Only five years ago, same-sex marriage was not legal anywhere in the United States. That changed in November 2003, when the Supreme Judicial Court of Massachusetts held in Goodridge v. Department of Health that the state may not deny the protections, benefits, and obligations conferred by marriage to two individuals of the same sex who wish to marry. Advocates of same-sex marriage hoped that the decision in Goodridge would prompt courts in other states to recognize this right as well. During the summer of 2006, however, those hopes were deflated by decisions reached by the highest state courts in New York and Washington. Within a twenty-day period, the New York and Washington courts both held that restricting marriage to different-sex couples is constitutional. In addition, in the wake of the fall 2006 midterm elections, a total of forty-five states now ban same-sex marriage either by constitutional amendment or by statute. In light of these developments, Goodridge seems to have caused a backlash against same-sex marriage, rather than increased acceptance of it.
Although numerous commentators have addressed the differences between Massachusetts, on the one hand, and New York and Washington, on the other, less attention has been paid to what these states have in common: Courts in all three states permit same-sex couples to legally adopt children. Given the distinct standards used in same-sex marriage and same-sex adoption cases, little analysis has been done of the similarities and differences between these two sets of cases. This Comment endeavors to fill that gap. By analyzing the reasoning that underlies each set of cases, this Comment reveals glaring inconsistencies. In states that prohibit same-sex marriage but permit same-sex adoption, terms such as "marriage" and "family" and "parents" are defined differently by courts depending on the context in which they are used. This Comment urges courts to reconcile the inconsistencies by embracing the definitions and reasoning used in the majority of same-sex adoption opinions. If courts adopt this proposal, it may allow them to take the first step to legally recognizing same-sex marriage. While this is certainly not an inevitable outcome, it would create a greater cohesiveness in family law and, more importantly, would grant to all citizens the rights and benefits that accompany marriage.55-1-6