The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress,1989

Abstract

The U.S. Supreme Court’s recent application of employment protections to gays and lesbians in Bostock v. Clayton County highlights the striking absence of policy produced by the U.S. Congress despite two decades of increased public support for gay rights. With the notable exceptions of allowing gays and lesbians to serve in the military, and passing hate crimes legislation, every other federal policy advancing gay rights over the last three decades has been the product of a Supreme Court ruling or Executive Order. To better understand the reasons for this inaction, we examine the changing preferences of members of Congress on LGBTQ (lesbian, gay, bisexual, transgender, and queer) issues. Examining scores from the Human Rights Campaign from 1989 to 2019, we find a striking polarization by the parties on LGBTQ issues, as Democrats have become much more supportive and Republicans even more opposed to gay rights. This change has been driven not by gerrymandering, mass opinion polarization, or elite backlash, but among Republicans by a mix of both conversion and replacement, and among Democrats primarily of replacement of more moderate members. The result is a striking lack of collective representation that leaves members of the LGBTQ community at risk to the whims of presidents and jurists.

Keywords

LGBT politics polarization collective representation conversion replacement

Introduction

The American public’s dramatic shift to support policies advancing LGBTQ (lesbian, gay, bisexual, transgender, and queer) rights is remarkable.¹ Many of the most historically controversial issues (e.g., gay marriage, allowing gays and lesbians to serve in the military) today garner the support of a supermajority. This increased public acceptance has occurred among virtually every subconstituency, including many of those who have traditionally harbored the most conservative and hostile positions on these issues (e.g., Flores 2014).

This opinion change has had important policy consequences. Prior to 2012, gay rights advocates’ success at the state and local levels was largely limited to opposing state restrictions on gay rights. Since then, however, LGBTQ rights have advanced through initiatives, state legislatures, and state court rulings. These changes are broadly consistent with research on state policymaking that shows while state-level policy often lags opinion, it is typically responsive to, if not always congruent with, public opinion on LGBTQ issues (Lax and Phillips 2012).

Given this strong public support, it is surprising that changes in public opinion have not generally been reflected by changes in federal policy (Krimmel, Lax, and Phillips 2016). This disjuncture between federal policy and public opinion reflects a significant breakdown in collective representation—the extent to which the political system as a whole produces policy consistent with the people’s preferences (Pitkin 1967). While there are many explanations for the lack of federal policy, in this paper we seek to describe and examine a necessary condition for the production of policy: support among members of Congress on issues of LGBTQ (e.g., Smith 2007).²

The broad changes seen across issues and states stand in stark relief to the striking absence of policy produced by the U.S. Congress (but see Mayo-Adam 2017). They also differ from other prominent social movements (e.g., the Civil Rights Movement) in which federal change frequently preceded and helped force state change (Newman 2004). Indeed, with the notable exception of allowing gays to openly serve in the military and the passage of hate crimes legislation, every other federal policy advancing LGBTQ issues over the last two decades, from legalizing “homosexual conduct” and gay marriage, to extending employment protections, has been the product of a Supreme Court ruling or Executive Order. The absence of legislation leaves the LGBTQ community vulnerable both because those living in conservative states do not enjoy basic protections and because absent federal law, future courts or presidents can overturn those hard-won gains.

We examine the collective representation of the LGBTQ community to evaluate prominent explanations for why the American system fails to produce policies consistent with the public’s preferences (Pitkin 1967).³ To do so, we create and examine a comprehensive data set of legislator preferences on LGBTQ issues between the 101st (1989) and the 115th (2018) Congress using interest group ratings from the Human Rights Campaign (HRC). We find that summary measures of legislator preference conceal dramatic polarization between the parties on LGBTQ issues. Neither changes in party strength, gerrymandering, mass opinion, nor elite backlash effectively explain the patterns we observe. Instead, these changing preferences are more consistent with group incorporation and reflect different processes across the parties (e.g., Karol 2009). For Democrats, increased support for gay rights primarily results from member replacement, while for Republicans increased opposition to gay rights comes both from conversion and replacement.

Opinion Change without Policy Change

Public support of LGBTQ people has increased dramatically over the last three decades (e.g., Flores 2014). In 2004, for example, only 31 percent of Americans supported same-sex marriage, by 2014 a majority did (Flores 2015). Trends in thermometer ratings, which indicate how warmly or coolly people feel toward various groups, show that “gay men and lesbians” have had the greatest increase in ratings of any group (Garretson 2014). In the 1980s, the average thermometer rating of gays and lesbians remained at or below 30; by 2012, the average rating passed into the warm threshold (51+) for the first time (Fetner 2016). A similar phenomenon has occurred across a broad range of LGBTQ issues.⁴

Dramatic public opinion changes like those seen on LGBTQ issues are rare. The theory of generational replacement is commonly offered to explain attitude change; however, it tends to occur slowly as younger people replace older ones in society (Carmines and Stimson 1981). Instead, the rapid rise in support for LGBTQ issues is more consistent with conversion, the idea that people are changing their views. Trends in the American National Election Studies (ANES) feeling thermometer show that, on average, the youngest cohorts have the most positive feelings toward the LGBTQ community, but that all age groups are growing more positive over time at a similar rate (Fetner 2016). Scholars offer a series of explanations to explain such attitude change.

