Why Gay Rights May Be President Obama’s Biggest Legacy

When he first campaigned for the White House, Barack Obama vowed to be a fierce advocate for gay rights, but it hasn’t always been clear if he intended to keep his promise. Indeed, we gay folks had gotten used to grousing about the President. We noticed the way he dragged his feet after promising to repeal the ban on military service; we felt betrayed when his Justice Department insisted, as George W. Bush’s had done, that gays have marriage equality already, because we can already marry someone of the opposite sex.

To gay Americans, this did not look like the fierce urgency of now. It looked like more of the same, what gay activists had come to expect from Democratic politicians: Do as little as you can get by with to keep the gay lobby quiet, but save political capital for more important causes and constituencies.

But it’s now clear that the Obama administration has quietly accumulated an impressive and unprecedented record on gay rights. Indeed, with his health-care reform bill in jeopardy of being overturned by the Supreme Court or repealed by a future Congress, there’s a real possibility that his efforts for gay equality will prove to be his most enduring legacy. The history books may remember Obama for doing for gays what Lyndon Johnson did for African Americans: Leading his party across a bridge to an irrevocable position on civil rights.

To be sure, his first steps across that bridge were hesitant. In 2009, Obama signed an executive order giving gay partners of federal workers some limited benefits. In 2010, Obama called for repeal of “Don’t Ask, Don’t Tell” in his 2010 State of the Union Address, though he seemed reluctant to push the Pentagon on the issue. Only when the courts seemed poised to strike down the ban did Obama and the Pentagon, now speaking with one voice, argue that repeal was urgent. Credit for the eventual repeal in December 2010 belonged at least as much to congressional Democrats—who passed the measure in a lame-duck session before handing the reins to Republicans—as to Obama.

But Obama sent a clearer signal shortly afterwards, in February 2011, when his Justice Department announced it would not defend the 1996 Defense of Marriage Act in court. Repudiating DOMA, a ban on federal recognition of states’ gay marriages, entailed some real political risk for the administration. But more striking was Obama’s legal risk-taking. By longstanding convention, presidents defend the constitutionality of all laws, even (or especially) laws with which the president disagrees. If a liberal president breaks with that tradition, he potentially gives subsequent conservative presidents a green light to do the same. Even a lot of pro-gay legal scholars were surprised by the move. The decision to break with protocol had to have come from the top.

And now, after years of equivocating, Obama has reversed himself on same-sex marriage, the most important and controversial gay-rights issue of our time. There is nothing remotely ambiguous or cynical about that.

Indeed, the political case for his reversal is weak. Yes, it will please gay donors, who are playing an important role in the 2012 campaign. Yes, it will please the liberal base. Yes, it prevents Obama from seeming to lag behind his own vice president and education secretary, both of whom recently took the same plunge. But winning in 2012 depends primarily on winning swing voters in swing states, places like Virginia and North Carolina, where full-throated support of gay marriage is unlikely to be helpful and may alienate centrists who disagree with Obama or want to focus on the economy. Though some polls now show national support for gay marriage at 50 percent or more, beware: Intensity on this issue continues to favor opponents, which is why they keep passing anti-gay-marriage ballot initiatives.

As for the donors and activists, they have more than enough motivation to support Obama, with or without an explicit endorsement of marriage. Mitt Romney supports a constitutional amendment outlawing gay marriage, something the 2008 Republican nominee, John McCain, was unwilling to do. Many Republicans want to reinstate “Don’t Ask, Don’t Tell,” and they surely would reverse Obama’s reversal on DOMA—and that’s before considering the judicial effects of Supreme Court appointments. From the point of view of a gay-rights activist, ensuring Obama’s reelection was priority one even when he was still “evolving” on marriage.

No, Obama’s gay-marriage conversion smacks of conviction, not convenience. Waiting until after the election would have been politically safer, but if Obama loses in November, as he knows he might, a historic opportunity to speak out for justice could have slipped away. President Clinton has said he regrets having signed the Defense of Marriage Act. Obama seems to have decided not to repeat the error.

“We shall overcome,” LBJ said in March of 1965, shortly after his reelection. When he said those words, he knew he was writing himself into the history books. But he also knew he would probably be writing off the South. There’s no doubt that Obama is a more cautious politician than Johnson: If he thought helping gays would have cost him the election, he wouldn’t have done it—and gays wouldn’t have wanted him to. And the political risk he is taking is not of the same magnitude as LBJ’s. The country has come far enough on marriage equality to make a stand on principle affordable. African-American equality was unique in its moral importance and political voltage, so Johnson’s gesture continues to stand as unique, and, we must hope, always will.

Still, Obama has claimed for himself a place in gay history not unlike LBJ’s place in black history. He is the first U.S. president to put the federal government unequivocally on the side of full equality for gay Americans, and he will almost surely be the last Democratic president to have opposed full equality. For his party, for its liberal base, and possibly for the country, there is no going back. He has crossed the bridge from Selma.