Emily Le Coz

The Clarion-Ledger

Gay couples could start obtaining marriage licenses in Mississippi as early as this week if the predictions of at least six top legal scholars nationwide hold true.

The scholars, contacted Friday by The Clarion-Ledger, widely believe that U.S. District Judge Carlton Reeves will grant a preliminary injunction to Mississippi's gay marriage ban as sought by the Campaign for Southern Equality in its case against the state. And that he will do so quickly.

"Not a single Clinton- or Obama-appointed judge has ruled in favor of marriage laws since U.S. v. Windsor," said John Eastman of the National Organization for Marriage, which opposes gay marriage. "I'd be surprised if Reeves became the first one."

Argued before the Supreme Court in 2013, the Windsor case successfully challenged the federal Defense of Marriage Act as unconstitutional. Windsor's attorney, Roberta Kaplan, also represented the Campaign for Southern Equality in Mississippi last week before Reeves, who was appointed in 2010 by President Barack Obama.

Reeves, several scholars said, likely will rule sometime this week.

"He might have already started writing his opinion and just had wanted to see what the people said in court," said Carl Tobias, law professor at the University of Richmond in Virginia. "I'd be surprised if it went more than a week."

Reeves heard more than five hours of arguments in the case Wednesday at the federal courthouse of Jackson and promised to rule "as soon as possible." He has three choices: Grant the injunction; deny the injunction; or grant the injunction along with what's called a "stay."

A stay blocks the injunction from taking effect for a period of time.

Most legal experts predict Reeves will grant the injunction but not the stay, meaning gay couples would then immediately have the right to marry in Mississippi.

"The criteria for issuing a stay are very clear, said Evan Wolfson, a prominent attorney and the founder of Freedom to Marry, a national group fighting for gay marriage.

"A stay is only supposed to be issued when the losing party has a likelihood of success on appeal," Wolfson said. "And given that virtually every appellate court has ruled in favor of the freedom to marry, … there is no reason in prolonging this discrimination even one day more."

But the honeymoon in Mississippi wouldn't last long; experts also predict the 5th Circuit Court of Appeals will grant the state's sought-after stay in a short order.

Eastman said that whatever affect Reeves' ruling has in Mississippi will be temporary. The state almost assuredly will ask the 5th Circuit Court of Appeals for a stay, Eastman said, and the 5th Circuit almost assuredly will grant it.

Other legal experts agreed with that prediction.

"The state could decide not to appeal the decision," said University of Mississippi law professor Dale Carpenter. "I don't know Mississippi politics very well, but I'm guessing it wouldn't be a popular option."

Indeed, attorneys arguing the case before Reeves said it's likely the state will appeal should he grant the injunction. And legal experts the 5th Circuit will probably grant the stay in light of its upcoming decision in the Louisiana and Texas cases.

The 5th Circuit has scheduled oral arguments for Jan. 5 on appeals relating to both a Louisiana case in which a federal judge upheld his state's gay marriage ban and a Texas case in which a federal judge struck his down.

A three-judge panel will hear those arguments and could issue a decision within a matter of months. Several law scholars expect they'll rule in favor of gay marriage bans, which would make it only the second federal appeals court to do so.

Of the five such courts that have decided such cases already, four have struck down gay marriage bans.

"Unless the plaintiffs get very lucky with the selection of panel of judges, I think the 5th will reverse the decision of Judge Reeves," said Mississippi College of Law Professor Matt Steffey.

Regardless of what the 5th Circuit does, the Supreme Court is likely to hear the case because of the existing split among federal appeals courts. And several legal experts think it will side with gay couples who want to marry.

"The overall national pattern is sweeping across the United States and will find its way to Mississippi eventually, probably in the next five years, possibly even sooner," said Andrew M. Koppelman, law professor at Northwestern University in Chicago.

Koppelman and others believe the nation's highest court will hear one of the cases in either April or October, with decisions coming in either June or December, respectively. And most believe that Justice Anthony Kennedy will break a tie among his colleagues.

"My guess," Koppelman said, "is that when his feet are held to the fire, Anthony Kennedy will find that same-sex couples have the right to marry."

Contact Emily Le Coz at elecoz@jackson.gannett.com or (601) 961-7249. Follow @emily_lecoz on Twitter.