Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
McClain’s Who’s the Bigot? is an impressive survey of the uses of the term
“bigot” in debates about civil rights over the past fifty years. She has immersed herself in those debates,
and the stories, about how the rhetoric has shifted in that time, is
fascinating. The now-forgotten arguments
that were once made on behalf of racial segregation are an intellectual freak
show. My favorite: “Christ himself never lived an integrated
life, and although He knew His life on earth would be a model for all mankind,
when he chose His close associates, they were all white.” (118)(Of course, no
one knows what Jesus’s disciples looked like.)
shows how, in old debates about racial integration and modern ones about gay
rights, there is a perennial tendency for both sides to make accusations of
bigotry. Proponents of racial equality
were accused of being bigoted against Southern whites. Defenders of gay rights are accused of being
bigoted against conservative Christians.
thinks that there is value in “drawing analogies between past and present forms
of discrimination and exclusion,” in order to “point out how, over time, new
insights and evolving understandings have let to recognition that such
treatment is unjustified.” (209) But she thinks that the charge of bigotry is
“often needlessly provocative and groundless.” (209) One need not “portray
religious beliefs as a pretext” in order to argue “that there must be limits to
acting on such beliefs in the marketplace.” (209) She thinks that those limits helped bring
about progress: “If it isn’t 1964 anymore, that is due in part to not having
robust religious exemptions.” (203) The
implication is that, in contemporary debates over gay rights and religious
liberty, we should refuse exemptions.
But we should do it nicely, without accusations of bigotry.
take issue with McClain on two and a half issues. I’m not persuaded that the comparison with
1964 shows that we need to refuse religious exemptions today. I have a different analysis than she does of
the concept of bigotry (that kind of nerdy nitpicking is only half an issue),
and I think that the weaknesses of her analysis lead her to be too charitable
to people on the left who now deploy the charge of bigotry against religious
conservatives. Her account of bigotry
understates how toxic the charge is.
It is a truth universally acknowledged that there
could not and should not have been religious exemptions from the Civil Rights
Act of 1964. “Racial segregation in the
marketplace and elsewhere likely would have persisted had legislatures and
courts allowed broad religious exemptions.” (203) From this one might infer –
many do infer – that that those who refuse to facilitate same-sex marriages are
not entitled to even the mild, defeasible presumption of accommodation that
America has often extended to conscientious objectors. One might also infer that, as in 1964, the
stakes are high enough to justify a state effort to stamp out the subculture
that embraces these hateful views.
But this misunderstands the situation the country
faced in 1964. One need not take
heterosexism less seriously than racism in order to understand the uniqueness
of our situation then.
America has a long tradition of accommodating
religious dissenters. As a general
matter, the law should not strive to stamp out any subculture and make its
members outcasts. Racism has been so
pervasive and destructive that these two principles are appropriately
overridden. The civil rights struggle
demanded coercive cultural reconstruction, especially but not only in the
states of the former Confederacy.
The question is not simply whether people are acting
on the basis of repugnant ideas. There
are a lot of repugnant ideas around. It
is whether there should be cultural war.
That question, like any decision to go to war, depends on prudential assessment
of likely consequences. In the case of
race, there has been progress, but the war isn’t over. Zero tolerance remains necessary. In the case of sexual orientation, war is
unnecessary and unlikely to improve matters.
Any religious accommodation rests in part on a bet
that it will not be invoked so often as to defeat the purpose of the law. There have been remarkably few wedding
vendors who have objected to same-sex marriage.
In 1964, there were too many racists who would have invoked any exemption. That’s not our world.
Look at the trends.
In 1997, 27% of Americans supported same-sex marriage. In 2017
it was 64%. Among Americans aged 18 to
29, in 2018
it was 79%. It is only 34% of white
evangelical Protestants, but even in that group, opposition has plunged from
71% in 2013 to 58% in 2017. Of white
evangelicals aged 18 to 29, a majority – 53% - are in favor. In 2017,
63 percent thought that homosexual sex is morally acceptable, compared with 40
percent in 2001. In short, there is a
cultural cascade taking place, but it is in the opposite direction.
rhetoric of bigotry has made it impossible to compromise.
raises, but never quite solves, several “puzzles about the rhetoric of bigotry:
whether it is the motive for or the content of a belief that makes it bigoted;
whether bigotry is simply shorthand for beliefs that are now beyond the pale;
and whether bigotry stems from a type of character, ‘the bigot,’ who has
specific moral and psychological traits, or whether we are all vulnerable to
being bigoted.” (6) All these are puzzles only if we think
bigotry has an essence whose content it is possible to determine by specifying
its necessary and sufficient conditions.
