concurring in part; dissenting in part.
I concur in that portion of the majority opinion which holds that ORS 656.226 is invalid because it impermissibly discriminates on gender grounds against men in claimant’s position and discriminates against women by denying them the privilege “of providing through their employment for their surviving family unit.” 294 Or at 42-43. I dissent, however, from that part of the opinion which extends benefits to the claimant. In my opinion, this court lacks the power to legislatively repair the constitutional infirmity of ORS 656.226.
The vexing problem in this case is whether, because ORS 656.226 is unconstitutional, we should remedy the constitutional imperfection by extending the benefits to the underincluded class, represented in this case by the plaintiff. Cases such as this raise particularly difficult questions of extension versus invalidation because if the statute is merely invalidated without extension, the claimant does not obtain benefits (even though he prevailed in having the statute declared unconstitutional) and the spectre arises that those needy persons now receiving benefits will also lose them if extension is not granted. Therefore, as many of the cases cited in the majority opinion demonstrate, many courts grant extension without consideration or discussion of the vexing separation of powers question implicit in the extension-invalidation controversy.
*55See generally, Note, Extension versus Invalidation of Under-inclusive Statutes: A Remedial Alternative, 12 Colum J L & Soc Probs 115 (1975).
In 1973, Senate Bill 46 proposed to amend ORS 656.226 to read:
(Bracketed words represent deleted language; italicized words are new language):
“656.226 In case an unmarried man and an unmarried woman have cohabited in this state as husband and wife for over one year prior to the date of an accidental injury received by [such man] one of them, and children are living as a result of that relation, the [woman] other and the children are entitled to compensation under ORS 656.001 to 656.794 the same as if the man and woman had been legally married.”
The amendment was rejected. One irrebutable conclusion can be drawn from the 1973 history: The legislature then intended that ORS 656.226 should not be amended to extend benefits to cohabiting males on the same terms as cohabiting females. This court has, by judicial legislation, now passed the very measure which the legislature rejected in 1973.
Legislatures pass laws. Courts interpret laws. Had it known that ORS 656.226 would be held invalid, the legislature may well have enacted the statute proposed in SB 46. But I do not know that, and neither does any other member of this court. Why, then, does the majority judicially amend the statute in the very manner the legislature rejected in 1973? Apparently because of its perception of what the legislature would have done had it known that we would invalidate the statute.
The solution enacted by the majority is only one of several actions the legislature might take after this law is nullified. There are other possible solutions to the problem, each solution having significant fiscal and sociological consequences. If we do nothing but discharge our constitutionally-appointed task and nullify the offending statute, the legislature, when it convenes in January, 1983, will undoubtedly consider the problem. It might consider these solutions in responding to our decision invalidating ORS 656.226:
*561. Do nothing.
2. Extend the benefits of ORS 656.226 consistent with this court’s judicial extension of coverage by amendment along the lines proposed in 1973.
3. Provide benefits to male and female cohabitants alike, but only if the injured person was a family’s principal wage earner.
4. Provide benefits to male and female cohabitants alike if proof of dependency is shown.
5. Decide upon a solution incorporating some of the features of 2, 3, and 4 above.
The legislature could also provide for continued benefits to claimants who were receiving benefits before the date of our decision invalidating ORS 656.226, and whose benefits had been terminated, as well as benefits to claimants whose claims arose between the date of our decision and the date of the amendment.
