Here’s what I wrote in this Reuters Opinion column in June 2013:

If history is any guide, lower courts will divide over the constitutionality of such bans. Some courts may follow the lead of that part of Justice Anthony Kennedy’s opinion in the Defense of Marriage Act case, seeing same-sex marriage bans as driven by unconstitutional animus toward LGBT people.

Other courts may follow the lead of the other part of Kennedy’s opinion in the DOMA case, seeing the issue of same-sex marriage as one properly left for each state to decide. The lower courts will decide whether Kennedy’s gay rights psyche is stronger or weaker than his federalism psyche.

Within a few years, these cases will start percolating back up to the Supreme Court. Especially if lower courts split over the question of the constitutionality of same-sex marriage bans, it will be hard to see how the court avoids deciding the question.

Liptak, in his e-book, says it is “awfully likely” the four most conservative justices were the ones who voted to hear the challenge to California’s Proposition 8, “making a calculation that their chances of winning would not improve with time.” The court ultimately ducked the constitutional issue in that case, finding that the law’s defenders didn’t have legal standing to defend the case.

Liptak is right that time is not on the side of marriage equality opponents. But if the case reaches the Supreme Court while Kennedy remains the deciding vote, it is anyone’s guess whether red state same-sex marriage bans will bite the dust or whether federalism will win the day yet again.