Midwest Marriage Equality Depends on Cases in Neighboring States

Couples hoping to marry in Wisconsin and Indiana will have to wait, with the Seventh Circuit Court of Appeals imposing a stay this week on its own ruling that found same-sex marriage bans unconstitutional.

The Seventh Circuit's move has become fairly standard in federal marriage equality cases this year. While a few lower courts have allowed marriage to begin immediately in states such as Utah, most judges have stayed their decisions so that parties have the chance to exhaust their opportunities for an appeal.

The stays in Indiana and Wisconsin will terminate only when the Supreme Court makes a decision on marriage. The justices will meet on September 29 to decide which -- if any -- marriage cases it will take up review, a process known as granting writ of certiorari. If the high court denies cert in Indiana and Wisconsin, then marriage can start right away, since the refusal to consider the case acts as an affirmation of the lower court's rulings. But if the Supreme Court grants cert or defers a decision until later in the term, then couples will face an open-ended delay.

It's difficult to predict what the Supreme Court Justices will do. Earlier this year, Ruth Bader Ginsberg indicated that the court was eager to settle the issue of marriage equality. But just this week, she said that none of the cases so far before the court warranted review, since their rulings are all generally in agreement with each other.

That means that the Supreme Court might not take up a case until an appeals court upholds a marriage ban.

This could be great news for Indiana couples, since it increases the likelihood that the Supreme Court will deny the state's petition for cert and allow marriage to begin immediately.

But it could also be bad news, since a denial also increases the likelihood that the court will simply allow the stay to continue until a contradictory ruling eventually comes along.

That contradictory ruling could arrive any day now. A decision is currently due from the Sixth Circuit in cases that touch Kentucky, Michigan, Ohio and Tennessee.

In other words, the key to marriage starting soon in Indiana could rest with judges considering a case in Michigan.