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Gay rights issues present opportunities for both candidates

The Wall Street Journal suggests that yesterday’s California Supreme Court ruling to require recognition of same-sex marriages is a gift to McCain and the Republicans. However, the reality of the issue is more complicated.

Firstly, the conventional wisdom that gay marriage was a critical issue in allowing George W. Bush to win the 2004 election is dubious at best. Academic analyses suggest that, while turnout was higher in states with gay marriage ballot initiatives in 2004, George Bush performed no better in those states than he had in 2000.

Moreover, gay marriage questions may be particularly irrelevant given the nature of Barack Obama’s and John McCain’s constituencies. Support for gay marriage and other gay rights initiatives is strongly aged-based, with younger Americans being far more tolerant. But younger Americans are more inclined to support Obama to begin with, and older Americans less so; the demographics are running along parallel rather than perpendicular tracks. Meanwhile, while civil unions are strongly opposed by evangelical Protestants, they are supported by majorities of Catholics and strong majorities of mainline Protestants. Once again, this tends to match the existing fractures in each candidate’s base of support, as Obama does especially poorly with evangelicals but quite strongly with mainline Protestants, with Catholics somewhere in between. In a Clinton-McCain match-up, gay rights issues would have had far more potential to create a “wedge”, as Clinton does pick up strong support from older voters and some support from white evangelicals.

There as many as eight distinct policy questions related to gay marriage and gay rights that are likely to receive some play this year. I have summarized those questions below, including each candidate’s position on the issue. I have also included data from on public sentiment on each issue. Because some of these issues are fairly nuanced, and the responses depend heavily on question wording, I have provided an approximate range rather than a precise value for each question.

McCain’s reputation as a moderate on gay rights issues rests on his opposition to the Federal Marriage Amendment, which would have amended the U.S. Constitution to define marriage as being between one man and one woman. Obama also opposed the Federal Marriage Amendment, as do majorities of the public in most surveys.

Although neither candidate supports federal recognition of gay marriages (Obama’s opposition has at times been tentative), Obama supports civil unions whereas McCain does not. On this issue, Obama stands with the majority of the public, although this is one instance in which opposition tends to be voiced more strongly than the support.

McCain’s best opportunity to win support on the gay marriage issue is to shift the discourse from the relatively unpopular Federal Marriage Amendment to the Defense of Marriage Act, which (i) prevents states from having to recognize gay marriages in other states and (ii) prohibits the federal government from recognizing gay marriages conducted by the states. DOMA is likely to receive renewed attention in the wake of the California decision, as California law would permit gay couples to travel to California to get married there, whereas Massachusetts (the only other state to allow gay marriage) does not. While McCain voted for DOMA continues to support it, Obama has advocated its repeal.

Polling on DOMA is murky because it represents a fairly complicated legal question, making it hard to phrase a survey item appropriately. However, a May 2005 University of New Hampshire poll suggested that a 50-46 plurality opposed Massachusetts marriages from having to be recognized in all 50 states. Moreover, McCain’s position is probably easier to frame, as he can defend DOMA on federalism and judicial activism grounds. The attack ads — “Barack Obama has called for the repeal of the Defense of Marriage Act and would force [insert state here] to recognize gay marriages conducted in San Francisco” — are easy enough to envision.

However, Obama has a couple of ways that he can pivot on gay rights issues. The first way would be to portray the issue as a distraction and representative of the “old” kind of politics. While public opinion on gay rights issues is mixed, there is no indication that it is a particularly high priority for the public, particularly at a time of war and economic distress.

Moreover, there are three issues — unrelated to the marriage issue itself — where Obama’s position rather than McCain’s is much more in line with public sentiment. The first is gay service in the military and the Don’t Ask, Don’t Tell policy; depending on the phrasing of the question, anywhere from 60 percent to 80 percent of the public supports allowing gays to serve openly in the military. The second is the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination against employees on the basis of sexual orientation. A recent Gallup poll suggested at an overwhelming 89 percent majority of Americans support equal rights for gays and lesbians in the workplace, but McCain is on record as opposing ENDA. And the third issue is including sexual orientation as a category in federal hate crimes statutes — supported by 70-75 percent of the public but opposed by McCain.

An Obama counterargument would probably take the following form:

“At a time when our nation is at war and our economy is in recession, my opponent is trying to distract you with the same old politics of fear and division. And he supports policies that make it impossible for gay Americans to join the military at a time when we don’t have enough troops, and make it harder for them to find jobs when too many people are out of work.”

As on the gas tax issue, Obama’s counter-punches could prove to be more powerful than any jabs thrown by McCain.

Nate Silver founded and was the editor in chief of FiveThirtyEight.