That's if the fifth circuit even rules. There's been some suggestion that it will just neglect to decide the case due to the supreme court agreeing to rule on the issue. Now, if the 5th circuit wants to rule against SSM, they will probably issue a ruling to give SCOTUS a non-sixth-circuit anti-ssm opinion, which may help to push SCOTUS towards an anti-ssm ruling. But if the 5th circuit wants to rule in favor of SSM, there's no need for them to issue that opinion, as the present odds are that's how the SCOTUS will rule.
I doubt that matters one iota. SCOTUS will rule however it wants no matter what the 5th circuit says.
