If the trend continues and the Federal judges keep overturning bans and appellate courts back them up, this may never get to the SCOTUS (who tend to take cases where there is disagreement between lower courts). That being said, I suspect at least one Fed. Appellate court is going to hold up a SSM and my money is on the 5th Circuit (TX,LA,MS) which is heavily balanced to GOP nominees
It doesn't get mentioned a lot, but the Eighth Circuit upheld Nebraska's gay marriage ban in 2006. I think that court's an even bigger possibility for a circuit split (if that case didn't already establish a split).
Sure, but the Eighth Circuit will still have to decide if that's still good law post-
Windsor. They were relying on
Baker v. Nelson before, the case from the 70s where the Supreme Court refused to hear the case "for want of a substantial federal question." The Court obviously no longer thinks there's no federal question there. That being said, I certainly don't expect every circuit court to come out the same way on this. It's going to the Supreme Court.
