The Upshot

A March Toward Acceptance When Civil Rights Is the Topic

By DAVID LEONHARDT and ALICIA PARLAPIANO

New York Times

The legalization of same-sex marriage is a potent example of a dominant theme in American history: Over time, civil rights expand, and discrimination ebbs.

Discrimination doesn’t end, as a recent mass shooting and some police interactions with the public have made clear. There have even been long periods, like the aftermath of Reconstruction, when rights have contracted. But the exceptions don’t disprove the rule. On basic issues — who can vote, who can work, who can serve in elected office, who can marry — the country tends to move in one broad direction.

As a result, it’s fair to divide the major issues in American political life into two broad categories. In one category are the rights-based issues in which the future can be safely predicted. In the other category — which includes abortion, gun control and climate change — there is far less clarity about the direction of public opinion.

The success of the marriage-equality movement happened with stunning speed. As recently as 1996, only 27 percent of Americans said they supported same-sex marriage. The rapid change since then was by no means inevitable, any more than the passage of the Civil Right Acts in 1964 was inevitable. Success depended on the skill and commitment of the advocates pushing the issue.

Yet there is ample reason to believe that same-sex marriage would have eventually become the law of the land, even if it did not happen last week.

The pattern on gay rights resembles that of people’s views toward racial, gender and religious discrimination. It was once widely accepted that the Irish and Jews should not hold certain jobs; that women should not vote; that Roman Catholics, Mormons, African-Americans and women were not fit for the presidency; that blacks should not socialize with, or marry, whites.

In each case, the groups in question and their allies argued for equal treatment, and eventually both the public and the law came to agree that the status quo violated American ideals. And public opinion and legal changes fed on each other: For all of its claims of scholarly remove, the Supreme Court is indeed influenced by public opinion, academic research makes clear.

In recent remarks about the racism that continues to afflict the country, President Barack Obama alluded to this larger pattern. “I always tell people, young people, in particular, do not say that nothing has changed when it comes to race in America, unless you’ve lived through being a black man in the 1950s or ’60s or ’70s,” Obama said on Marc Maron’s podcast. “It is incontrovertible that race relations have improved significantly during my lifetime and yours.”

The second category of major issues is different. In it, both sides in the debate are often able to make a rights-based argument.

People who favor abortion rights can point to a woman’s right to control her body; people who oppose abortion can point to a fetus’s right to live. People who favor gun rights can point to a gun owner’s right to bear arms; people who favor gun restrictions can point to Americans’ right not to die or be injured by gun violence. The death penalty debate also has fainter echoes of a rights-based argument, on both sides. And no matter how important you may believe action on climate change to be, the argument does not start with self-evident truths about freedom.

It’s true that opponents of same-sex marriage have tried to make rights-based arguments — to say that they are harmed by others’ marriages, just as opponents of interracial marriage did in decades past. But these arguments lacked any evidence that one couple’s marriage was damaged by another’s.

On abortion, by contrast, each side can ground its argument in civil rights. Either the government must deny a woman the ability to control her body or it must deny a fetus life. Yes, the two sides in the debate each believe that one of these denials utterly overwhelms the other. It’s possible one of the two arguments will ultimately prevail. But most Americans have long seen an unavoidable tension between a mother’s rights and a fetus’s.

If you doubt this distinction between the categories, consider the very different paths that public opinion takes on the two sets of issues. On more straightforward civil rights issues, opinion almost seems to follow the laws of physics: A body in motion tends to stay in motion. Once opinions start to move, they continue doing so.

In the second category, opinions often ebb and flow. Opinion can indeed change radically over time (as it did with, say, Medicare, which was once a hotly debated program that many saw as akin to socialism). But the fact that views start to shift one way doesn’t guarantee that they will continue moving in the same direction.

That’s why the second set of issues defies the confident predictions that come with the first. It’s reasonable to forecast that civil rights will continue to expand and discrimination will continue to ebb, albeit unevenly, in the decades ahead. Disabled Americans, to take one example, will probably face less discrimination and fewer hardships in 2055 than in 2015, just as they face less in 2015 than they did in 1975. On abortion and gun control, the future is far murkier. Perhaps one side will emerge with a strategy that breaks the current logjam; perhaps not.

Two issues that seem to fall somewhere in between — and that have recently been framed with some success as civil rights issues — are marijuana and criminal justice.

In some ways, marijuana legalization looks like a civil rights issue: the freedom to behave as a person wants, so long as it does not harm others. This argument no doubt explains the sharp recent rise in support for legalization.

But the history of alcohol and tobacco offers some reason for pause about what happens next. On public-health matters, individual rights don’t expand as reliably as they do in some other realms. There are too many potential big downsides. The drinking age is higher now than it once was, and tobacco use has become far more restricted. It’s possible marijuana will be legal nationwide in a few decades, but it hardly seems assured.

On criminal justice, similarly, there are reasons to wonder if future generations will look back and wonder what today’s Americans were thinking: How could they lock up 2 million people? At the same time, many of those 2 million committed serious crimes, infringing on the rights of others. That’s why advocates for less incarceration have focused on crimes, like drug possession, that do not seem to harm others — and perhaps why support for sentencing changes has been growing on both the political right and left.

Still, it’s hard to know exactly what the future of criminal justice will look like. Public opinion has oscillated on it over the years, with the movements seeming to go in the opposite direction from the crime rate. Here’s the one prediction that may be safe to make: The advocates for changing the current situation will succeed only to the extent that they are able to turn their argument into a civil rights argument.

© 2015 The New York Times Company