Sunday, June 14, 2020

Who’s the Nazi?

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).

Andrew Koppelman

Linda 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.)

McClain 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.

McClain 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.

I 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. 

The rhetoric of bigotry has made it impossible to compromise.

McClain 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.

The 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.

Think 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.

A prototype can’t be defined.  It has a cluster of characteristics that one can reach for as the occasion demands. 

The 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.

What 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.

In Masterpiece 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 by it.

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.

Many 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 stupid.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University,, is the author of Gay Rights vs. Religious Liberty? The Unnecessary Conflict (Oxford University Press, June 2020).

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