an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I have written severaltimes that there should be accommodation for religious conservatives who have conscientious objections to recognizing same-sex marriages. Religious exemptions from antidiscrimination laws are fairly costless, I’ve argued: as long as the religious dissenters are idiosyncratic outliers – and they generally will be, based on the scant number of accommodation claims we’ve seen – they’ll have no effect on gay people’s opportunities, and so they can harmlessly be left to live out their ideals in peace.
This has elicited the following objection from several friends: why do you want to accommodate bigots? The issue is now being squarely presented in New Hampshire, where opponents of religious accommodation are now ready to let same-sex marriage die in that state rather than, as one supporter has put it, “enshrine homophobia into the statutes of the New Hampshire Legislature.”
What is bigotry, anyway, and why is it a bad thing? The answer to this question will provide an answer to my skeptical friends, and also show why the legislators resisting religious accommodations in New Hampshire are sadly mistaken in their priorities.
Bigotry is wrong for two reasons. First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these.
The most obvious harm of bigotry is that people are hurt by it. Racism hurts racial minorities; sexism hurts women; homophobia hurts gay people. This harm occurs even if the people who are doing the discriminating are innocently deluded about what they are up to. “Honest to God when I was a kid, I believed that junk,” a white southerner, Hugh Wilson, explains in Jason Sokol’s recent book There Goes My Everything: White Southerners in the Age of Civil Rights, 1945-1975. “I was just like everybody else. Too many of us thought that, we knew individual blacks to be awful fine folks but we thought of blacks as a race as being sort of an Amos and Andy situation . . . . I began to get a lot older before I began to realize.” Perhaps, in his situation, Wilson can be excused for his ignorance. But excusable or not, his attitudes were profoundly destructive. Calling young Wilson a bigot is not to say that he’s a bad person who should be punished. It’s saying that he’s a deluded person who needs to be stopped from damaging others.
A second wrong of bigotry is the wrong of unjust perception. This is wrong even if it causes no harm at all. In a revealing little parable in her 1971 book, The Sovereignty of Good, Iris Murdoch elegantly refutes a then-fashionable school of moral philosophy that concerned itself only with the appropriateness of conduct, and which was entirely indifferent to people’s internal mental states.
A woman, M, feels hostile toward her daughter-in-law, D. M thinks that her son has married beneath him, and finds D unrefined, brusque, and rude. However, M always behaves beautifully toward D, and keeps her real opinion well concealed. And then suppose that the young couple emigrates, or D dies, so that whatever happens after that happens only in M’s mind. M now reflects on D, moved only by love for her son and a desire to be just. She concludes that D has many good qualities that M had failed to appreciate: she is not undignified but spontaneous, not vulgar but refreshingly simple, and so on. In the course of these reflections, Murdoch insists, M has been “active, she has been doing something, something which we approve of, something which is somehow worth doing in itself.”
The relevance here of Murdoch’s point can be made clearer, perhaps, by considering the odd case of Japanese anti-Semitism, which our host Jack Balkin describes in his book Cultural Software. “[A]nti-Semitic books and comments have appeared continually in Japan over the years, often repeating the most vicious claims of Nazi ideology and Eastern European anti-Semitism. Especially popular are beliefs about a secret worldwide Jewish financial and media conspiracy of enormous scope and power.” This nonsense functions for the Japanese as a way of accounting for and complaining about the power of the United States, which is taken to be controlled by the Jews. It does not, however, have much impact on anyone: “There are very few Jews in Japan today and thus very few opportunities for discrimination against them.” Bigotry is bigotry in Germany or in Japan, but it doesn’t matter for the same reasons in both places. In Japan, the complaint is entirely Murdochian: it is wrong to judge people unjustly. But why should the law care about this kind of harmless injustice?
There is, of course, a moral category of reprehensible ignorance, recognized as far back as Aquinas, who thought that error was culpable if it were either directly voluntary (because the agent deliberately avoided uncomfortable information) or if the agent were negligent about knowing what he ought to know. And one can be reprehensible in this way both for one’s private thoughts, in the Murdochian sense, and for one’s actions that ignorantly damage other people. I have no doubt that there are some homophobes who are culpable in just this way. I also think that there are others who are in the grip of a world view according to which homosexuality just can’t imaginably be morally acceptable, and who aren’t penetrable by any data to the contrary. I’m less inclined to blame them, particularly since, as the struggles of those within the “ex-gay movement” shows, there are some gay people among them.
Finally to return to the question of religious exemptions! The objection to religious exemptions can’t be that they’ll harm gay people, because they will only be invoked by a few people and won’t have much effect on gay people’s opportunities. It is rather that we shouldn’t accommodate bigotry. Now, I disagree with the views of religious conservatives who think homosexual conduct to be morally wrong. I think that these views are mistaken in just the way that M’s views had been in the early part of Murdoch’s story. I even think that some of those who hold those views are morally culpable. But does this mean that the law ought to be used to punish them?
Retribution is appropriate only if there is harm. Imagine you discover that someone has spent all afternoon sticking pins in dolls representing some people he doesn’t like (but has no just complaint against), hoping that this will cause their painful deaths. You’re entitled to decide that he’s a nasty person. But does he deserve punishment? For what, exactly?
If they can be rendered harmless, antigay bigots, even the morally reprehensible ones, will be just like the guy with the pins and the dolls. Nasty, maybe (though I know people on that side of the political divide who, I’m convinced, are honestly doing their best to pursue the right as it is given to them to see the right). But why is it important for the law to beat up on them?
More pertinently, why is beating up on them so important that it’s worth letting same-sex marriage die in New Hampshire altogether rather than give those people any accommodation?
There are people who are reprehensibly embracing self-aggrandizing fantasies that are hurting real people. But I’m sorry to say that they’re not the Christian conservatives. They are the people on my side, the gay rights side, who are willing to sacrifice the hopes of New Hampshire gays who want to marry, out of pure malice toward their political opponents.