Thursday, June 18, 2020

Reply to Six Commentaries on Who’s the Bigot?

Linda McClain

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

Thanks very much to Sandy Levinson for organizing this wonderful symposium on Who’s the Bigot? and to Jack Balkin for providing space on Balkinization. I am grateful to contributors Aziza Ahmed, Dale Carpenter, Imer Flores, Cathleen Kaveny, Randall Kennedy, and Andrew Koppelman for their insightful and instructive comments. I will address some general themes and then respond to a few specific points.

All of the commentators correctly observe the provocative power of the term “bigot.” As Dale Carpenter succinctly puts it: “When it comes to 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.” Both Imer Flores and Andy Koppelman stress how “toxic” a charge of bigotry is. While I recognize the “conversation-stopping” force of the charge of bigotry—and conclude that “the rhetoric of bigotry is sometimes necessary and appropriate, but at other times, there are more constructive ways to talk about prejudice, intolerance and discrimination”—Flores argues that “the rhetoric of bigotry” can “never be appropriate” because of the dynamic of “flipping the charges” so that the accuser is the real bigot. My book discusses this dynamic in several contexts, including debates over the Civil Rights Act of 1964 and over LGBT rights today.

I am grateful to Carpenter for suggesting that the best answer to the question of whether the rhetoric of bigotry is ever or “never” appropriate “depends on the forum in which the charge is made.” He helpfully recounts his own experience, in the campaign to defeat an anti-same sex marriage ballot proposition in Minnesota, training volunteers whose mission was to have “conversations” with voters to persuade them to vote against the amendment. Carpenter recounts  the instruction that, “above all, nobody was to be called a bigot or have their opposition labeled bigotry” because “this was a conversation-stopper, and our side needed above all to have conversations” that opened the door to understanding that “gay couples wanted to marry for the same basic reasons” the people they were calling did. For the “young and mostly enthusiastic volunteers,” this created some “cognitive dissonance,” since they believed that opponents of same-sex marriage “were necessarily bigots” and that arguments against same-sex marriage “were necessarily rooted in bigotry or were pretexts for bigotry.”  (Carpenter indicates he did not share this view.) Happily, the campaign was successful. Carpenter attributes the subsequent enactment of a law permitting same-sex marriage to the “groundwork of persuasion” laid by the campaign. I share Carpenter’s conclusion that hesitation to “call out bigotry” may be appropriate when the goal is persuasion and conversation.

I also agree with Carpenter that “as a matter of pragmatism, there are times when making actual progress toward equality entails bracketing the question of bigotry.” He gives the example of finding common ground to oppose discrimination based on its harmful effects without labeling what motivates people to discriminate. Here, I suggest, attention to historical context is helpful. During the debate over the Civil Rights Act of 1964, some proponents did not hesitate to use the rhetoric of bigotry to insist that ending discrimination in public accommodations and other areas of life was necessary: in Senator Thomas Kuchel’s words,  “Our spirit is not narrow bigotry.” But precisely because racism now stands—or should stand—as a primary example of properly-repudiated bigotry, present-day rhetoric of bigotry is highly charged for it carries with it evocations of this repudiated past.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), this evocation of the racist bigot played a key role in arguments by baker Jack Phillips and his amici that he was a sincere man of faith who loved everyone. They warned that ruling against Phillips would brand him a bigot, akin to a racist.   By contrast, the party briefs and many of the amicus briefs filed in support of Colorado Civil Rights Commission (CCRC) and Craig and Mullins, the couple for whom Phillips refused to bake a cake, stressed that motive did not matter: discrimination laws aimed at conduct. For example, Lambda Legal Defense and Education Fund noted “pervasive” discrimination against LGBT people in “nearly every aspect of public life” and observed that it did not question Philips’s religious sincerity, but instead focused on the “ripple effects” of conscience exemptions to antidiscrimination laws. Justice Kennedy’s opinion in Masterpiece Cakeshop makes a similar point. He first observes that “the religious and philosophical objections to gay marriage are protected views,” but he affirms the “general rule” that “such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”  (138 S. Ct. at 1727)

Andrew Koppelman and I disagree about the proper scope—and likely impact—of religious exemptions from public accommodations laws that protect against discrimination. I cannot address all those differences here. In his own new book, Koppelman uses the rhetorical device of scolding liberal and progressive champions of gay and lesbian rights for branding opponents of those rights as bigoted, evil, and motivated by irrational hatred and for opposing religious exemptions for them. In his piece in this symposium, he seems to want to lump me in with such liberals and progressives. With all due respect, I do not offer a theory of religious liberty or develop a position on whether legislatures should create religious exemptions. I attempt a nuanced evaluation of the rhetoric of bigotry and key arguments made in prominent cases involving religious liberty challenges to public accommodations law. For the record, in Ordered Liberty (2013), a book I co-authored with James E. Fleming, we acknowledged that a prudential approach to religious exemptions, in circumstances of rapid constitutional and cultural change, might be effective in securing acceptance of and appreciation for same-sex marriage.