One explanation is that the increased number of people who came out to their friends and family led to a dramatic increase in the number of people reporting that they know someone who is gay (e.g., Garretson 2015, 2018). While the political importance of coming out was recognized by leaders like Harvey Milk in the late 1970s, the 20 percent of people who reported knowing someone who was gay in 1993 had more than doubled to nearly half of respondents by 2004 (Rosenstiel 2007). This process is important because studies show that knowing someone who is gay, lesbian, or bisexual leads to more positive feelings toward sexual minorities (Gentry 1987; Harrison and Michelson 2019; Herek and Glunt 1993; Lance 1987) and greater support for gay rights (Barth, Overby, and Huffmon 2009; Barth and Parry 2009).

Social and political shifts also contribute to improved public attitudes on LGBTQ issues. Exposure to positive media portrayals increases acceptance of LGBTQ people (Garretson 2018). Public policies such as those established by court rulings in favor of LGBTQ rights also appear to increase acceptance among the indifferent (Barclay and Flores 2015; Flores 2014; Kreitzer, Hamilton, and Tolbert 2014).

To the extent that these various factors combine to make LGBTQ issues more salient, they may also help change attitudes indirectly by causing issues of equality to become more widely discussed. The theory of Dissonant Identity Priming holds that individuals may be more likely to accept a positive view of gays and lesbians if they are exposed to pro-LGBTQ messages from someone with whom they identify with, such as a sports figure (Harrison and Michelson 2017). In this way, support for LGBTQ issues may “spill over” from one’s shared social identity to affect one’s opinion.

While opinion change has been rapid, policy advances have been more idiosyncratic. In 1961, Illinois became the first state to decriminalize homosexuality by repealing their anti-sodomy law. Over time, most states followed and in 2003 the Supreme Court struck down the remaining fourteen state prohibitions of sodomy in Lawrence v. Texas. In 1982, Wisconsin became the first state to outlaw discrimination in employment and housing based on sexual orientation. Since then, twenty-one states and DC have joined Wisconsin in codifying protections for LGBTQ people in law. In 2004, Massachusetts became the first state to legalize same-sex marriage. By 2015, thirty-seven states had legalized same-sex marriage, three by popular vote, eight by state legislatures, and twenty-six by a Court decision. In Obergefell v. Hodges (2015), the Supreme Court ruled same-sex couples have the right to marry, effectively legalizing same-sex marriage in all fifty states.

Despite these advances, LGBTQ rights continue to face significant opposition. Before Obergefell, thirteen states had explicit bans on same-sex marriage. Today, eleven states allow discrimination against gay couples in adoption and four states allow doctors to refuse service based on sexual orientation. In 2018, the Supreme Court allowed a business to refuse service based on sexual orientation in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Moreover, states controlled by Republicans often employ preemption to prevent cities and counties from passing laws advancing LGBTQ issues (Riverstone-Newell 2017; Taylor, Haider-Markel, and Lewis 2018). Much of the current conflict focuses on implementing very broad religious exemptions to gay rights and limiting the rights of transgender people.

The disconnect between public opinion and government action is not entirely surprising. Research shows that at the state level, while LGBTQ policy typically moves in the same direction that constituents prefer, it only provides the majority their preferred policy about half of the time (Lax and Phillips 2012). Furthermore, when policy is non-congruent, it tends to be more conservative than voters prefer. Even clear supermajority support for pro-LGBTQ policy is seldom sufficient for adoption by the state or federal governments (Krimmel, Lax, and Phillips 2016; Lax and Phillips 2009).

LGBTQ issues are not unique in this respect. Over the last three decades, public opinion majorities have shifted on the issue of marijuana legalization, for example, as in 1990 a mere 16 percent reported support for legalizing cannabis; this was up to 67 percent by 2019 (Daniller 2019). While the Obama administration issued the Cole Memorandum in 2013 that deprioritized the enforcement of marijuana-related offenses by the Department of Justice in states where marijuana was legalized, it was quickly rescinded by Attorney General Sessions when the Trump administration took office.

One explanation for the lack of policy responsiveness is that elites have disproportionate impact on policy, while the average citizen does not (Gilens and Page 2014). All opinions are not equally consequential for legislators. Opposition to LGBTQ issues is led by anti-gay elites—typically, conservative Christians—who work to oppose the political incorporation of LGBTQ persons in society (Bishin et al. 2020). These elites mobilize a large intense subconstituency of conservative white Christians who staunchly oppose gay rights and vote in large part on the basis of that issue. Similarly, Democrats internal party disagreements on issues like Defense of Marriage Act (DOMA) and gays in the military in the 1990s are more nuanced. In part, the later incorporation of LGBTQ groups into the Party and some Democrats willingness to buck public opinion opposing LGBTQ rights to vote in line with the preferences of the LGBTQ subconstituency explains opposition to bills like DOMA (Bishin 2000, 2009; Bishin and Smith 2013). Alternatively, some attribute the lack of legislator support for gay rights during this early period to the Democrats capture of the LGBTQ community (Smith 2007).

Over time, the parties have aligned to take opposing positions such that Republicans uniformly oppose LGBTQ rights whereas Democrats increasingly support them (Karol 2009, 2012). Legislators are sensitive to the size of the LGBTQ community in their district but less so to public opinion in general (Bishin and Smith 2013). David Karol (2012) finds conversion (rather than replacement) plays a key role in the parties’ repositioning on LGBTQ issues, but only in one party. As LGBTQ activists became more prominent in the Democratic Party, Democratic legislators took new stands, creating a partisan divide on the issue.

