The political risks of supporting gay rights

It is difficult to ask historically disadvantaged minority groups to be patient in waiting for full recognition of their constitutional rights. Thurgood Marshall, the great NAACP organizer and litigator, was asked after Brown vs. Board of Education whether, in light of threatened violence and school closures in the South, he would have been “well advised to let things move along gradually for a while.” Marshall responded that he did indeed believe in gradualism, but “I also believe that 90-odd-years [the time elapsed since the Emancipation Proclamation] is pretty gradual.”

Gay rights supporters today are starting to feel the same way. They have loudly condemned the Obama administration for failing to act quickly enough in repealing “don’t ask, don’t tell,” for defending the Defense of Marriage Act in court and for opposing same-sex marriage.

Yet there may be good reasons for the president to move slowly. Historically, American presidents have rarely gotten far ahead of public opinion on civil rights issues, and the few times they have, they’ve paid a substantial price for doing so.

President Lincoln, known to history as the Great Emancipator, was a relative latecomer to the abolitionist cause. It was, in the end, battlefield losses during the Civil War that forced him, almost as an act of desperation, to free slaves in order to undermine the Confederate labor supply and strengthen Union military forces. The Emancipation Proclamation was so unpopular in parts of the North that it cost Republicans dozens of congressional seats as well as control of some Northern state legislatures in the fall of 1862.

African American voters ended their decades-long loyalty to the Republican Party in the 1930s because President Franklin D. Roosevelt generally included blacks in the assistance offered by his New Deal. But even then, Roosevelt steadfastly refused to support federal anti-lynching and anti-poll tax legislation during his more than three terms in office. Why? Because the white South remained a vital component of the political coalition that had elected him. Eventually, Roosevelt issued an executive order barring racial discrimination by government war contractors, but only because he was desperate to avoid a threatened march on Washington by 100,000 African American protestors as the nation hovered on the brink of World War II.

In 1948, President Truman issued landmark executive orders desegregating the federal military and civil service. But he did so only after advisers warned him, following the disastrous 1946 off-year congressional elections, that his only chance of reelection was taking a disproportionate share of the African American vote in the North. Truman ended up winning two-thirds of the black vote, and without it he would not have been reelected president.

During the first two years of his presidency, John F. Kennedy refused to support civil rights legislation, which would have alienated the Southern Democrats who had proved vital to his election in 1960 and whom he was likely to need again in 1964. Kennedy even declined to fulfill his campaign promise to eliminate racial discrimination in federally subsidized housing “with the stroke of a pen,” leading civil rights critics to deluge the White House with ballpoint pens in their “Ink for Jack” campaign.

It was only the momentous street demonstrations in Birmingham, Ala., and other Southern cities in the spring of 1963 that prompted Kennedy to act on civil rights. After opinion polls found that the percentage of Americans ranking civil rights as the nation’s No. 1 priority had increased to 52% from 4%, Kennedy went on national television to announce that civil rights was a “moral issue as old as the Scriptures and as clear as the American Constitution.” That summer, the administration introduced groundbreaking civil rights legislation, which was enacted into law the following year.

In 1992, presidential candidate Bill Clinton made a campaign promise to end discrimination against gays in the military. When he tried to make good on that commitment without a widespread mandate to do so, he ran into a firestorm of congressional resistance, which helped undermine the rest of his first year’s agenda and resulted in the unhappy compromise of “don’t ask, don’t tell.”

As Clinton ran for reelection in 1996, Republicans, reacting to recent court decisions in Hawaii, sought to make gay marriage a national issue. Unwilling to risk a repeat of his gays-in-the-military fiasco, Clinton preempted the issue by announcing his support for the Defense of Marriage Act.

In 2003, the Massachusetts Supreme Court announced that the state Constitution protected same-sex marriage, giving the issue great salience and fomenting a fierce political backlash. Thirteen states passed anti-gay-marriage referendums in 2004 — and 10 more in 2005-06 — as Republicans exploited opportunities both to rally their conservative religious base and to attract traditionally Democratic constituencies that tended to oppose same-sex marriage, such as African Africans, the elderly and working-class voters. A couple of Democratic Senate candidates, including Majority Leader Tom Daschle, lost partly because the same-sex marriage issue drew more conservative voters to the polls.

Indeed, President George W. Bush may owe his reelection that year to the Massachusetts court’s ruling. Without Ohio’s electoral votes, Bush would not have won reelection, and he carried that state by less than 2 percentage points. A referendum banning gay marriage in Ohio won that November by 24 percentage points.

Having seen that gay marriage was politically toxic for Democrats, Obama ran for the presidency in 2008 on a platform of repealing “don’t ask, don’t tell” and enacting federal employment and hate-crimes legislation to protect gays and lesbians from discrimination. But he steadfastly refused to support gay marriage, both during his campaign and throughout the first 18 months of his presidency, even as two federal district judges ruled in favor of a federal constitutional right to same-sex marriage.

Public opinion on gay marriage has continued to evolve since 2004, when the nation opposed it by a margin of roughly 2 to 1. Most recent polls still show majority opposition, but the margin has shrunk to less than 10 percentage points. One well-respected statistician has estimated that by 2012 or 2013, a majority of people in a majority of states will support gay marriage.

Should Obama be reelected in 2012, he almost certainly will endorse gay marriage during his second term. By then, a majority of Americans, and an overwhelming majority of Democrats, will support the practice. Could Obama shift his position before 2012 without endangering his chances at a second term? Possibly.

But in many of the states that proved to be battlegrounds in the 2008 presidential campaign — Ohio, Indiana, North Carolina, Virginia, Florida — majorities still oppose same-sex marriage. A presidential pronouncement in favor would rally conservative opposition and could prove crucial to some swing voters. For many political progressives who believe that the issue already may have cost Democrats one presidential election (and, with it, two Supreme Court appointments), the risk isn’t worth taking.

Michael Klarman is a professor at Harvard Law School and the author of “From Jim Crow to Civil Rights,” which won the 2005 Bancroft Prize.