Many of Koppelman’s charges seem inapt with respect to Who’s the Bigot? and its project. He repeatedly uses terms like enlisting the state to “stamp out any subculture and make its members outcasts.” I never use such language in my book with respect to Jack Phillips or other opponents of civil marriage equality. Koppelman accuses me of being too forgiving of the civil rights commissioner in Masterpiece and of the U.S. Commission on Civil Rights, in their Peaceful Coexistence: Reconciling Nondiscrimination Principles with Religious Liberties report (2016), for their remarks decrying how religious beliefs have been “used” to justify discrimination and to deny various groups basic rights over the course of history. More than once, he faults my book for its charity in reading certain texts or assessing certain arguments. I do indeed aspire to interpretive charity, but I thought that was a virtue!

Koppelman’s critique also ignores how I conclude my analysis of the Peaceful Coexistence report and of Masterpiece Cakeshop. I first state that “the mere step of drawing analogies between past and present forms of discrimination to point out how, over time, new insights and evolving understandings have led to recognition that such treatment is unjustified is not a charge of bigotry.” I then add: “it is also needlessly provocative to portray religious beliefs as a pretext or code word for discrimination in arguing that there must be limits to acting on such beliefs in the marketplace. . . . Speaking of pretext focuses too much on bad motive rather than harmful effects and social meaning” (pp. 209-10) In response to Justice Kennedy’s directive that future disputes “must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” I point to Justice Bosson’s concurring opinion in Elane Photography as a model. He speaks respectfully about the business owners subject to New Mexico’s public accommodations law as well as their sincere religious beliefs, while also explaining that the freedom to live out one’s religious beliefs must have some limits in “our civic life” as part of the requirements of civility and the “price” of citizenship in a pluralistic society. Imer Flores, I infer, would likely praise Justice Bosson for explaining this limit in a way that eschews the rhetoric of bigotry and expresses empathy for the business owners.

Aziza Ahmed astutely discusses how appeals to science and to “neutral” expertise have featured in earlier and ongoing battles over bigotry. As she writes about prior and present-day conflicts over whether members of some groups need increasing “legal entitlements” or whether such entitlements threaten other groups: “the claim to social science—or to ‘fact— purportedly protects against the idea that there is bigotry.”  Appeals to science, she points out, frequently have buttressed the appeal to sincerely and deeply held religious belief; both feature in arguments that opposition to particular constitutional or civil rights are not rooted in bigotry. As she observes, my analysis of Loving v. Virginia (chapter 6) highlights how the Lovings and their amici relied on a UNESCO report denying any scientific basis for ideas about racial difference, racial purity, and antimiscegenation laws, while the Commonwealth of Virginia appealed to social science expertise in the form of sociologist and Rabbi Albert Gordon’s jeremiad against “intermarriage”—interfaith, interracial, and interethnic. A further example (in Chapter 4) is the competing appeals to science in both the theology of segregation and the theology of integration in critiques and defenses of Brown v. Board of Education.

Ahmed correctly notes that the appeal to “expert-generated forms of knowledge about marriage, race, gender, and sexuality still take on the valence of neutrality,” pointing to the ongoing struggles over the rights of transgender person.  Historical examples, however, demonstrate how much ideological contestation over such matters is “the product of shifting social and cultural beliefs.” Scientific consensus itself shifts, as is evident not only in the eventual repudiation of eugenics and “scientific racism” but also in shifts in scientific understanding of sexual orientation and, more recently, gender identity.

Strikingly, the former— now repudiated—scientific understanding about sexual orientation and gender identity featured in Justice Alito’s lengthy and anguished dissent in Bostock v. Clayton County (June 15, 2020), in which Justice Gorsuch’s (6-3) majority opinion concluded that Title VII’s prohibition of employment discrimination on the basis of “sex” meant that employers could not fire employees simply for being gay, lesbian, or transgender. Countering the majority’s insistence that Title VII’s use of the term “sex” must be read broadly, Alito appealed to the “social context” in which Title VII was enacted. Even though it is “painful” for “most 21st-century Americans to be reminded of the way our society once treated gays and lesbians,”  he wrote, the “plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.” (slip op., Alito, J., dissenting, p. 28).  (To illustrate the scientific view circa 1964, Alito cites the 1952 and 1968 editions of the Diagnostic and Statistical Manual of Mental Disorders.) It is remarkable that Alito thinks this repudiated scientific understanding should determine the Court’s interpretation of the general language of the statute.