Studies of the international gay rights movement find that domestic explanations provide only a partial explanation for the advancement of gay rights. International advances on LGBTQ issues were both vertical, that is, driven by domestic factors, and horizontal, as political parties are socialized across borders (Ayoub 2016). This occurs when policy makers, social movement leaders, and even judges build on and point to international precedents.

Trends in Legislative Behavior

Public opinion has become more supportive of policies benefiting the LGB community over the past three decades. On many of these issues, opinion has shifted such that a majority now support them. To the extent that such issues are incorporated into a voter’s decision calculus, opposing such politics may create electoral vulnerabilities for legislators.

To what extent does Congress produce policy consistent with these changes? In the aggregate, we have seen very little gay rights policy pass Congress over the last three decades. Given the Framers’ desire to make policy change difficult, these outcomes are perhaps unsurprising. Advances in gay rights at the federal level come almost exclusively from the Supreme Court. Excepting the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 and the ending of Don’t Ask Don’t Tell in 2010, Congress has been unable or unwilling to pass legislation advancing gay rights. Despite passing the House, and being favored by a majority of citizens in every state, only the small portion of the Equality Act pertaining to employment discrimination would become law and only through a Supreme Court ruling (Lopez 2019)!

Measuring Legislators’ Preferences on LGBTQ Policy

Congress’ inability or unwillingness to pass majority-favored legislation raises an important question: to what extent do legislators reflect citizens’ changing preferences? Answering this question is more challenging than it might first appear. Very few issues of gay rights have repeatedly come before Congress over the last three decades. The reason for this has partly to do with the power of negative agenda control, the ability of party leaders to prevent issues from receiving a vote (Cox and McCubbins [1993] 2004). Moreover, on some issues, even staunch advocates may be reluctant to expend time and energy on bills that have little chance of passing. In 2009, for example, outspoken gay rights advocate Barney Frank (MA-4) was unwilling to support a bill legalizing gay marriage because “it is not anything that is achievable in the near term” (Melloy 2009, par. 7).

The small number of LGBTQ issues introduced in Congress also makes it very difficult to assess support and opposition to gay rights using actions like roll call votes or bill sponsorships, and opinion polls of members are very rare. Furthermore, some of the best indicators of preference are bills that are introduced and co-sponsored but do not receive a vote. But, failure to co-sponsor does not necessarily mean that one opposes the bill. And while it can be difficult to assess member preferences at any specific time, it is even more difficult to do so over time, as the few issues that recur are seldom offered in an identical form. The challenge is that legislators may add or drop support because of even small changes, which may alter how their overall support for gay rights is assessed.

Perhaps the clearest example is seen with the Employment Non-Discrimination Act (ENDA), which was first introduced in 1974 as a proposal to add sexual orientation as a protected category to the 1964 Civil Rights Act. Numerous versions of the bill were introduced over the years but often with substantive changes. By the 1990s, for instance, the bill focused on combating employment discrimination. In 2007, sponsors debated adding and ultimately stripped gender identity protections from the bill to broaden its appeal, a change that led LGBTQ advocacy groups to disagree about whether they supported the narrower bill (Schindler 2007). By 2015, the bill was again expanded to include, among other provisions, housing protections. While this bill always represented a significant advance for the LGB (and sometimes T) community, the nature of that advance varied over time. Changes were often made to alter the support coalitions, thus, stated support at one time may present a misleading picture of one’s support at another time.

Given the difficulty measuring legislative support for gay rights, and our desire to examine support for LGBTQ policy over time, we examine HRC ratings from the 101st through the 115th congresses. Our data include all years for which the measure is available (1989–2018) and reflect an especially important period because it covers both the early stages of the conflict over LGBTQ issues and the rapid public opinion change seen in the 2000s.

The HRC is the largest and most prominent LGBTQ interest group in the United States. Like most interest group ratings, HRC scores range from 0, indicating complete opposition to LGBTQ issues, to 100, indicating complete support. HRC ratings provide an indication of legislator support for gay rights as understood at the time the Congress convened. Unlike some interest group ratings, HRC scores do not rely solely on a legislator’s position on roll call votes to assess support for gay rights. This is important because the set of issues that make it to the floor for a vote reflects merely a tiny subset of the issues that affect the group. Consequently, by including actions like a member’s willingness to sign a Dear Colleague letter, or to agree to co-sponsor legislation, HRC scores are less constrained by party leaders’ control over the issue agenda than are ratings issued by many other prominent interest groups.⁵

Like all ratings, HRC scores have important limitations (e.g., Bishin 2003). They reflect legislator support on issues the HRC deems important and are, like other interest group ratings, influenced by their political agenda. Sometimes the HRC’s positions are themselves controversial within the LGBTQ community. For example, the HRC initially opposed the marriage equality litigation that resulted in the Obergefell decision (Bishin et al. 2020). Moreover, HRC scores are limited, particularly in the early years of their estimation by the small number of gay rights issues raised in Congress.

Perhaps the most serious theoretical limitation is that the HRC’s political agenda may have changed over time, thereby raising questions about the comparability of the measure. As the example of marriage equality shows, the items used to construct the scores have changed somewhat as different issues have become relevant over time. If, however, what the HRC counts as support for gay rights during this period varies idiosyncratically, scores would be unreliable and conceal potentially significant variation in member support for gay rights.

