FullSizeRender (2)Illustrated by Minji Reem

The U.S. Supreme Court’s October 6 decision to deny cert. on seven same-sex marriage cases took nearly everyone by surprise. Less surprising, but equally confusing, was the whirlwind of activity that followed: States directly affected by the rulings (Indiana, Oklahoma, Utah, Virginia, and Wisconsin) moved quickly to begin issuing marriage licenses to same-sex couples. Judges around the country now bound by precedents in the Fourth, Seventh, Eighth, and Tenth Circuits began haphazardly striking down remaining state bans. Each day seems to boast a new headline about another ban falling like a quivering domino.

But the battle is far from over. Although thirty-five states (representing approximately 200 million people) are either issuing marriage licenses or are bound by circuit precedent to do so, many state officials are fighting desperately to keep their bans in place. After the Ninth Circuit struck down bans in Idaho, Hawaii, and Nevada on October 7, Nevada and Idaho officials sought a flurry of emergency stays and appeals to delay the ruling’s implementation. After Justice Kennedy’s confusing one-day emergency stay was withdrawn, Idaho admitted that it had exhausted its options. Nevada is currently pursuing en banc review by the Ninth Circuit, alleging (in language that approaches the tone of a conspiracy theory) that the Circuit manipulated its process of random panel selection to ensure that Judges Berzon and Reinhart would hear its case.

While litigation continues, more than a dozen states remain in limbo awaiting circuit decisions. As Professor Goldberg highlighted in her thoughtful SCOTUSBlog article, same-sex couples in these states will continue to suffer the tangible harms of discrimination recognized by Windsor until this mess is sorted out. A third of Americans live in a confusing legal patchwork: states that refuse to perform same-sex marriages but recognize ones from others states (Missouri), those where decisions invalidating state bans are stayed pending appeal (Texas, Florida, and a half-dozen others), and others where same-sex marriage rights are still being litigated in district court (North Dakota, Georgia, etc.). Instead of granting cert. and creating uniformity, the Supreme Court established a norm of uncertainty.

We will likely never know for sure why no four justices voted to hear any of the seven cases available to it, but many suspect that it was the result of a complex calculus. The Court’s liberals, in Justice Ginsburg’s words, are in no mood to rush, and letting a swath of new states legalize same-sex marriage only serves to bolster growing public opinion in favor of legalization. The conservatives, reading the writing on the wall and fearful of establishing a nationwide right to “genderless marriage”—or worse, a uniform standard of heightened scrutiny based on sexual orientation—chose the less unpalatable option: to allow a limited number of state bans to fall, and deal with the question another day.

The “swing” voter Justice Kennedy (who, given his soaring language in previous gay rights cases, may hardly be a swing vote at all) may have actually been the only one eager to take this issue up. His temporary emergency stay in the Idaho case might have been an attempt to locate another suitable vehicle, or it may have been a simple procedural maneuver foreshadowing nothing.

Whatever the rationale(s), it seems clear that the Court will not take up the issue until a circuit split develops. Which means that if gay rights activists want a nationwide victory, at least one circuit has to first hand them a defeat. There are a few possible ways this could occur.

In August, the Sixth Circuit heard oral arguments on the validity of the same-sex marriage bans in Kentucky (Bourke v. Beshear and Love v. Beshear), Michigan (DeBoer v. Snyder), Ohio (Obergefell v. Wymyslo and Henry v. Wymyslo), and Tennessee (Tanco v. Haslam). The Fifth Circuit could soon hear oral arguments on any of the many decisions out of Texas or Louisiana, but nothing has been scheduled yet and a request for expedited briefing in one case has already been denied, suggesting the court is in no hurry. The Ninth Circuit could grant en banc review over the Nevada case, but given the circuit’s multiple precedents establishing heightened scrutiny and its overall liberal tilt, this would likely not result in a ban being upheld. The Eleventh Circuit has one case that could be heard soon out of Florida (Scott v. Brenner), but again no date for oral argument has been set. The last remaining circuit still silent on the question is the Eighth Circuit, but no cases are pending at present.

There is also litigation proceeding in state courts, with briefing completed and oral argument granted in the Arkansas Supreme Court (Wright v. Arkansas). Multiple state judges in Florida have struck down the state’s ban, although all decisions are currently stayed pending appeal.

So where does that leave us? Which of these decisions could be the one that finally makes it to the Supreme Court? Smart money is on the Sixth Circuit. The Sixth Circuit’s decision will likely dispose of all six cases it heard on the question, including the Love case out of Kentucky (which, if it ultimately establishes uniform marriage equality, could not be more appropriately named).

As many have noted, the panel is likely to be split, with one judge likely leaning to strike down the bans (Judge Daughtrey, a Clinton appointee), one judge likely to uphold the bans (Judge Cook, a George W. Bush appointee), and one judge somewhere in the middle (Judge Sutton, another George W. Bush appointee, but also the first Republican-nominated judge to uphold the ACA’s individual mandate).

Looking at Love specifically, it seems a plausible vehicle for establishing the circuit split. The district judge based his decision not on the argument that marriage is a fundamental right, but on a finding that “homosexual persons constitute a quasi-suspect class” subject to intermediate scrutiny. This holding conflicts with 2012 Sixth Circuit precedent examining classifications of sexual orientation under rational basis review.

Judge Sutton may find this enough of a reason to reverse and uphold Kentucky’s ban on same-sex marriage. Or he may rely on Baker v. Nelson, the 1972 Supreme Court decision dismissing an appeal regarding Minnesota’s same-sex marriage ban for want of a substantial federal question. Or he may affirm all the district court decisions and invalidate the bans. Or he may do nothing.

Advocates on both sides are waiting anxiously to see what the Sixth Circuit will do. Will it finally establish the circuit split needed to boot this issue up to the Supreme Court? Or will it follow along with each of its sister circuits so far and declare same-sex marriage a constitutional right? If it chooses the latter, the slow march toward marriage equality will continue one state at a time. Although most predict that same-sex marriage will eventually become a national norm, it may not come as soon as many had hoped, or with the authoritative stamp of Supreme Court precedent.

And there is something profoundly unsatisfying about that possibility. If the Court continues to wait until every circuit has decided in favor of marriage equality, it will deny the gay rights movement of its Brown, Loving, or Frontiero. It will make clear that the Court is following, not leading, on one of the most important civil rights questions of our generation. A question that has a clear right answer—one so obvious that it only took Judge Posner a week to issue the Seventh Circuit’s unanimous 40-page opinion striking down bans in Indiana and Wisconsin.

Most commentators see this cert. denial as another characteristic “incrementalist” step of the Roberts Court, which has so far been characterized by narrow reasoning and a high degree of unanimity among the justices. But public opinion and legal precedent weigh heavily in favor of recognizing same-sex marriage as a constitutional right, so further delay seems unnecessary. Rather than worry about being caught “on the wrong side of history,” maybe the Supreme Court should be worried about another possibility: not being on any side at all.