A missed opportunity on state Supreme Court

The Washington Supreme Court should have invalidated the state Defense of Marriage Act. Its 5-4 ruling upholding DOMA misses a dramatic opportunity.

We understand the court's reluctance to overrule the Legislature and the insistence of many that, as Justice Jim Johnson stated, "marriage is the union of one man and one woman." We define marriage more liberally than that: It is the social and legal cocoon around the family unit, especially for the protection of children. So long as the man-woman couple was the only kind of sexual union publicly allowed, and the only kind of family that one could start, limiting marriage to man-woman couples was not a problem.

That world is gone. It was doomed the first time gays came out of the closet, and certainly when public officials came out and were re-elected.

And gay couples, it turned out, could raise splendid children. Some had come out as gay and brought children into a same-sex family. Some same-sex couples demanded to adopt — and were accommodated. Others started families through sperm donors or surrogate mothers.

The culture changed. In our view, the change was good and has made America a better country. One may disagree with that, but the change is a fact. It is not reversible.

Same-sex families have the same legal needs as other families: permissions for medical treatment and visitation, divorce and property settlements, custody arguments and the settlements of estates. The traditionalists ask how it could be that a constitution adopted in 1889 could demand same-sex marriage in 2006. As Justice Tom Chambers pointed out, it is because the state constitution demanded that each class of citizens be offered "privileges or immunities" on the same terms as other citizens. There wasn't a class of openly same-sex families in 1889. Now there is.

The Defense of Marriage Act is a denial of legal support for these families. As Justice Bobbe Bridge wrote, " 'Defense of Marriage' — 'defense' from what? Against whom? The DOMA ought to be recognized for the discriminatory enactment it is."

The court had a chance to do that yesterday, and Justices Chambers, Bridge, Susan Owens and Mary Fairhurst voted to take it. Alas, it was one vote short.

Same-sex marriage is not dead. It will continue to come up until it prevails.