What she points to are not puzzles, but ambiguities: the term is
sometimes used in all of these ways. An
ambiguous word shouldn’t be puzzling: its meaning is simply ambiguous, and the
ambiguity will appropriately be resolved differently in different
contexts. The interesting question is
what the ambiguities tell us about the word and its use.
trouble lies in the notion that “bigotry” is a term with a definition, one that
has necessary and sufficient conditions.
On the contrary, it’s based on a prototype.
of what happens when you call someone a Nazi.
The accusation is a metaphor, and calls attention to resemblances, but
it’s a mistake to look for definitional boundaries. What one is really saying is that the target
ought to elicit the same moral disgust as the historical Nazi does.
prototype can’t be defined. It has a
cluster of characteristics that one can reach for as the occasion demands.
prototypical bigot – the person whom the word brings to mind - is a thoroughly
repellent person, whose hatred of certain groups is baked into his
personality. He is a walking ball of
hatred, with an irredeemably evil character.
A prominent exemplar is Bob Ewell in To
Kill a Mockingbird, who beats and rapes his own daughter, frames an
innocent black man for the crime, and is killed while trying to murder two
children. He functions as a negative
model: you don’t want to be him.
the term bigot accomplishes is to assert that the fact that a person holds
certain beliefs shows that he is an awful human being, a Bob Ewell. That’s why the term is a conversation
stopper. What can you possibly say when
someone calls you a bigot? It is itself
an unfair stereotype of people who hold conservative religious beliefs about
sexuality. No wonder charges of bigotry
fly in both directions.
Cakeshop, a commissioner declared that “to me it is one of the most
despicable pieces of rhetoric that people can use to—to use their religion to
hurt others.” The Court observed that this disparaged the baker’s
religion “in at least two distinct ways: by describing it as despicable, and
also by characterizing it as merely rhetorical — something insubstantial and
even insincere.” The Court might also
have looked more closely at the phrase “use their religion.” It turns up a lot: in 2015, during one
exemption controversy, The New York Times
ran an editorial with this title: “In
Indiana, Using Religion as a Cover for Bigotry.” The implication is that the
baker was not really motivated by his religion.
He is using religion as a phony excuse for his malicious desire to
harm. One uses a tool, and is not used
McClain regards this language too forgivingly. Contemplating a few other deployments of the
“using religion” language, she writes:
“What does ‘using’ mean here? It
could mean that they knew that they were making pretextual arguments to justify
their self-interest. Or it could mean
that they read the Bible sincerely and confidently, but wrongly.” (212) The second reading is implausible. A person who is honestly mistaken is not
“using” his mistake. So “using one’s
religion” isn’t an innocent activity.
Another example of her excessive charity: a majority of the U. S.
Commission on Civil Rights declared that proposals for religious accommodation
“represent an orchestrated, nationwide effort by extremists to promote bigotry,
cloaked in the mantle of ‘religious freedom,’” and “are pretextual attempts to
justify naked animus against lesbian, gay, bisexual, and transgender
people.” Chairman Castro sought to
“ensure that religion never again be twisted” in this way.
McClain writes that this language “may imply that
the commissioners question the motives and sincerity of those who asserted the
beliefs; or it may mean that the commissioners think that such beliefs distort
true religion because they deny equality.” (185) Too generous again. What could “pretextual” mean other than that
these people are lying about what they believe?
The label of “pretextual” seems to rely on the idea
that no one could really believe this stuff.
But that notion evades the familiar problem of religious diversity. Other
people’s religious beliefs often seem obviously bizarre to us.
decent people honestly embrace the sexual ethics that, they believe, their
religions have taught for centuries.
They take those teachings seriously.
They think that life and morality make no sense without a religious
basis. I disagree, but I disagree with a
lot of people about a lot of things. The
American right and left are notoriously polarized, but large parts of each are
certain that those who disagree with them are necessarily evil. It is exactly the kind of stupid stereotype
that is the natural target of the term “bigot.”
In the contemporary debate over gay
rights and religious liberty, there just aren’t a lot of Bob Ewells. Today, if
you use the term bigot in this context, there’s some danger that you are
one. Both sides ought to retire this
term. It’s a weapon rather than a tool
of reasoning, and it turns on its possessor, paralyzing his mind and making him
Andrew Koppelman, John Paul Stevens Professor of Law
at Northwestern University, firstname.lastname@example.org, is the author of Gay
Rights vs. Religious Liberty? The Unnecessary Conflict (Oxford University
Press, June 2020).