The ruling by the state's highest court has the effect of shifting the debate from the courts to the legislature. Polls in New York suggest that a majority of the state's population favors same-sex marriage. Still, the political struggle will be long and difficult.

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Scarcely two weeks after the New York state decision, a bitterly divided Washington State Supreme Court also rejected equal marriage rights for same-sex couples. In a 5-4 decision that generated five separate opinions, the court emphasized its need to defer to the legislature. Although the controlling three-judge opinion repeatedly said that the Court understood the difficulties faced by same-sex couples denied the protections of marriage, it was unwilling to direct the legislature to provide appropriate remedies. It did urge the legislature to reconsider the state's marriage laws.

The dissenting justices in the Washington case accused the majority of circular reasoning and of ignoring the discrimination faced by homosexuals.

Justice Mary E. Fairhurst questioned the logic of the majority's contention that the legislature's refusal to grant same-sex couples marriage rights somehow advanced the state's interest in procreation, pointedly asking, “Would giving same-sex couples the same right that opposite-sex couples enjoy injure the state’s interest in procreation and healthy child rearing?”

Justice Bobbe J. Bridge bitterly disputed the majority's refusal to enforce equal protection for homosexuals, likening the idea “that it is not our place to require equality for Washington’s gay and lesbian citizens" to condoning racial injustice. Had the majority's opinion prevailed in 1954 on racial issues, “there would have been no Brown v. Board of Education.”

The disappointments in New York and Washington was followed by a similar disappointment in Maryland. In September 2007, in a 4-3 decision characterized by same-sex marriage advocate Evan Wolfson as "shallow and inadequate," the state's highest court upheld the state's ban against same-sex marriage.

Victory in New Jersey

In January 2004, the New Jersey legislature passed a domestic partnership law that provided some of--though not all--the benefits of marriage.

In 2002, seven gay and lesbian couples initiated a lawsuit demanding the right to marry. Finally, in October 2006, the New Jersey Supreme Court issued its ruling. Coming after setbacks in the highest courts of New York and Washington, the New Jersey ruling, while not mandating marriage, was a significant victory in the battle for equal treatment of gay and lesbian couples.

A unanimous court ruled that "our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples."

The court, however, left it to the state legislature whether the ruling be implemented by amending the marriage law in order to permit same-sex couples to wed or by creating a Vermont-like parallel system of civil unions. Three of the court's seven members dissented on the remedy, arguing that the court should simply allow same-sex couples to marry, and pointing out the symbolic value of the term marriage. Nevertheless, the legislature quickly adopted the civil union option, making New Jersey one of the few states to accord same-sex couples in civil unions all the rights and benefits of marriage.

Progress in Connecticut, New Hampshire and Oregon

In April 2005, Connecticut became the first state to enact a Vermont-style civil union bill without a court mandate. The bill, signed into law by Republican Governor Jodi Rell, extends all the rights and responsibilities of marriage to same-sex couples, except for the right to marry. A companion bill defines marriage as the union of one man and one woman. The Connecticut civil union law took effect on October 1, 2005.