Cathleen Kaveny and Randy Kennedy both raise important questions about the role of appeals to sincere religious beliefs in battles over bigotry. Kennedy asks if “sincerity” is always a virtue. For example, he observes that Barack Obama declared support for gay marriage in 1996, while running for the Illinois State Senate, but, when running for the presidency, declared that “as a Christian,” he opposed same-sex marriage. (Later, by the second term of his presidency, Obama switched again and made speeches linking the struggles at Seneca Falls, Selma, and Stonewall.) Kennedy argues that Obama likely used religion as a “cover story” because, as my book “amply documents,” “assertions of religious belief in favor of contested discriminatory policies or practices are often given more leeway than other sorts of explanations.” Kennedy concludes that this example suggests “sincerity” is not always “a good thing.”  If Obama’s invocation of religion was insincere and pretextual, does that make him a bigot or those who support him bigots? Certainly not!

Kennedy’s musings about sincerity connect to Kaveny’s concern that current discourse about religious belief focuses on “sincerity” to the exclusion of focusing on reasons for beliefs. As she notes, the association of bigotry with insincerity seems to be rooted in older understandings of bigotry as hypocrisy. (Flores also discusses this association, citing Moliere’s Tartuffe, which refers to the supposedly holy man Tartuffe as a “bigot” because he is a “carping hypocrite.”) Kaveny recognizes, however, that more modern definitions of bigotry focus on intolerant or obstinate devotion to one’s own opinions and prejudices.

Kaveny relates tension around current understandings of bigotry—whether bigotry relates to bad motives or bad reasons—to the divide between feeling and reason in how religious belief is presented. She aptly observes that, in free exercise litigation, “religious belief is presented as adamant, full of feeling, and insulated from both intellectual content and broader critique.” She insightfully argues that this “divorce” of feeling from reason will, in the long run, be harmful for religious communities and for a nation that includes “many religious believers.” While courts, under First Amendment doctrine, do not inquire as to the reasonableness of a religious belief, so long as it is sincere, Kaveny cautions against religious liberty groups encouraging religious groups to “frame themselves as sincere, well-meaning naifs, escaping the charge of bigotry by emphasizing sincerity rather than rationality of belief.” As she well puts it, “by stressing their sincerity,” they not only “insulate the substance of their claims about how human beings should live and human society should organize themselves” from judicial scrutiny, but also “increasingly think their claims should be insulated from scrutiny from their fellow citizens and fellow believers.”

Kaveny points to strands of Christian theology (such as that of John Wesley) that do not appeal simply to feeling, but direct believers “to examine emerging ethical questions in light of the insights of Scripture, tradition, and reason, as well as experience.”  In my book, I offer some examples of sermons in which clergy defending Brown v. Board of Education appealed to similar methods to conclude that scripture does not support segregation. Further, Brown itself spurred many denominational statements to confront and denounce segregation, as well as some others to insist that it was of divine origin and the proper basis for American life. The competing theologies of segregation and integration both appealed to “conscience” and to “reason.” However, as some civil rights clergy observed, prejudice can cloud one’s vision and self-interest may distort one’s reasoning. One sobering lesson with respect to the theology of segregation is that conscience may be mistaken.

Kaveny offers the possibility that one way tensions between religious liberty and anti-discrimination rights for LGBTQ persons might evolve is on a path similar to how church teaching developed with respect to race. She observes that, at the present moment, many theologians and philosophers in many branches of Christianity “do not rest content with sincerity” and are “doing the hard intellectual work of trying to integrate new insights into their religious feelings.” The number of religious denominations filing amicus briefs in support of the LBG and transgender plaintiffs in the Title VII cases that the Court just decided illustrates this development.

