Balkinization: Bracketing Bigotry

Bracketing Bigotry

Guest Blogger

For the symposium on Linda McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020).

Dale Carpenter

When it comes bigotry, Americans agree on three things: (1) bigotry is very bad; (2) they are not themselves bigots; and (3) some other people, mostly those who disagree with them, are bigots.

Proposition 1 is not seriously contested as a normative American legal ideal. “Of course it is our moral heritage that one should not hate any human being or class of human beings,” wrote Justice Antonin Scalia. He was dissenting in Romer v Evans, a dissent many LGBT-equality advocates found bristling with antipathy for gay people (see Proposition 3).

Proposition 2 is more interesting. The most charitable view of our history is that at least some Americans some of the time have been bigots. The more unhappy view is that most Americans most of the time have been bigots. We have been led painfully and gradually to more sunlit lands, either by life experience or by law, and our national journey will probably never end. History unfolds to reveal new forms of discrimination.

Proposition 3 is the central issue in Linda McClain’s book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. Professor McClain painstakingly excavates charges and countercharges of bigotry in a range of contexts, from slavery to anti-miscegenation laws to the 1964 Civil Rights Act to same-sex marriage to transgender issues. She does this from close readings of judicial opinions, briefs, and statements by legislators, religious leaders, and various organizations. Not only does she catalogue these things. She draws out subtleties in the arguments that echo in arguments heard now.

But she is also careful not to overclaim on the analogy of the race cases to modern gay and transgender rights cases, calling the charge of bigotry “often needlessly provocative and groundless.” Surely that is correct.

As an empirical matter, I think success depends on the forum in which the charge is made. In legal briefs, where the only people who really need to be persuaded are judges, a charge of bigotry (or animus or prejudice), or even what McClain aptly notes is the strategy of claiming to have been called a bigot, might have a fighting chance. McClain points out that in the big animus cases the Court has rarely referred explicitly to “bigotry,” and even advocates for LGBT rights have shied away from the term. Judges are mindful of their roles in history. Especially if they’re writing Supreme Court opinions, they know law students will be reading their work for generations. Nobody wants to be the next Chief Justice Taney. The arc of the constitutional universe is long but it bends toward equality.

However, in the context of popular referenda or in one-on-one conversation, the charge of bigotry is worse than useless. Here’s my perspective from the same-sex marriage struggle. Calling someone a bigot or saying their arguments are bigoted is explosive. Explosions are not conducive to persuasion, which (combined with enthusiasm) is the currency of democracy.

When I was involved in the campaign to defeat an anti-SSM ballot proposition in Minnesota in 2012, I sat in on training sessions for volunteers. Volunteers were instructed that “conversations” with voters (in-person, over the phone, and in all campaign materials) were the key to defeating the amendment. (I was frankly dubious about the efficacy of this; people have firm ideas about marriage and family.) They were not to label SSM a “civil right” because the research showed nobody was persuaded by that kind of language unless they already thought that SSM was a good idea. Above all, nobody was to be called a bigot or have their opposition labeled bigotry. This was a conversation-stopper, and our side needed above all to have conversations.

Needless to say, this caused some cognitive dissonance among the mostly young and enthusiastic volunteers. They believed (as I did) that the cause was right. They were also convinced (as I was not) that opponents of SSM were necessarily bigots and that arguments against SSM were necessarily either rooted in bigotry or were pretexts for bigotry.

The problem was that research for the 2012 campaign demonstrated that we had to show how SSM fit into values that persuadable voters already accepted. When you asked these voters why they personally got married, for example, they emphasized love and commitment. When you asked the same people why they thought gay people wanted to get married, a common response was, “I don’t know.” Or they responded, “gay people want to marry for the legal and monetary benefits.” They had to be exposed to the possibility that gay couples wanted to marry for the same basic reasons they did.

So the campaign message was about “freedom” to marry (not “equality” to marry) combined with traditionalist appeals to love and commitment, not to civil rights or opposition to bigotry. There was a last-minute attempt to inject ominous warnings about previous racial-civil-rights struggles and even to invoke the Japanese internment camps. The campaign rejected these proposed messages. I held my breath.

There had been 31 previous popular votes on SSM and 31 straight defeats. In November 2012, we beat the amendment with 52% of the vote. Within six months, we had successfully pushed the Minnesota legislature and governor to make same-sex marriage legal. That would not have happened so quickly if the groundwork of persuasion had not been laid.

This state-by-state struggle was exhilarating but exhausting and it ended in 2015. On the role of bigotry claims in Obergefell v. Hodges, I have not seen a more careful analysis of the opinion and briefs than McClain’s.

In Obergefell, the Court cited Loving v. Virginia but did not accept Loving as a complete analogy with all of its historical and cultural implications. One could not imagine the Warren Court writing a sentence like this: “Many who deem [interracial] marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

I think McClain nails the reason why such a passage did, in fact, appear with respect to same-sex marriage in Obergefell. We are in what she calls a moment of transition, where “society has not yet reached a consensus about whether treatment of a group is unjust or unreasonable.”

In this moment of transition, I’d suggest two things.

First, as a matter of principle, hesitation to “call out bigotry” can be an admirable predisposition. It opens the putative bigot up to conversation and persuasion. It also opens you up to conversations in which you might learn—as those idealistic, righteous, and morally driven young volunteers did in Minnesota—that you were not quite right about the bad faith and malevolence of the opposition. Their concerns might be concerns that you yourself actually find understandable even if they are ultimately misplaced. Of course, you might conclude the reasons really were just bigoted all along.

Second, as a matter of pragmatism, there are times when making actual progress toward equality entails bracketing the question of bigotry. By bracketing whether an act of discrimination is bigoted, the contending sides can disagree about motives and premises, while agreeing that the cumulative effects of discrimination are harmful. They can find enough common ground to alleviate harm.

However, it’s really hard to justify, to oneself or to a movement, half-way measures and compromises with a bigot. The 1968 Fair Housing Act exempted landlords who refused to rent out rooms on the basis of race in an owner-occupied dwelling with four or fewer units. McClain reminds us that under this “Mrs. Murphy’s boarding house” provision, everyone conceded that the hypothetical Mrs. Murphy was a racist bigot. McClain also reminds us that there were people who argued with great moral fervor that once she opened her house to the public market, Mrs. Murphy should not be allowed to discriminate. The evil of racism could not be tolerated even in this smallest of settings. But Mrs. Murphy’s exemption stands more than a half-century later, long after Americans achieved a consensus about racial bigotry. Civil rights laws throughout state and federal law are riddled with limitations, exemptions, exceptions, and excuses that no hard and pure theory could sustain.

Charges of bigotry are designed to fence in the bigot. But they can also paint an entire movement into a corner. For the foreseeable future, might it be necessary for the LGBT-equality movement to bracket the question of bigotry and allow a small margin of discrimination in order to win a large margin of equality? I think Professor McClain might answer, yes.

Dale Carpenter is Judge William Hawley Atwell Chair of Constitutional Law and Professor of Law at the SMU Dedman School of Law. You can reach him by e-mail at dacarpenter@smu.edu

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