Emily Bazelon writes over at Slate‘s Breakfast Table responding to a post of mine suggesting the 10th Circuit Utah marriage decision is heading to the Supreme Court as soon as next term:

 Rick Hasen and plenty of other people think this means gay marriage is headed back to the justices as early as next term. So far, though, there’s no split over gay marriage in the lower courts since the DOMA ruling. Anyone want to subscribe to my (minority) theory that gay marriage could become the law of the land without another word from the high court? Gay marriage has so much righteous momentum behind it—maybe it doesn’t need another push from Kennedy. Though surely, with a record of 20–0 this year in the lower courts, he will be ready to give it.

Emily says there’s no split over same sex marriage since Windsor, and she’s right on that (all we have is the dissenting judge in the Utah appeal so far). But a reader points me to a pre-Windsor Eighth Circuit case, Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).

This indeed is a circuit split. Further the Eighth Circuit and the Tenth Circuit disagree on the continued vitality of the Supreme Court’s summary decision in Baker v. Nelson, rejecting a constitutional right to same sex marriage.

So this marginally increases the chances that the Supreme Court will take the case.  (I think they’d take it without the split, for reasons I’ve given.)