"The plaintiffs in this case represent the ever-growing diversity of the openly gay community in Washington. They are teachers, attorneys, ministers, and foster parents. In their everyday lives they are bosses, coworkers, neighbors, clients, parents, friends, and volunteers. It is in these seemingly mundane, everyday roles that the discrimination imposed by the DOMA is deeply felt, but it is nowhere more wounding than in their very homes. Unless the concept of equal rights has meaning there, it has little meaning anywhere," - Justice Bobbe J. Bridge, in the Washington State court 5 - 4 ruling against equality in civil marriage. Many of the decisions in the majority relied entirely on deference to the legislature.
It was a close decision, with the more powerful and impassioned arguments in the dissents; and may well generate a legislative approach to granting more benefits to gay couples that inch closer and closer to marriage rights. Dale Carpenter has an excellent legal analysis here. Money quote:
To the state legislature, the message seems to be this: “Get moving on addressing the hardships faced by gay couples and their children, some of which we’ve listed for you. You don’t have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don’t act, we might.”
To gay-marriage litigants, the message seems to be this: “Go to the legislature and see what can be done about the sorts of problems you’ve identified and that we agree exist. If the legislature is unresponsive, come back to us not with a claim for the status of marriage, but with a remedial claim for the benefits and protections of marriage for your families.”
My guess is that this dual message was necessary to get the five votes needed to uphold the state’s marriage laws.
California and New Jersey are the next battlegrounds. California has already passed marriage rights in both state houses, and the court is mulling. Will the court over-ride the legislature in that state? And if they do, will extreme judicial restrainters cry foul?