We can partly address this concern by examining whether HRC scores describe a consistent concept over time. To do so, we calculate Cronbach’s alpha across HRC scores for congresses (and legislators) in the data. Items that tap the same concept are expected to co-vary. The scale reliability across years is about .996, a result which suggests that the measures tap the same underlying concept.⁶ Given this reliability, if the meaning of the scores changes over time, they likely do so in a consistent way. While we have no direct evidence the HRC changed positions on issues considered in Congress, the result would almost certainly have meant that the HRC made it more difficult to attain high scores over time given the politics surrounding gay rights in popular society. Consequently, to the extent the scores have changed, they likely provide an increasingly conservative estimate of support for LGBTQ policy. In sum, HRC scores provide the most comprehensive assessment of legislator and institutional support for LGBTQ rights available.

Support for Gay Rights in Congress, 1989–2018

We begin by describing the general trends in support for gay rights in Congress. Given the dramatic increase in public support for gay rights, our expectation is that support for gay rights in Congress should increase fairly dramatically. We might expect some lag, however, as past research on representation in the states depicts responsiveness (i.e., policy seems to move in the same direction as public preferences) without necessarily providing the public with the policy they prefer (Lax and Phillips 2012). We present scores by Congress rather than year to avoid possible confusion as each Congress meets during portions of three calendar years. Trends in HRC scores, both for Congress as a whole and by party, are seen in Figure 1.

Figure 1.

Support for gay rights in Congress, 1989–2018.

Figure 1 illustrates three important trends. Perhaps most striking is that in contrast to the public opinion data we saw in the previous section, aggregate support is essentially flat over the last thirty years. Second, we see clear evidence of partisan polarization. That is, Democrats have become more supportive of gay rights by about sixteen points, while Republicans have become about thirty points less supportive. Moreover, as the scores are bound by 0 and 100, ceiling and floor effects may artificially limit the extent to which polarization is visible.⁷ Finally, we see little shift in legislative support for gay rights coincident with important policy change on the issue as HRC scores seldom change much after such salient events occur. That is, salient policy events do not seem to influence legislators’ revealed preferences on gay rights.

Explanations for Polarization on Gay Rights

Given that policy change is tied to the preferences of the pivotal members of a legislature, the lack of bill passage is perhaps unsurprising given the lack of change in the average preference for policy (e.g., Krehbiel 1998). Policy advances are less likely to occur if polarization reflects a world in which fewer legislators support even modest compromise on gay rights. While the absence of policy is perhaps unsurprising given the trends we document above, the data on legislators’ support for gay rights thus invite the question: what explains the polarization in members’ support for gay rights that follows the 104th Congress?

To answer this question, it is important to understand the politics of the period. In the early congresses during this period, the 101st and 102nd congresses (1989–1992), support for gay rights was moderately high. In part, this seems likely to be a product of the fact that few major and controversial pieces of legislation received consideration possibly because of bipartisan opposition to gay rights and the low likelihood that any major bills would be signed by Republican President George H. W. Bush (e.g., Smith 2007).

The early 1990s saw the beginning of a period in which elected officials of both parties, although to differing degrees, opposed gay rights. Perhaps the most visible questions of gay rights during this early period were whether or not gays could serve in the military—an issue Bill Clinton had run on in 1992—and later, whether states were required to recognize gay marriages conducted in other states, a policy known as DOMA.

These policies were significant because in each case, regressive policy on gay rights was passed at least partly due to support of congressional Democrats. In the case of allowing gays to serve in the military, Bill Clinton’s campaign promise to issue an executive order allowing gays to serve was undercut by resistance from powerful Democrats, including Senate Armed Services Committee Chairman Sam Nunn (D-GA), who promised to not only repeal any executive order allowing military service but also pass legislation preventing gays and lesbians from serving, an act that would take the decision out of the president’s hands. A compromise known as Don’t Ask, Don’t Tell allowed gays and lesbians to serve only if they concealed their sexual identity. Similarly, DOMA was passed in Congress with support of a majority of Democrats, and all but one Republican, and was signed by Democratic President Bill Clinton. Consequently, while the era starts with opposition to gay rights on highly visible issues by members of both parties, in the period following DOMA’s passage congressional Democrats began to liberalize.

Given the trends documented in Figure 1, how can we understand the lack of change in congressional preferences on issues of gay rights over this thirty-year period? Six explanations seem especially plausible. We list each of these and their implications in Table 1.

Table 1.

Explanations for Polarization on Gay Rights.

Explanation	Implication
Party strength	Increased number of seats in Congress leads to more extreme policy demands leading to increased polarization
Opinion polarization	Mass opinion polarization by party should be positively associated with elite polarization on gay rights
Gerrymandering	Democrats become more liberal, Republicans more conservative after new maps implemented
Elite backlash	Sharp shifts in opposition to gay rights by Republicans and support for gay rights by Democrats following salient events
Issue evolution	Party position change on gay rights is driven by the replacement of older members with newer ones
Group incorporation	Party position change on gay rights is driven by the replacement of older members with newer ones and conversion of positions help by continuing members

Perhaps the most obvious explanation is that changes in HRC scores are caused by shifts in party strength. As one party holds a greater share of seats, they may offer more extreme policy, which leads to greater differences, and less overlap, between the two parties. A second explanation is mass opinion polarization—that legislators simply reflect the diverging preferences of voters. A third explanation for increased polarization is that gerrymandering leads to the election of more extreme members of Congress. Elite backlash—that elites like those party leaders elected to Congress—react by becoming more extreme when policies they oppose are passed or made salient. Finally, two theories of position change explain the parties’ evolutions on issues more broadly. Issue evolution holds that parties change positions on issues only through replacement, when legislators are replaced by those who better reflect the groups in society (Carmines and Stimson 1981). In contrast, group incorporation argues that parties change positions on issues as social groups become prominent and important to their coalitions and as a consequence change occurs through both replacement and conversion over time (Karol 2009). We examine each of these in turn.

