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Tuesday, June 16, 2020
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
Posted 9:30 AM by Guest Blogger [link]
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |