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Gay marriage confusion: Where is it legal now? What states are next?

Rulings by the Supreme and Ninth Circuit Courts last week vastly expanded gay marriage. Some states have adopted it, some are fighting, and some are in areas not directly addressed by the rulings. Here's a primer.

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    Joey Hewell and Scott Lindsley embrace after being married Monday outside the Mecklenburg County's Register of Deeds office in Charlotte, N.C.
    Davie Hinshaw/The Charlotte Observer/AP
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It's almost impossible to keep up with the state of same-sex marriage rights around the country, given how quickly the terrain is shifting.

After last week's Supreme Court decision not to hear any of the gay-marriage cases before it, followed quickly by another ruling by a federal circuit court out west, the number of states that either have gay marriage or are in the jurisdiction of federal courts that have declared gay-marriage bans unconstitutional grew to 35, plus the District of Columbia.

That doesn't mean same-sex couples are able to get licenses in every one of those states, but the legal challenges in the states fighting to keep their bans are coming quickly, and are generally being resolved in favor of gay-marriage rights.

"Things are moving at a stunning but appropriate pace," says David Codell, constitutional litigation director for the National Center for Lesbian Rights.

Here's a picture of the new and evolving landscape:

Supreme Court decision. The Supreme Court made gay marriage legal in five states by declining to hear appeals to rulings against gay marriage bans there. These states are Indiana, Oklahoma, Utah, Virginia, and Wisconsin.

But the high court's decision resonated further. By declining the cases, the Supreme Court endorsed the rulings of the three federal circuit courts that made them – the Fourth, Seventh and 10th. As a result, those decisions now hold sway over all the states in those circuits.

In addition, the decision by the Ninth Circuit court later in the week to strike down same-sex marriage bans in Nevada and Idaho also applies to bans in other states in its jurisdiction.

Other states to legalize gay marriage since the decision. In those four circuits, some of the states that had gay-marriage bans have already had them struck down or abandoned them. Same-sex marriage licenses have started being issued in North Carolina, West Virginia, Colorado, Alaska, and Nevada. Idaho will start same-sex marriages Wednesday morning.

In North Carolina, a federal judge moved quickly to strike down the state's ban, noting that the Fourth Circuit had already spoken. That quick move, Mr. Codell hopes, may become a trend. In Alaska – though the state is still fighting the decision – a judge also moved quickly, with a federal judge overturning the state ban on Sunday.

"There is no reason for any delay in the states that are under the jurisdictions" of the circuit court rulings," says Mr. Codell.

States still fighting the decision. But other states in those four circuits are not yet issuing marriage licenses as they fight to keep their same-sex marriage bans. These states include Kansas, Montana, South Carolina, and Arizona. In Arizona, however, a federal judge has indicated that he believes the Ninth Circuit ruling makes Arizona's ban unconstitutional and has given the state until Thursday to persuade him otherwise.

States in limbo. No states in the jurisdictions of the First, Second, or Third Circuits have gay marriage bans. But two other circuit courts – the Eighth and the 11th – have states with bans but have not yet taken up the issue, though several federal cases are pending. In those circuits, Arkansas (Eighth) and Florida (11th) have closely watched cases moving through state courts, with lower courts already declaring gay-marriage bans unconstitutional.

In Florida, Attorney General Pam Bondi, who has repeatedly defended her state's ban on gay marriages, on Monday asked that the Florida court case move directly to the state supreme court for a ruling. Though Attorney General Bondi had earlier opposed speeding up the trial, a filing from her office late Monday said that now "this particular issue now requires a prompt Florida Supreme Court decision."

States nearing a decision. The pending cases that observers are most curious about, though, are currently before the Fifth and Sixth Circuits, which tend to be more conservative and where the decision could well be different from every other recent circuit court ruling.

The Sixth Circuit, whose decision would apply to bans in Kentucky, Michigan, Ohio, and Tennessee, heard arguments in August and a ruling could come at any time. The Fifth Circuit, which includes Louisiana, Mississippi, and Texas, will hear arguments later this year. Louisiana is one of the few states where a federal judge has bucked the trend, upholding the state's ban.

The importance of those upcoming decisions – particularly if any one of them upholds the constitutionality of a same-sex marriage ban – was underscored last month when Supreme Court Justice Ruth Bader Ginsburg was asked about the issue last month.

"So far the federal courts of appeals have answered the question the same way – holding unconstitutional the bans on same-sex marriage" Justice Ginsburg said in an interview at the University of Minnesota Law School. "There is a case now pending before the Court of Appeals for the Sixth Circuit. Now if that court should disagree with the others then there will be some urgency in the Court taking the case. But when all the courts of appeals are in agreement there is no need for us to rush to step in. So it remains to be seen what the Sixth Circuit will rule, when it will rule. Sooner or later, yes, the question will come to the Court.”

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