denied certiorari (review) of several same-sex cases.

The Ninth Circuit wrote: “We repeat: by denying certiorari on October 6, 2014, the Supreme Court has allowed marriages to proceed in fourteen states across the nation; all circuit courts of appeals to consider same-sex marriage bans have invalidated those prohibitions as unconstitutional; and this court has held that same-sex marriage bans deprive gays and lesbians of their constitutional rights thus also supports dissolution of the stay of the district court’s order.”

Issue decided. States may not ban same-sex marriages.

DEBOER V. SNYDER

Then earlier this month along came DeBoer v. Snyder where the Sixth Circuit upheld state laws prohibiting same-sex marriages.

That, of course, sets up a split of the federal circuit courts, which can only be resolved by the Supreme Court.

A pro-marriage equality decision could legalize same-sex marriages nationwide and an anti-marriage equality ruling could bring same-sex marriage bans back in dozens of states.

If the Supreme Court acts quickly, the matter could be decided by mid 2015, if not, there will likely not be a decision until 2016.

PORTER’S PREDICTION

Based on the articles and cases I’ve read, I’m betting the Supreme Court will legalize same-sex marriages and ban state laws that prohibit them. I hope I am right.

We shall soon see.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.