In late July 2008, the Massachusetts legislature repealed the 1913 law that Governor Romney had invoked to prohibit out-of-state couples from marrying in Massachusetts. The overwhelming vote in favor of the repeal reflected both a new easiness with same-sex marriage in the state and a desire to reap economic benefits from having out-of-state couples wed in the state, particularly in light of New York's 2008 decision to recognize same-sex marriages performed in other jurisdictions.

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Setbacks in New York, Washington, and Maryland

In a long-anticipated ruling on several New York cases, in July 2006 the state's highest court dealt a surprising blow to the momentum that was building for same-sex marriage in the country's second-largest state. In a 4-2 ruling, the Court of Appeal rejected the claim that the state constitution compelled same-sex marriage.

The ruling was especially disappointing because the majority seemed to have no interest at all in questions of justice or equity. It seemed to accept the dubious proposition that the purpose of marriage is procreation and implied that protecting the children of opposite-sex marriages was more important than protecting the children of same-sex marriages. The majority opinion makes a mockery of the notion of equal protection.

The Court's chief judge, Judith S. Kaye, wrote a carefully reasoned dissent in which she noted that denying marriage to same-sex couples does not serve the interest of children. She predicted that future generations would consider the decision "an unfortunate misstep."

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

In 2008, however, Governor David Patterson, in response to an appellate decision in one part of the sate, ordered that same-sex marriages legally performed in other jurisdictions be recognized as valid throughout New York state.

Scarcely two weeks after New York state's highest court declared that the state constitution did not compel marriage equality, 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 were 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.