A Federal Basis for Equal Rights

Having failed to make his case for same-sex couples before the California Supreme Court, California Attorney General Jerry Brown has decided, as the cliché goes, to "make a federal case out of it." Last night Bob Egelko, Staff Writer for the San Francisco Chronicle, released the following story:

Attorney General Jerry Brown, who tried to persuade the state Supreme Court to overturn California's ban on same-sex marriage, took the same position in federal court Friday, saying Proposition 8 violates the U.S. Constitution's guarantee of equality.

The initiative approved by the voters in November "denies gay and lesbian couples and their families the same dignity, respect and stature afforded families headed by a married couple," Brown's office said in a filing in U.S. District Court in San Francisco.

This is, of course, a legitimate path of appeal. However, what I had not realized before reading Egelko's report is that those who stand to gain the most from this appeal may also be least likely to support the action:

Gay-rights groups have avoided bringing up federal constitutional issues in the marriage cases, fearful of a U.S. Supreme Court defeat that would set their cause back for years. Brown's refusal to support Prop. 8 means that the conservative Christian groups who sponsored Prop. 8 will defend it in federal court, as they did in the state Supreme Court.

I would like to suggest that we may be facing a parallel with conditions in the United States prior to the election of Abraham Lincoln. By keeping questions of slavery at the level of states' rights, a rift was formed that eventually culminated in secession, followed by Civil War. Current historians seem to agree that Lincoln was more concerned about restoring the Union than about the question of slavery. Today we face a similar threat to the "unity of the United States," grounded in a variety of contentious "social issues," one of which happens to be same-sex marriage (and another, abortion, has been dominating the headlines due to recent violent consequences). Barack Obama has put considerable effort into reminding us of the need for such union, but there are many who see gain in undermining that effort. While I appreciate the concern of gay-rights groups, there is something distasteful about a same-sex couple being accepted in one state and turned out (if not turned upon) in another. Those who remember the Civil Rights Movement should be familiar with that distaste. Brown may be right that the time has come for the case for gay rights to be made at the Federal level. This may not be easy, but it is necessary for the integrity of the country.