This issue of new insights raises the question of bigotry and redemption.  I strongly disagree with Koppelman’s claim that the murderous, brutal, racist, and rapist father Bob Ewell, in To Kill a Mockingbird, is a “prominent exemplar” of the “prototypical bigot,” defined by Koppleman as “a thoroughly repellent person, whose hatred of certain persons is baked into his personality”—a “walking ball of hatred, with an irredeemably evil character.” As I researched my book, I did not encounter any references to Ewell. More typical was Sheriff Bull Connor, unleashing dogs on protestors or Governor George Wallace, declaring “segregation now, segregation forever.” Many civil rights-era sermons and speeches argued that it was necessary and possible to “redeem” or rescue the bigoted or prejudiced person from the fangs or poison of their bigotry or prejudice. As I discuss (in chapter 4), a central tenet of Dr. Martin Luther King, Jr’s philosophy of nonviolence resistance was that it was the “most potent” weapon for arousing the conscience of the oppressors and their sense of shame or guilt – a step toward reconciliation and redemption. There are some famous examples of evident (eventual) repentance for racist beliefs and conduct, including George Wallace, who later publicly apologized for his segregationist stance.

Koppelman is correct, however, that on some definitions of bigotry, bigots are “irredeemable” in the sense that they lack the capacity or willingness to changes their beliefs or attitudes, even in the face of evidence that such beliefs or attitudes are mistaken. As I discuss (in Chapter 2), Gordon W. Allport, author of the classic The Nature of Prejudice (1954), posited a “genuine bigot,” where, to adapt Koppelman’s words,  “baked into his personality” were certain traits that made the bigot unable to change, including a lack of “insight.” Allport also argued, however, that prejudice results from ordinary cognitive processes, such as the need for the mind to think in categories, to prejudge, and to rely on stereotypes.

This tension in classic work about prejudice led me to identify as one puzzle about bigotry whether it was the result of ordinary cognitive processor or the product of a flawed character type—the bigoted personality.  Allport’s focus on ordinary cognitive processes laid a foundation for later generations of social psychologists’ investigation of implicit, or unconscious, bias. Such work invites attention to the social and cultural conditions and structures that shape and can worsen prejudice. This analysis doesn’t deny the existence of blatant bias and prejudice, or as Professor Susan T. Fiske calls it, “barefaced bigotry,” but it calls for fighting against prejudice and for social engineering to reduce it.

The video of the brutal murder of George Floyd by police officer Derek Chauvin has spurred prolonged protests about systemic racism in the U.S. and demands to address it. The problem is not—contrary to the Trump Administration’s insistence—that of a few “bad apples” or “barefaced” bigots, but broader institutional structures. As Fiske explains, the fight against prejudice must recognize how these institutional structures, unconscious bias, and overt prejudice work in tandem, and that roots of prejudice “stretch back centuries: “Years, even generations, of explicit and implicit cultural messages – gleaned from parents, the media, first-hand experiences, and countless other sources – link physical appearances with a host of traits, positive or negative. . . . Such messages are absorbed, accepted, and perpetuated, often unconsciously, by our culture’s members and institutions.” Fiske’s list of influences is an action plan for the fight against prejudice, beginning with moral learning in families and expanding to include those “countless other sources,” including society’s basic institutions. Allport also recognized the critical role of socializing children. He observed: “no young child is ever a bigot.” Either the child learns their elders’ prejudices and hierarchical judgements or the child has “education for democracy” and learns that “diversity is compatible with equality.” Allport wrote at a time of officially-sanctioned structural racism—while “separate but equal” was still the law of the land—and urged that antidiscrimination laws and the end of legally supported segregation could and should create new “folkways” of equality.

As I worked on my book, the rhetoric of bigotry was prominent in the 2016 presidential campaign, when both party platforms condemned bigotry in all its forms, but many critics charged Donald Trump with making bigoted statements and proposing bigoted policies. As I write this reply, with the 2020 election months away, the rhetoric of bigotry is prominent in public discourse over police brutality and systemic racism. President Trump has spoken of the need to “confront bigotry and prejudice wherever they appear,” but stated:  “we’ll make no progress and heal no wounds by falsely labelling tens of millions of decent Americans as racists or bigots.” The Trump Administration has resisted any diagnosis of systemic racism in the U.S., attributing police brutality to “bad apples” and predicting that eradicating racism “will go quickly and . . . go very easily.” Unfortunately, this reduction of the protestors’ legitimate demands— that it is long past time to address systemic racism in the U.S.— to false charges of bigotry brought against “decent” people misses the point. Instead, it weaponizes the rhetoric of bigotry. The analysis in my book suggests that making any real progress on overt and systemic racism will require a committed and sustained effort.

Linda C. McClain is Robert Kent Professor of Law at Boston University School of Law. You can reach her by e-mail at lmcclain at

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