Gradations of Equality

The Guardian has an interactive chart depicting the complicated palette of civil rights legislation that affects same-sex couples in different American states. I thought it was interesting (in the calamari ice cream sense of the word) to see, diagrammatically, just how many shades of gradation comprise the broader issue of equal rights for same-sex couples, besides the capstone rights-bundle of full marriage equality. Along with drug laws, capital punishment, and eminent domain, this set of topics really illustrates both the promise and the pitfalls of accepting a more federalist approach to nationally controversial (but regionally more settled) topics.

On one hand, the states with more liberal legislatures have gone a long way toward legal equality for same-sex couples– and nobody would dream of seeing such meaningful legislation come out of the U.S. Congress. By authorizing gay marriage legislatively, as New York and several other states have done, these legislatures have invested their policies with a depth of democratic legitimacy that would not automatically flow from court decisions, at any level, that mandated similar results. So, in a sense, this divergence from the national norm represents a healthy opportunity to maximize the advancement of civil-rights objectives in friendly political climates, democratically, on an ad hoc basis.

On the other hand, you have blue-ish states like Pennsylvania, where even legislation to protect the rights of same-sex partners to visit one another in a hospital has not been forthcoming, presumably because of the conservative dynamic of statewide politics. If you view the United States as a federation of state polities, rather than as a single national polity, then it might be fairly easy to say: Well, let Mississippi have its own laws; we’ll do things our way in the Northeast. But a case like Pennsylvania’s brings the complicated question of such federalism (I think) into starker relief.

That is, as citizens of a federal system, how do we deal with the historical legal land boundaries that have ensnared comparable local polities within political jurisdictions– the states– that now have very different power constellations? Should we simply tolerate that, for the time being, the civil rights of an individual in Philadelphia will be far fewer than those of the same individual in New York City or Boston? Should we push for reform in Harrisburg and every other state capital, while implicitly tolerating that the same individual in Oxford, Mississippi will likely have to endure a much longer and more doubtful slog  toward his own eventual legal equality? Or, since these are fundamental civil rights matters, should we push for a national policy which inherently invites the possibility of an ugly national backlash or an eventual national policy that constrains the scope of more favorable local approaches?