Balkinization: Law, Bigotry, and Expertise

Law, Bigotry, and Expertise

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).

Aziza Ahmed

We live in a political moment in which the world is deeply divided between those people who believe that members of some groups, including racial minorities, immigrants, and the LGBT community need increasing legal entitlements and those who see those very legal entitlements as a threat to their own futures. This is not new, of course. As many scholars have shown, these moral and political fights began before the country was founded.

Linda McClain’s brilliant book, Who’s the Bigot? Learning from Conflicts Over Marriage and Civil Rights Law, brings new perspective to how these fights play out in law and society by excavating the power of calling someone a bigot. By tracing this word over several decades and as it appears in legal doctrine, activist organizing (from the right and left), and as a term used in political debate, McClain powerfully demonstrates how an accusation of bigotry carries with it the power to fuel a movement and even alter the legal environment. In turn, McClains careful excavation shows how individuals and organizations orient themselves to avoid the accusation of bigotry, and, in turn, how the word carries with it a deep ability to bring about societal shift and spark political debate. While the book traverses a range of topics, she focuses on several key shifts in American legal and political consensus including those that have occurred around interfaith, interracial, and gay marriage; and transgender rights.

As McClain demonstrates in her book, a key defense to an accusation of bigotry has long been that the discrimination experienced by others is simply the purported bigot’s sincerely and deeply held belief. Most often this is justified by religion. Yet, even religious leaders frequently interweave their faith-based perspective with reference to expert discourse including the work of scientists and social scientists. By making the move to expertise, religious groups seek to ground their desire to discriminate in other sources of authority that carry a broader legitimacy than religion might and carries with it the valence of political neutrality. The claim to social science – or to “fact” – purportedly protects against the idea that there is bigotry. This is also true of progressives, who draw from scientific development and social science to forward their own project. As McClain describes, this back and forth was clearly on display in Loving v. Virginia, where lawyers for the Loving’s, who argue that interracial marriage should be legally permitted, utilize a UNESCO report which disclaims the idea of a scientific basis for racial difference. The UNESCO report was produced following World War II which helped discredit racial science (though not eliminate it) given its role in the holocaust. While not science per say, as McClain describes, in defense of anti-miscegenation laws the state of Virginia draws on social science expertise in their reliance on the work of sociologist Rabbi Gordon who argues that intermarriage, both of faith and race, is a threat to “personal and group happiness.”

In more recent years, claims to biological fact have played a role in arguments against ending discrimination against members of the trans community, particularly in public accommodations law, where we again see claims of religious and biological authority invoked to defend against the accusation of bigotry. As described by McClain in the case of protecting trans individuals in the context of public accommodations, Christian evangelicals called for upholding the scientific definition of sex offered by the Trump administration on the grounds that it was based in biology and could not be argued against. By staying focused on biology, there would be no need to protect people from using the bathroom of their choice as they should use the bathroom of their biological origin. The conservative argument is flawed for many reasons, even on the fixity of biology itself as Anne Fausto Sterling demonstrated long ago, yet the appeal to biology offers a rationale beyond those perceived as purely religious or moral. Its power lies in its ability to make a claim to a discourse that appears to be politically neutral: science.

Much of the ideological contestation we have experienced – from interracial to interfaith marriage to public accommodations – is the product of shifting social and cultural beliefs. Once these shifts have occurred, once they are institutionalized in law and in the bureaucratic mechanisms necessary to effectuate the law. Once a political transition is made, say, for example that interracial marriage is seen as widely acceptable, according to McClain we begin to see the past belief, that interracial marriage is unacceptable, as bigoted. In turn, as McClain argues “claims about bigotry are simultaneously backward- and forward- looking. Defining a belief or practice as bigotry may be possible only after society has repudiated it as wrong and unjust. Once there is general agreement that such past beliefs and practices were bigoted, it becomes hard for people to understand that anyone ever seriously defended them.”

Each decade, or perhaps even every few years, we seem to arrive at a new, albeit often tenuous consensus about the social, cultural, and political issues of our time. The consequences of these decisions are often profound: who will get the legal and financial entitlements that come with marriage? Who will be safe in public spaces? Who will be accepted in society? These transformations are powerful not only because they change legal entitlements but they have the capacity to help legitimate or undermine the political neutrality of the expertise that they are based on. They call into question the very facts relied upon by those who argued for the now regressive position. And, these transformations open the door to new forms of knowledge production about people’s relationships to one another. Often, these new expert-generated forms of knowledge about marriage, race, gender, and sexuality still take on the valance of neutrality. But as McClain’s incisive genealogy of the word bigotry demonstrates, we understand the legitimacy of these facts through our new and ever shifting legal, social, and political moment.

Aziza Ahmed is Professor of Law at Northeastern University School of Law. You can reach her by e-mail at Az.Ahmed at northeastern.edu

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