you want both the courts and the legislature to chime in, ideally. My preferred scenario would be have the courts declare first, then the legislature follows with enabling legislation - as was the case in Canada when their Supreme Court ruled (the ruling was requested after some of the provinces had acted independently) and the government then codified it.

This has the advantage of establishing precedent and tying the right directly to the constitution (state, federal, Charter Right). The statute then formalizes it in the law - but laws can be changed later whereas rights once established are less vulnerable to changes in the political winds. It's hard to see any situation where both statute and ruling would later be undone (except a federal amendment, which is simply never going to happen).

@1: That's the same approach that was followed in South Africa. In that case there was a common-law definition of marriage which limited it to a man and a woman, and a statute regulating the formalities of contracting a marriage which made a same-sex marriage impossible. The court ruled that they were both unconstitutional, and basically declared a new common-law definition of marriage (since updating the common law is the role of the courts) but gave Parliament a year to fix the statutes. That gave the change democratic credibility (though Parliament acted very much under duress, as the court said it would reluctantly amend the statute itself if the deadline was missed) but still ensured that a later Parliament can't go back and take away the basic right.

Eli - THANK YOU!

Knowing that Justice Alexander was up for mandatory retirement, I have been asking this question for an entire year. I emailed State Sen. Murrary and Josh Friedes to pose this exact same question a while back -- no response (though, to be fair, I can't blame them for not responding without knowing exactly who they were talking to). Regardless, the silence has been maddening.

At least now I have some insight on why they are not pursuing another lawsuit...BUT:

1) According to Wikipedia the original two cases were filed on March 8, 2004 and April 1, 2004. The WA Supreme Court heard oral argument March 8, 2005 - an interval of only/less than ONE YEAR.

2) Justices who hear oral arguments continue on the case until it is decided (even if they get voted out in a subsequent election). That is why that jerk, former Justice Sanders, is STILL deciding cases, despite losing to Wiggins in the last election.

So, presumably (and I am far from being any expert), there still would have been time to get a case in front of the WA Supreme court if filed now (if not a few months ago, dammit!).

This seems like such a better route than going for a costly, divisive, and angst ridden legislative + referendum route. I feel pretty strongly that it would be a 5-4 (+Gonzales) or 6-3 (+Gonzales+Wiggins) decision in FAVOR of marriage equality this time.

Now, before I go bang my head against the wall for an hour or two, I want to THANK YOU again, Eli. The fact that this question was even pursued by a journalist is the reason why I read SLOG religiously.

Barbara Madsen lied repeatedly to SEAMEC when questioned whether she supported marriage equality for same-sex couples (she said that she did), and then she went on to author one of the most viciously anti-gay legal rulings in US history. To the best of my knowledge, Mrs. "marriage is for procreation/gay people are free to marry anyone of the opposite sex" has never been confronted about it.

Until there's an actual ruling on the books, a judge's views on our rights are just speculation.

Well, there was this incredibly accurate interview.

OA: Wow, you must have struggled with denying people equality when so many other states and countries have tried to remedy this injustice.

MADSEN: (Laughs) Not really, you see the hardest part of my job is pretending to care. You wouldn’t believe how many boring sob stories I’ve had to listen to in my nearly two decades on the bench, and those little muscles that help me sigh and roll my eyes are almost worn out, so telling gay men, lesbians and their children that they’re inferior really means nothing to me.

Don't forget that the state supreme court, with few exceptions, gets to decide which cases it hears, so there's no guarantee they even take the case.

Two words you should learn when you decide to write about the Supreme Court: stare decisis. That means that the Court respects the decision of an earlier Court unless there is a good reason to overturn it. The whole point of having court decisions is not to be like a Legislature that changes every two years with the voters' whims.

That's not to say that I agree with the decision on DOMA. I don't. It was stupid. But you don't put a different judge on the court and then roll the dice again.

If you don't understand what I'm saying, then read some of the United States Supreme Court cases on abortion (e.g., "I don't agree with the earlier rulings, but it has become the settled law of the land, and people have come to order their lives around those decisions, so to upset them now would not serve justice.").

And think about whether you want the court to overturn marriage equality next year when Richard Sanders battles himself back on again.

"If you don't understand what I'm saying, then read some of the United States Supreme Court cases on abortion (e.g., "I don't agree with the earlier rulings, but it has become the settled law of the land, and people have come to order their lives around those decisions, so to upset them now would not serve justice.")"

That may have been true at one time, but it is not true with the current radical right U.S. Supreme Court. Two prime examples -- in Stenberg v. Carhart (2000), the U.S. Supreme Court upheld the D&E abortion prodecure. Then in Gonzales v. Carhart (2007) after Alito replaced O'Connor, they struck it down. As Justice Ruth Bader Ginsburg angrily noted, the Court is "differently composed than it was when we last considered a restrictive abortion regulation."

Perhaps even more notorious, McConnell v. FEC (2003) which upheld the McCain-Feingold campaign finance reform act, was overturned by Citizens United (2010).

@8: Oh, I get it. We should get rid of stare decisis because the radical right doesn't always adhere to it. That makes a lot of sense.

Just a nit - the court heard the case in 2005, but the decision came out in August 2006.

In addition to not knowing precisely which justices will be on the court when a case gets there, our Supreme Court has no deadline for issuing an opinion. If we can get marriage through the leg in 2012 and win a referendum next November, folks will be having weddings a year from now. With a court case, it could be several years in the future.

@9 Stare Decisis is not some inexorable command. If it was, sodomy laws would still be Constitutional . Second, the statement you posted with regards to abortion decisions by the Supreme Court was not correct. Perhaps you are embarrassed that that fact was pointed out.