Party Strength

Polarization may reflect the fact that congressional preferences are a function of party strength in Congress. On one hand, relatively little turnover in Congress may lead to only minor changes in Congressional support for gay rights albeit with partisans holding more extreme preferences. While it seems self-evident that as one party captures more seats, congressional support for gay rights will move in that party’s preferred direction. Less obvious is that it may also lead to increased polarization. As one party gains a larger number of seats, we might expect them to offer more extreme policy and for the minority to oppose those policies leading to increased polarization between the parties. We can examine this explanation using ordinary least squares (OLS) regression of Polarization (the difference between mean Democratic and Republican HRC scores) on the percentage of seats held by the Democratic Party. The results of this analysis for each chamber are seen in Table 2.

Table 2.

OLS Regression of HRC Polarization on Democratic Seat Share.

	House polarization	Senate polarization
Percent Democrats	–0.97	–1.03
	(0.60)	(0.61)
Constant	115.51**	112.23**
	(30.45)	(31.05)
R ²	.17	.18
n	15	15

Standard errors in parentheses. OLS = ordinary least squares; HRC = Human Rights Campaign.

**p < .01.

The results in columns 1 and 2 of Table 2 show that while Democratic seat share is negatively associated with Polarization, they are not statistically significant for either the House (p < .13) or the Senate (p < .116).⁸ Indeed, the weakness of this relationship is strikingly seen in Figure 2, which depicts polarization and Democratic seat share in the House over time.

Figure 2.

Proportion of democratic seats and house polarization, 1989–2018.

Two key results emerge in Figure 2. First, we see that variation in the makeup of the chamber, as indicated by the dashed line, is constrained within about fifteen points, as Democrats range from over 60 percent of the 102nd Congress (1991–1992) to less than 45 percent in the 114th (2015–2016). Second, polarization between the parties increases consistently and dramatically throughout this period, and entirely unrelated to the proportion of seats held by Democrats. Taken in combination, we see no evidence that party strength explains polarization.

Mass Opinion Polarization

A central question in the study of representation examines the extent to which citizens control their elected officials. It is therefore reasonable that changes in public opinion might explain elite polarization. Scholars debate whether citizens adopt increasingly extreme issue positions that fall along party lines (e.g., Lelkes 2018). While some contend that partisan policy divergence among the masses is driven by elites, it is also plausible that legislators take cues from their co-partisan constituents. We can test this opinion polarization hypothesis by comparing polarization among legislators with polarization among the masses by political party. If elite polarization is driven by constituents, then legislator polarization on gay rights should be positively associated with polarization by party of constituent opinion on gay rights.

We test this hypothesis using public opinion data on three aspects of LGBTQ policy collected over a sufficiently long period to allow comparison with HRC scores. We employ OLS regression of polarization in House members’ HRC scores on mass opinion polarization on the issues of gay marriage, employment non-discrimination, and thermometer ratings.⁹ We measure legislator polarization by subtracting the average HRC score for Republicans from the average score for Democrats for each House. Similarly, we measure mass opinion polarization by estimating the percent supporting gay marriage, employment non-discrimination, and the average rating thermometer ratings for both Republicans and Democrats for each even numbered year corresponding to each Congress for which they are available.¹⁰ For each year, we then subtract the scores for Republicans from the scores for Democrats. If mass polarization explains legislator polarization on gay rights, then these indicators of mass polarization should be strongly positively associated with the measure of legislator polarization in HRC scores. The results are seen in Table 3.

Table 3.

Public Opinion and Legislator Polarization on Gay Rights in the U.S. House.

	Thermometer	Marriage	Employment
Constituent polarization	1.87	0.49	0.65
	(1.29)	(1.73)	(1.34)
Constant	43.41*	64.06	62.09***
	(16.46)	(40.05)	(7.15)
R ²	.21	.02	.02
n	10	6	13

p < .05. ***p < .001.

The results in Table 3 depict little evidence for the mass opinion polarization hypothesis. On none of the three measures of public opinion polarization do we find a significant relationship with legislator polarization. While the number of congresses for which we have data is in some cases limited on topics like gay marriage, the relationship between mass and elite polarization is never statistically significant.¹¹

In one important respect, these results are unsurprising. After all, public attitudes on LGBTQ issues have become more supportive over time among virtually all groups, including Republicans. Consequently, in contrast to the massive divergence we see between parties, public opinion polarization is quite low as both Democrats and Republicans have become increasingly supportive on LGBTQ issues over time (e.g., Flores and Sherrill 2020).

Does Gerrymandering Cause Polarization on Gay Rights?

Perhaps the explanation most widely publicized by pundits but scorned by political scientists is the possibility that gerrymandering drives congressional polarization on LGBTQ issues through the election of electorally safe members who are free to take extremist views (e.g., Ingraham 2018; but see McCarty, Poole, and Rosenthal 2009).

