Today, yet another federal judge struck down yet another state marriage ban. Again, the judge relied on United States v. Windsor, which is truly the gift that keeps on giving. This time the state is Texas. Texas is not necessarily the worst state in the country (that dubious honor perpetually belongs to Mississippi), but, Austin excluded, Texas has a pretty bad reputation, especially under the ever-growing Tea Party influence. Unfortunately, Texas is the second most populous state in the country and is vitally important to the national economy, so as much as some of us may wish Mexico would take it back, that just ain’t gonna happen.
Since Windsor, marriage bans in full or in part have fallen in states with particularly heinous records on gay rights: Utah, Oklahoma, Virginia, Kentucky, and now Texas. Texas was one of the few states that still enforced sodomy laws, and was the opposition party in Lawrence v. Texas, the Supreme Court case which struck down those laws. The decision out of Texas today is not particularly groundbreaking legally–the ban was struck down through both a rational basis review under the Equal Protection Clause and a strict scrutiny review of the Due Process Clause–but that is only because at this point in time (post-Windsor) such an expansive decision is legally conservative. This decision will be appealed to the very conservative 5th Circuit, and that will be the most interesting decision yet: either the most conservative court in the country will buck the heretofore unanimous trend and find in favor of a state ban or it will acknowledge that Windsor effectively prohibits such bans.
However the 5th Circuit rules, these cases are headed back to the Supreme Court–and sooner rather than later. Within a matter of months, there will be decisions out of the 4th, 5th, 6th, 9th, and 10th Circuits. Can the others be far behind (excluding the 1st and 2nd in which all the states are marriage equality states)? My question is not about when the Supreme Court takes up the issue, because the answer is obviously next term. My question is whether the Supreme Court will review just one of those cases (a la Windsor) or combine all of the pending cases into a days-long super-case like Brown v. Board of Education.