But every judge who has decided a same-sex marriage case since last year's Supreme Court ruling has come down on the side of gay marriage and has drawn heavily on the high court's opinions.
Theodore Olson, half of the high-powered legal team representing two Virginia couples in the case decided Thursday, said he is confident about the outcome in the appeals courts "irrespective of the composition of any court. These arguments are so compelling...and the arguments presented against marriage equality are so weak."
Defenders of the marriage ban are far from conceding that point. "The people of Virginia understand that men and women bring distinct, irreplaceable gifts to family life, especially for children who deserve both a mom and a dad," said Byron Babione, a lawyer for the pro-ban group Alliance Defending Freedom. "Understanding that truth, the voters of Virginia approved a constitutional amendment to affirm marriage as the union of a man and a woman. The court's reasoning, however, would permit nearly every relationship to be a marriage so long as it is grounded in choice and emotion, yet that's not what marriage or true liberty has ever been."
The issue ultimately is headed to the Supreme Court. When and from which state are not clear.
The justices are more likely to step into a case when a federal court has struck down a state constitutional provision, as has happened in Kentucky, Oklahoma, Utah and Virginia. The Kentucky case involves only the state's recognition of legal same-sex weddings from elsewhere.
Yet, on the same day in June that the court said legally married gay couples could not be denied federal benefits, the justices declined to rule on the merits of California's Proposition 8 that defined marriage as between a man and a woman. The effect of the decision was to allow same-sex unions to resume in California, but the high court said nothing about the right to marry.
Some justices have suggested the court should be in no hurry to do so, but the stream of lower court rulings in recent months may improve the odds of a Supreme Court decision on gay marriage in June 2015 or the year after.