We examine this possibility by comparing behavior within each party across chambers and over time. As the Senate is not subject to redistricting, it therefore provides a useful comparison in which redistricting cannot drive polarization.¹² We begin by examining whether senators differ significantly from members of the House in their support for gay rights. Next, we examine whether support for gay rights systematically increases for Democrats and decreases for Republicans immediately after new maps have gone into effect. While the effects of these maps may vary—different states may gerrymander in favor of different parties—we nonetheless should see large divergences between chambers with the House becoming more extreme than the Senate, and these differences should be largest immediately following the implementation of new maps.

To examine these questions, we subtract average HRC scores for House Democrats from Senate Democrats and scores of House Republicans from Senate Republicans, and plot these changes over time. If gerrymandering causes polarization, these differences should be positive and large for Democrats, and negative and large for Republicans. Moreover, for both parties, these differences should spike immediately following the implementation of new district maps. We include vertical lines indicating the period between the elections during which new district maps are implemented. These results are seen in Figure 3.

Figure 3.

Differences in HRC scores within parties across chambers, 1989–2018.

The results in Figure 3 evince several findings. First, contrary to the diverging lines we would expect to see if gerrymandering were driving polarization, the pattern of differences across chambers is symmetric across the parties. For Democrats, the differences are incorrectly signed—indicating that House Democrats are less extreme than Democrats in the Senate—and quite small, exceeding five points in only two of fifteen congresses. For Republicans, the gap is somewhat larger, though still substantively small.¹³

Second, in contrast to the symmetric pattern seen across parties, the largely negative differences observed in Figure 3 also indicate an important asymmetry that contradicts the expectations of the gerrymandering thesis. Specifically, the negative scores indicate both that House Democrats are less supportive of gay rights than are Senate Democrats, and that House Republicans are less supportive than Senate Republicans. The gerrymandering thesis, however, suggests that House Democrats should be more supportive if redistricting drives increased polarization.

Third, and finally, the differences in support for gay rights across chambers before versus after new maps are implemented are also inconsistent with gerrymandering as an explanation for polarization. Specifically, scores for Democrats should increase and for Republicans decrease immediately following the implementation of new maps based on the most recent gerrymanders. Instead, to the extent that we see much movement at all, the parties move in the same direction following the implementation of new maps—which requires at least one House party to moderate their position rather than become more extreme.

The implementation of new maps following the Census also allows us to statistically assess the uncertainty in our results. The implementation of new districting plans effectively provides six tests of the gerrymandering hypothesis, one each for Democrats and Republicans around each of the three rounds of redistricting that occur during the period we study. Statistically, with only three correct predictions in six trials, the results we observe are indistinguishable from chance (p = .656).¹⁴ In sum, these findings are inconsistent with gerrymandering as a source of polarization.

Does “Elite Backlash” Cause Polarization on Gay Rights?

An alternative possibility is that increased polarization in Congress during this period might be driven by elites’ reaction to policy conflicts. That is, perhaps a form of “elite backlash” in response to state or national policy cues is occurring. Supporters and opponents of gay rights may be increasingly energized to support or oppose gay rights following these salient policy conflicts. Research shows, for instance, that the Baehr ruling in Hawaii spurred a campaign to ban gay marriage in numerous state legislatures (Haider-Markel 2001). Similarly, supporters of pro-LGBTQ policies might be spurred by such challenges to demand even more policy.

We can examine this by comparing trends by party and chamber over time to see whether legislator support for or opposition to gay rights corresponds to these salient policy events. In particular, we plot support for gay rights in Congress relative to six salient and controversial policy events of the past three decades. These results, in which House members are indicated with a dashed line, are seen in Figure 4.

Figure 4.

HRC scores by party and chamber.

The results of Figure 4 provide little evidence that the parties’ positions on gay rights are influenced by these salient challenges to the status quo. Instead of sharp reactions reflected by large and abrupt shifts immediately following these events, we see a more gradual trend toward increased opposition by Republicans and support by Democrats.

Following the method employed in the previous section, we can assess the probability we should see a pattern, such as that shown in Figure 4, due to chance alone. Here, we see that the six salient events provide twelve cases in each chamber, for a total of twenty-four trials, twelve in which Democrats are expected to shift to more liberal positions following the salient event, and twelve in which Republicans should become more conservative. Counting successes as those in which the parties moved in the direction predicted by elite backlash we find that the parties moved in the predicted direction in fifteen of twenty-four cases, a result we would observe due to chance about 15.4 percent of the time.¹⁵ In sum, to the extent that these events seem to influence legislator behavior at all, it is much more likely that they compound gradually over time than lead to the abrupt shifts typically associated with backlash.

Sources of Change: Conversion or Replacement?

The explanations we have examined to this point do little to explain polarization on gay rights. Studies of legislator and party position change may provide insight. Generally, two views—reflecting very different theoretical mechanisms—emanate from the attempt to explain Americans changing positions on issues. The issue evolution thesis suggests that party positions change little over time because individuals do not change (or “convert”) their positions (e.g., Carmines and Stimson 1981). Instead, position change through member replacement best explains the parties’ positions. Issue evolution requires that preferences on an issue be deeply felt, that the parties and candidates take visibly different positions, and that “. . . the issue be long on the political agenda” (Carmines and Stimson 1981, 103), conditions that are not fully met on LGBTQ issues.

