Pointing the way toward gay marriage

THURSDAY'S gay-custody decision by the Washington Supreme Court shows why Washington needs to legalize same-sex marriage. Without it, the court was forced to choose between accepting a bad result by following the law and achieving a good result by inventing the fuzzy doctrine of the common-law parent.

The case was about a lesbian couple that decided to have a child. One had a baby through a donor. The daughter was born in 1995 and raised by the two women. After several years, the couple split up. The birth mother kept the daughter. The question was whether the estranged partner had a legal right to visit the girl.

Under the law, she did not. She was not the mother, biological or adoptive, and had not been married to the mother. To the girl, the estranged partner had been "mama," and the other partner "mommy," but that was not enough.

Now it is.

"We adapt our common law today," wrote Justice Bobbe Bridge in a decision that gives the common-law parent the same rights as the biological parent. The rub is, how will the law know one when it sees one? The court set some standards, but they are of the sort that invite dispute.

This dispute could have been avoided if the Washington Legislature had given the two women the ability to get married. The argument over same-sex marriage has been too much focused on social acceptance of homosexuals. That is part of it, but the more urgent part is in defining the rights and responsibilities of adults who already are rearing children.