In Oregon, Democrats and moderate Republicans are being encouraged to create civil-union legislation following Thursday's state Supreme Court decision rejecting gay marriage (and nullifying nearly 3,000 marriage licenses issued to same-sex couples last year in Multnomah County). Senate Majority Leader Kate Brown said the court's silence on the constitutionality of marriage benefits for gays, "leaves the door wide open" for a civil unions law, which is supported by Gov. Ted Kulongoski.
In Connecticut, the state House approved a bill to provide same-sex couples with the same rights, benefits and obligations of married couples on Wednesday, but added an amendment that defines marriage as between a man and a woman (Connecticut has been one of only nine states that have not passed a Defense of Marriage Act limiting marriage to opposite-sex couples). Gov. M. Jodi Rell will likely sign the bill, although the Family Institute of Connecticut has declared that civil unions are same-sex marriage by another name.
Both these examples highlight continuing advances on the civil unions front via popularly elected state legislatures and governors, and continuing defeats when it comes to same-sex marriage - except in the nation's super-liberal districts. But when a few judges have ruled in favor of gay marriage, it's triggered renewed efforts to change state constitutions (and the U.S. Constitution) to prohibit this, and often sneaking in a constititional bar against civil unions as well.
If it hadn't been decided to make the perfect the enemy of the good, I believe we'd be seeing a civil unions groundswell, much to the chagrin of the religious right.
Update: In the comments area, Alan notes that
even moderate, often Democratic-voting states such as Michigan and
Ohio have passed amendments barring civil unions - a bad sign for
those pushing the judicial strategy. He further observes:
As for comparing marriage suits with classic civil rights suits like Brown v Board of Ed, I think others have suggested that it's a matter of whether the country is near the "tipping point" on an issue, in which case judicial activism can supply a final thrust.
I'd submit that the country was ready to banish Jim Crow in the 1950s (even if the deep South wasn't), and thus Brown did not result in a federal constitutional amendment protecting segregation. But the country is nowhere near ready to embrace gay marriage, and so judicial activism may well result in a federal amendment (as it has already resulted in so many state amendments).
That's certainly the worst-case scenario, but we shouldn't
dismiss the risk.