Others suggest that position change is much more nuanced and typically occurs through coalition group expansion, coalition group incorporation, or coalition maintenance (Karol 2009). The particular process through which parties and their elites take and change positions depends on the preferences of their allied coalition groups. In particular, group incorporation occurs when party leaders take positions designed to bring new groups into their coalition.

With respect to LGBTQ politics, group incorporation began as white Evangelicals and other conservative Christians began to coalesce with the Grand Old Party (GOP) in the 1970s (e.g., Bull and Gallagher 1996; Clendinen and Nagourney 1999; Fitzgerald 2017). As white religious conservatives strongly opposed pro-LGBTQ issues, this both limited the political choices of LGBTQ voters and gradually led to the cultivation of LGBTQ groups by the Democratic party in the early 1990s (e.g., Smith 2007). An important implication of coalition group incorporation is that, in contrast to other forms of position-taking or change, “. . . elite replacement may matter more . . .” (Karol 2009, 19). Specifically, we might expect to see evidence of both replacement and conversion because group incorporation tends to occur more gradually.

To examine these explanations, we calculate the change in support for gay rights that is due to replacement by party. Building on previous research and measures, we calculate the average HRC score for the group of legislators who are new to Congress and from that subtract the average score of those who leave across each consecutive Congress (e.g., Karol 2009, 2019; Rapoport and Stone 1994).¹⁶ Similarly, we estimate the change due to conversion by comparing the scores of those who remain in each Congress by subtracting each returning member’s HRC score from their score in the previous Congress. To get a sense of the overall effect of replacement over time, we calculate the cumulative effects over the entire thirty-year period we study. The results for replacement are seen in Figure 5.

Figure 5.

Cumulative effect of replacement by party, 1989–2018.

The results in Figure 5 show that the pattern in these changes differs dramatically by party. For Republicans, the effect of replacement has been a gradual increase in opposition to gay rights over time. While the change between any two congresses is generally small, the effect in aggregate has been more substantial—about a fifteen-point decrease in support for gay rights over time. For Democrats, support for gay rights initially increased between five and ten points but surged dramatically in the 112th Congress (2011–2012) ultimately leading to an increase of about twenty-two points through replacement.

What explains this dramatic replacement-driven change in Democrats support for gay rights? In part, it likely resulted from the Democrats massive sixty-three-seat House loss in 2010. This disproportionately left Democrats from their safest districts, which tend to have larger and more active LGBTQ communities (e.g., Bishin 2009).

Using the same method, specifically by subtracting scores of returning members from consecutive congresses, in Figure 6 we present the degree to which conversion explains changes in support for gay rights.

Figure 6.

Cumulative effect of conversion by party.

The results in Figure 6 suggest that the effects of conversion also differ by party. Republicans became about fourteen points more opposed to gay rights through individual position change. In contrast, large initial decreases in support by Democrats were driven almost entirely by individual members who changed their positions between the 101st and 104th congresses, but that entire decrease was offset by changes among continuing members over the rest of the period such that the cumulative effect was a two-point increase in support for gay rights due to conversion.¹⁷

The results to this point suggest that the source of position change is nuanced. For Democrats, replacement appears to have been the primary source of change. For Republicans, the source of change has been much more balanced between both conversion and replacement. Overall, these results appear much more consistent with the concept of group incorporation than with issue evolution.

The results also raise a broader question about the extent to which they are context dependent. Specifically, to the extent that the GOP started incorporating conservative Christians in the mid to late 1970s, the party has had more time to socialize and cultivate leaders who share those groups’ views. Democrats, in contrast, most seriously began incorporating LGB groups during the 1992 presidential campaign, some roughly fifteen years later. Consequently, these results are highly dependent on the period we examine. Our conclusions from Figure 6, for instance, would differ dramatically if we examined the period beginning in the 103rd Congress which corresponds to when the Democrats began actively seeking LGBTQ support. This raises the question: to what extent are these results driven by the times at which members served versus a broader tendency for members to change positions over time?

We examine this question by plotting average position change on gay rights by the number of congresses in which a legislator served from the beginning to the end of their tenure. These data remove position-taking from its historical context to an extent, by comparing legislators based on the number of congresses in which they served. Of course, while those who served in fifteen congresses are still context dependent, those serving in fewer congresses can reflect a wider range of contexts in which they served. Importantly, the measure is not cumulative in that the thirty-two members who served the entire period are only counted as having served in fifteen congresses (e.g., they are not included among those serving in fourteen or thirteen congresses).¹⁸ These results are seen in Figure 7.

Figure 7.

Issue conversion by total number of congresses served.

The results in Figure 7 present striking evidence of asymmetric polarization. While there is little evidence of conversion among Democrats who serve in a larger number of congresses, we see a marked increase in opposition toward gay rights among Republicans who serve in more than about eight congresses. While this turn toward extremism seems to accelerate among Republicans beginning around their eighth term, it is important to recognize that the number of Republican members of Congress serving so long is relatively small, in some cases reflecting just a handful of members for the largest number of congresses served.

Discussion and Conclusion

With the exception of modest hate crimes legislation and repealing the ban on gays in the military, dramatic increases in public support have been met with legislative silence. We study this lack of collective representation by examining legislators’ preferences on gay rights over the last thirty years. While these policies passed during the polarized era, they also occurred when Democrats held large majorities. Our analysis suggests that by making inter-party compromise more difficult, party polarization is at least partly responsible for the lack of federal LGBTQ policy (Flores and Sherrill 2020).

