Gay marriage Ban Struck Down in Utah.

[politicallefty]

Is the 10th circuit particularly conservative?

I don't know the leanings of each particular judge, but the Tenth Circuit is split evenly 5-5 (with two vacancies) between Democratic and Republican appointees. At worst, it's hard to see that court overturn the lower court, as I believe a split ruling lets the lower court ruling stand. This may very well be the ultimate gay marriage case before the Supreme Court that makes a final ruling on the issue.

[politicallefty]

Huh?  This case will not be heard by the entire circuit en banc.  It's going to be a 3 judge panel. 

Also, you're forgetting about the senior status judges who are 6-4 Republican nominees.

Yeah, I know it's a 3-judge panel first (which can realistically result in a wide array of potential rulings), but it's quite possible that this case could be heard en banc depending on that ruling. In that case, I don't think the senior status judges have votes. If it does reach that point, it's also possible that Obama's current (two) nominees will have filled the remaining vacancies, one of which has already passed the Judiciary Committee. Either way, if the Tenth Circuit in any form upholds the district court ruling, I don't see how it doesn't get to the Supreme Court, as there would essentially be a circuit split.

[politicallefty]

I beg to differ.  Rehearing en banc is an extraordinary procedure for a specific purpose of correcting a major error or conflict with the circuit's precedents.  It's pretty difficult to have an obvious conflict in a case where the precedent in the circuit is thin.  This is the first post Hollingsworth case of its kind.  What precedent of the circuit would it conflict with?

I'll agree to disagree with you on the en banc possibility. I think this issue could bring about such a possibility, particularly if it's a 2-1 decision overturning the lower court's ruling.

As for precedent and the possible circuit split (not including the Ninth Circuit and Prop 8), the Eighth Circuit upheld Nebraska's gay marriage ban in 2006 in Citizens for Equal Protection v. Bruning. That decision made a point of denying the Equal Protection Clause argument. Either way, I think this case will reach SCOTUS. If the Tenth Circuit upholds Judge Shelby's ruling, I think it's a near certainty that the case reaches the Supreme Court. If it goes the other way, I have a hard time seeing the liberals on the Court willing to kick the can down the road several more years by denying cert.