Legislatures should not look to courts to discharge legislative functions. When legislatures pass laws which may be unconstitutional, expecting the courts to rewrite the law in constitutional terms, courts should not accept the invitation.1
True, many courts, when faced with the choice of invalidation of an unconstitutional benefits statute vis-a-vis extension of underinclusive statutes by judicial act have extended benefits to the excluded class. Most of the cases in which judicial extension has occurred involved statutes which already extended benefits to the excluded class, but required a higher showing — a greater degree of proof — to qualify for benefits. One leading case, Califano v. Goldfarb, 430 US 199, 97 S Ct 1021, 51 L Ed 2d 270 (1977), typifies such cases. There, widows of deceased workers qualified for survivor’s benefits without proof of dependency. Widowers were ineligible unless they proved that they received more than half of their support from their deceased wife. The Supreme Court struck the requirement that male claimants *57make a greater showing than female claimants in order to qualify and granted extension without discussion of the issue. Accord: Frontiero v. Richardson, 411 US 677, 93 S Ct 1764, 36 L Ed 2d 583 (1973), in which the Supreme Court struck a similar provision requiring that spouses of servicewomen prove that she supplied more than half of her husband’s support in order for him to receive dependents’ benefits in the same manner as a spouse of a serviceman, and applied the statute as if the exception to coverage did not exist. The cases cited on pages 50-51 of the majority opinion fall within that category.2
The only recent Supreme Court case discussing the question of extension versus invalidation is Califano v. Westcott, 443 US 76, 99 S Ct 2655, 61 L Ed 2d 382 (1979) (AFDC - Unemployed Father program provided welfare benefits to families with young children in which the father was unemployed, but not to families with young children in which the mother was unemployed, held violative of equal protection component of Fifth Amendment due process; extension to families with unemployed mothers held proper remedy). In Westcott the Massachusetts Public Welfare Commissioner stipulated that some form of judicial extension should be made. 443 US at 90. The commissioner argued that the least disruptive extension would be to extend benefits to children when the unemployed person was the principal wage earner. This suggestion was rejected, and extension was granted because nullification “* * * would impose hardship on beneficiaries whom Congress plainly meant to protect.” 443 US at 90. The court specifically noted that “[s]ince no party has presented the issue of extension versus nullification for review, we would be inclined to consider it only if the power to order extension were clearly beyond the constitutional competence of a federal district court.” 443 US at 91. Even so, four justices dissented on the ground that the court was usurping the prerogatives of the legislature. 443 US at 93-96.3
*58There can be no denying that this court is legislating, and I believe that in so doing we violate the separation of powers clause of the Oregon Constitution.4 It may be that the legislature would enact ORS 656.226 in the very form the majority has. On the other hand, it might not. In addition, the very fact that this court has passed SB 46 may have a future effect upon further legislative consideration of this question.
The effect of this court’s opinion is to enact a new law. I have no experience as a legislator, but I suspect that it is sometimes impossible to obtain a majority for any one change to a statute even though a majority of the legislators agree that some change should be made. Thus, the fact that we nullify and extend may have legislative significance apart from the outcome of this case. If the legislature is unable to agree on a solution, this court’s “legislative” solution would remain in force.
The point is not only that courts are forbidden to legislate, we lack the resources to make legislative decisions. Though we may possess judicial ingenuity, we have no knowledge of the fiscal implications of our opinion, and little knowledge of its other implications. We have no idea what the legislature’s collective belief is concerning the extension of benefits to able-bodied, nondependent male claimants5 as compared with some other form of relief to families of injured or deceased unmarried workers who have living children as a result of cohabiting with another person. Were I a legislator, in all probability I would do what the majority has done in extending benefits. But I might *59vote for some other solution, were I convinced that there are other policies which suggest a different answer, or other needs which are greater or more immediate, or if my constitutents disfavored the extension of benefits.
The legislature convenes in two months, perhaps earlier. It has the power to avoid almost every adverse effect of invalidation, even those occurring before it convenes. That is its constitutionally-appointed job, and we should let them do it.6
The legislature, by virtue of Article III, section 1, of the Oregon Constitution has been determined to be better able to yoke in common harness the diverse temperaments, qualities and needs of our society. Although this is an appealing case for extension, I believe that our deference to the legislative department is compelled, lest the judicial lamb swallow the legislative lion.
Campbell, J., joins in this opinion.Situations in which legislatures enact legislation using broad language, leaving it to the courts to interpret ambiguous terms, are distinguishable. See, e.g., DeCicco v. Ober Logging Co., 251 Or 576, 579, 447 P2d 297 (1968).
Moreover, in a number of cases cited by the majority, by the time of the appellate court decision the legislature had already made the change made by the court. In most cases ordering extension, extension was ordered without discussion of the issue whether extension was appropriate and permissible.
In addition to the commissioner’s stipulation for extension, there was a compelling practical reason for the Westcott extension: all benefits to dependent *58children would be limited if extension was not ordered. In the case at bar (contrary to the statement on pages 52-53 of the majority opinion that “[¡Invalidation here would deprive all cohabitants of unmarried workers of benefits”), children of injured workers, male or female, would continue to receive benefits under ORS 656.204(4).
Article III, section 1, of the Oregon Constitution provides:
“The powers of the Government shall be divided into three seperate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”
I should point out that the legislature has not required a showing of dependency for nondependent, able-bodied male spouses to receive benefits. See, e.g., ORS 656.204.
Particularly when time is not of the essence.