Interest group ratings showing little average change over time are misleading in two important respects. First, the issues that groups like the HRC use to measure support for LGBTQ issues have changed. Today, the HRC evaluates support based on issue positions that would have been too extreme to even make the agenda thirty years ago. In 1993, for example, Democratic senator Sam Nunn threatened to pass legislation banning gays from serving in the military, but still earned a sixty-seven on the HRC’s scorecard. Second, polarization has increased dramatically.

We should consider the potential implications of these changes in the agenda when evaluating the effects of polarization. Polarization may partly be a product of more extreme policy choices being offered to legislators. Polarization makes compromise difficult, even on issues that are very popular with the public, where the parties might otherwise find common ground. The key institutional actors essential to passing legislation, like the median member, the median member of the majority party, and the Senate filibuster pivots, are less likely to either be moderates or willing to compromise on issues important to key coalition groups.

The polarization we observe is not explained by party strength, mass opinion polarization, gerrymandering, or elite backlash. Instead, it appears to be the product of broader social change. For most Republicans, the organization and mobilization of conservative Christians beginning in the 1970s have made opposing LGBTQ issues essential to the GOP’s electoral success. It is not easy to compromise on an issue when doing so is seen by core supporters as an affront to God.

Republicans in Congress have united against gay rights through both the replacement of older more moderate members with more conservative ones and the changing stance (conversion) of some long serving members. The incorporation of LGBTQ groups in the early 1990s gradually led Democrats to support their positions. This has occurred largely through replacement, as those who left Congress were less supportive and those elected more recently are more supportive of gay rights than were earlier members.

The incorporation of white Evangelical Christian groups as a core subconstituency may also explain why unlike center–right parties in other countries, the GOP has become increasingly conservative on LGBTQ issues (e.g., Reynolds 2015, 2018). Despite increased public support, increased Republican Party opposition appears to be driven by white Evangelical Christians expanded power in the party.

These findings have important policy implications. Advances in gay rights depend heavily on the election of Democrats to Congress. The broad geographic distribution of a large intense subconstituency of white conservative Christians across states, combined with the concentration of Democratic voters in a small number of states, and its de facto supermajority requirements, makes passing gay rights through the U.S. Senate extremely difficult.

These trends depict a failure of collective representation—the American system fails to produce policy consistent with the people’s preferences. In some cases, violations of popular sovereignty may be of small practical consequence, particularly when ignoring the views of the majority advances other fundamental democratic values such as liberty or equality. Such violations, however, are compounded by the fact that LGBTQ issues frequently address questions of equality and liberty that are central to achieving full citizenship in the polity (e.g., Baer 1999). The lack of collective representation indicates an unwillingness to fully extend the rights of citizenship to LGBTQ people.

Massive increases in support for pro-LGBTQ issues across an extraordinarily broad range of topics have not led to the passage of federal law codifying the policies the public prefers. Instead, advances have been and will likely continue to be piecemeal. The absence of federal legislation puts LGBTQ people at risk. Existing policies won through court rulings or executive actions, are vulnerable to changes in the Court and executive. Perhaps most importantly, the absence of federal legislation also allows states, particularly those in which Republicans control the state legislature, to pass laws that either roll back or inhibit LGBTQ protections.

Supplemental Material

supplemental_material – Supplemental material for The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress, 1989–2019

Supplemental material, supplemental_material for The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress, 1989–2019 by Benjamin G. Bishin, Justin Freebourn and Paul Teten in Political Research Quarterly

Research Data

power_of_equality_replication_data – Research Data for The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress, 1989–2019

Research Data, power_of_equality_replication_data for The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress, 1989–2019 by Benjamin G. Bishin, Justin Freebourn and Paul Teten in Political Research Quarterly

Footnotes

Acknowledgements

We want to thank Charles Anthony Smith, Nicholas Weller, Dan Biggers, Maricruz Osorio, Melissa Michelson, the UCR Behavior Research Group, panel participants at the 2020 WPSA conference, and the three anonymous reviewers for their thoughtful comments and suggestions at various stages of the project. Thanks to Jessica Soriano for her research assistance. We are especially grateful to Hector Ranero at the Human Rights Campaign (HRC) for providing the early HRC scorecards that are not widely available.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Paul Teten

Supplemental Material

Supplemental materials for this article are available with the manuscript on the Political Research Quarterly (PRQ) website.

Notes

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Supplementary Material

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The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress,1989–2019

Abstract

Keywords

Introduction

Opinion Change without Policy Change

Trends in Legislative Behavior

Measuring Legislators’ Preferences on LGBTQ Policy

Support for Gay Rights in Congress, 1989–2018

Explanations for Polarization on Gay Rights

Party Strength

Mass Opinion Polarization

Does Gerrymandering Cause Polarization on Gay Rights?

Does “Elite Backlash” Cause Polarization on Gay Rights?

Sources of Change: Conversion or Replacement?

Discussion and Conclusion

Supplemental Material

supplemental_material – Supplemental material for The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress, 1989–2019

Research Data

power_of_equality_replication_data – Research Data for The Power of Equality? Polarization and Collective Mis-representation on Gay Rights in Congress, 1989–2019

Footnotes

Acknowledgements

Declaration of Conflicting Interests

Funding

ORCID iD

Supplemental Material

Notes

References

Supplementary Material