re: #241 Targetpractice

They have to get a split of authority among the circuits, and so far all the circuits are finding the SSM bans (whether by statute or constitutional amendment to the state constitution) unconstitutional on equal protection grounds.

The 5th, 6th, 8th, and 11th still have to weigh in, but the majority of circuits (7 in total - 1, 2, 3, 4, 7, 9, and 10) either have ruled against SSM or the states have already legalized there.

The longer this goes, the less likely it becomes that the SSM opponents will prevail at the circuit level because the weight of authority from other circuits becomes overwhelming and persuasive. Windsor has a huge reason to do with that - particularly the Scalia dissent which noted this very outcome (mostly spoiled grapes, but notes too that the majority laid the groundwork for this outcome because the Equal Protection grounds are afforded to gays seeking the benefits of marriage).