For gay-marriage backers, rulings portend long road

In New York and Washington State this month, justices point to state legislatures to decide the issue – a lengthier process.

In 2003, when the Massachusetts Supreme Judicial Court declared that same-sex couples have a state constitutional right to marry, conservatives braced for what some feared might become an avalanche of similar rulings across the country.

Gay rights activists filed lawsuits in several key states, hoping to duplicate the constitutional victory and generate momentum in a national civil rights movement. But nearly three years later, Massachusetts remains the only state where gays and lesbians have a constitutional right to marry.

Earlier this month, New York's highest court upheld the state legislature's determinations that marriage is between one man and one woman. And on Wednesday, the Washington State Supreme Court reached a similar conclusion.

The two decisions are major setbacks to those seeking the protections of marriage for same-sex couples. A body of law is emerging from the rulings that suggests the issue be resolved by lawmakers, not judges. Such decisions will make it somewhat harder for other courts in the future to embrace the aggressive judicial approach of the Massachusetts high court.

"This [Washington State decision] was one they were really betting they were going to win," says Jordan Lorence of the Arizona-based Alliance Defense Fund, which opposes gay marriage. "Now the Massachusetts Supreme Judicial Court seems more and more that it is leading a one-court parade. They came down with that decision in 2003, and no one has joined them."

Although there are significant differences, both the New York and Washington State decisions share a common theme. The majority of justices point to the legislature rather than the courts as the proper forum to decide the issue.

"While same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it," Justice Barbara Madsen wrote in the Washington State decision.

"It is not for us to say whether same-sex marriage is right or wrong," says Judge Robert Smith in the majority decision released July 6 in the New York case. "The dissenters assert confidently that 'future generations' will agree with their view of this case. We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives."

The litigation strategy pursued by same-sex marriage activists seeks to quickly achieve via judicial rulings what might otherwise take years of effort to secure via the legislative process. Litigation is the fastest possible way to reach their goal of ensuring that the benefits and protections of marriage can be bestowed on all American families regardless of sexual orientation. But many judges are reluctant to take up the challenge, gay rights leaders say.

"The sad fact is that in waves over the last 50 some years, there have been concerted efforts to intimidate courts and delegitimize them with labels like 'activist judges,' " says Evan Wolfson, director of the New York group Freedom to Marry, and author of the book "Why Marriage Matters: America, Equality, and Gay People's Right to Marry." "What is sad is that in the last three weeks, we've seen courts succumbing to that bombardment and failing to do their job."

The same-sex marriage movement is not without its victories. Activists stress that in addition to litigation, they are engaged in legislative efforts and public debates nationwide.

Six states – Vermont, Connecticut, New Jersey, California, Hawaii, and Maine – have passed some form of recognition of same-sex couples.

"Whether you start this in a court or you start this in a legislature, ultimately to succeed we have to convince Americans that it is wrong to exclude same-sex couples from marriage," says Matthew Coles, director of the ACLU's Lesbian Gay Bisexual Transgender Project in New York.

He sees the Washington State decision as written in an apologetic tone that suggests a majority of the justices were sympathetic to the problems outlined by gay couples in the case. "In a sense from a political standpoint, we had a majority. We just didn't have one from a legal standpoint," Mr. Coles says.

Others say gay rights lawyers have preferred litigation to the legislative process because in many cases they have lost the legislative debate. Twenty states have amended their constitutions to bar same-sex marriage, and at least six other states will decide whether to adopt similar amendments this fall.

"The legislative response has been coming through people amending their state constitutions," says Mr. Lorence. "People are fundamentally rejecting the arguments that same-sex couples should have exactly the same protection that regular married couples have," he says. "There might be a benefit or two of rights they need to have, but marriage is something different."

With major defeats in New York and Washington State, same-sex marriage activists are anxiously anticipating a pending decision by the New Jersey Supreme Court. In addition, activists are closely following court cases in California and Maryland, and an effort in Massachusetts to place the same-sex marriage issue on the ballot in 2008.