Framing Bigotry

Early in the book, McClain frames multiple issues regarding bigotry, including what makes an opinion bigoted and whether people who hold bigoted views can be distinguished from bigots. Specifically, McClain considers “whether it is the motive for or the content of the 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 all are vulnerable to being bigoted” (6). The framing appears necessary because the terms bigot and bigotry are loaded. Suggesting someone has bigoted views or might be a bigot can end a conversation that could have been fruitful. Consequently, McClain is very careful when defining bigotry and considering who might be a bigot.

McClain defines bigotry narrowly, suggesting that bigotry stems from discrimination but involves more than just discrimination. She explains that bigotry tends to involve unreasonable or irrational views (8). Those views tend to be anachronistic, recalling a time when old style racists held significant sway (9). Bigotry also has a moral dimension (3). Often, labeling a view as bigoted appears intended to deem it morally offensive and to suggest society deems the view morally offensive (2). McClain's definition and framing of bigotry is helpful because it narrows bigotry to particularly problematic ideas rather than calling every idea that may be discriminatory bigoted.

Including a moral dimension to bigotry is important, but it is a double-edged sword. Morality helps clarify the distinction between discrimination and bigotry and guarantees only the most troublesome views will be deemed bigoted. Though McClain attempts to distinguish people who hold bigoted views from bigots, if bigotry is immoral, the distinction between being called a bigot and being deemed a person with bigoted views may not matter to those with ostensibly bigoted views.

Nonetheless, in attempting to draw the distinction between bigots and people with bigoted views, McClain considers whether an archetype of a bigot exists or whether people can have bigoted views that are susceptible to change (11). She explores the issue by considering studies of bigotry from the 1950s and analyzing how those studies have been updated. That taps into the anachronistic aspect of bigotry suggesting time can turn accepted beliefs into bigoted ones (9). Though bigoted beliefs have existed and still exist, McClain appears to suggest the archetypal bigot has largely exited American life as bigotry, or at least racial bigotry, has largely become unacceptable.

The potential firestorm over calling people bigots or views bigoted appears to have led McClain to consider whether unconscious bias may have replaced bigotry in the discrimination hierarchy. McClain points out that “more recent scientific study of prejudice distinguishes old-fashioned, overt bigotry from the more common form of prejudice today—unconscious or hidden bias of good or good-ish people” (46). Unconscious bias surely exists. The ascendance of the Implicit Association Test and discussions of implicit bias allow people to ignore explicit bias and to focus their attention on unconscious bias instead (44–45). The issue may be definitional. Some seem to treat unacknowledged preference as implicit bias. However, a person's lack of acknowledgement that what they believe is biased may render the bias unconscious to that person, but not implicit. A person with an unacknowledged preference for “breadwinning family men” but a disdain for “working mothers” has a conscious and explicit bias. The bias may be unacknowledged, but it is not implicit. If the person hires men with children and refuses to hire women with children, the person has explicitly discriminated whether the person is conscious of the bias or not.

After the brief detour into unconscious bias, McClain primarily focuses on bigotry and explicit bias. Challenges to same-sex marriage are intentionally discriminatory. The discrimination is explicit, though whether the views underlying the discrimination are bigoted depends on how bigotry is defined. Her caution in defining bigotry will comfort some and aggravate others. It also leads to a problem with the book's title.

McClain may be so solicitous of the feelings of possible bigots that she arguably abandons the question in the title of the book. In suggesting the fight over what bigotry is and who is a bigot may distract from the analysis of the content of views regarding same-sex marriage and other topics, she suggests that “who's the bigot?” does not matter: “A focus on bad apples with bad motives, evocative of famous bigots of the past, distracts from attention to the meaning and effect of present-day social practices that embody institutional racism and implicit bias” (216). She likely is correct. The less a reader cares about identifying bigots and the more the reader cares about deep analysis of the arguments for and against same-sex marriage, the happier the reader will be with this book.

Sincere Religious Belief and Legislating Morality

McClain also considers the thorny relationship between sincere religious belief and bigotry (8). Those issues have been linked historically, such as when race-based slavery, segregation, and opposition to interracial marriage were justified by reference to the Bible (chapter 4). The relationship among religious belief, morality, and bigotry is of core concern to McClain because many of the challenges to same-sex marriage are based on religious belief. Those challenges involve public policy and can be relevant if, as some have suggested, morality cannot be legislated.

The distinction between bigotry and discrimination matters. Religious belief is not a pretext for discrimination; it is the reason and justification for discrimination. However, if bigotry and discrimination are not synonymous, sincere religious belief that leads to discrimination need not be deemed bigoted. Though some have suggested sincere religious belief cannot be bigoted, McClain clarifies that it can be (213). This is unsurprising, as religious beliefs may be strongly and sincerely held, but they may also be based on nothing more than faith or the desire to build a world consistent with the believer's preferences. McClain notes beliefs can be an insubstantial justification for public policy even if they are not bigoted (213).

McClain leaves underexamined the distinction between religious belief and mere preferences based on supposed religious doctrine. She recognizes that some religious figures argued there is a difference between what religious doctrine requires and what they would prefer (91–92). However, McClain does not address whether people who claim religious belief as the basis for their discriminatory views sincerely believe their religion requires those views as opposed to merely preferring an interpretation of religious doctrine that leads to those views or wishing society would be organized around their desires that may be supported by, but not required by, religious orthodoxy. For example, the belief that God commands that same-sex marriages cannot occur differs from the claim that marriage should be defined as a union between one woman and one man because God created woman and man with different complementary traits. McClain's failure to fully engage on that issue may lead some to believe she treats religious belief too generously.

McClain also addresses morality, analyzing the old claim unsuccessfully used against the passage of the Civil Rights Act of 1964 that government cannot legislate morality.Footnote ¹ Here McClain explains the arguments some made that Congress “can and must legislate morality” through the Civil Rights Act (106). She notes the government constantly legislates morality through the criminal law and the civil law. The real issue, she suggests, is whether legislating morality affects people's beliefs and actions. Contrary to what the old trope suggests, views may change to reflect the morality the law projects.

The law regulates conduct, and beliefs can be shaped in part by the law (111–14). Laws help people follow their conscience. A person whose conscience is consistent with the law can follow the law without custom pushing them to violate their conscience. The law also stops other citizens from inflicting pain on those who would otherwise be harmed by the absence of a law legislating morality until minds change to reflect a different morality.

Even if the minds of fellow citizens are not changed immediately, over time, those citizens and younger citizens may internalize the moral outlook that undergirds the law's substance. That eventual internalization of the law's mores likely concerns many who challenge same-sex marriage laws even as their substantive views may reflect their intellectual forebears who argued the law cannot legislate morality. Rather than fail to guide morality, the law may legislate morality too well. The issue is whose morality the law reflects. America's experience with the acceptance of the public accommodations provisions of the 1964 Civil Rights Act may be replayed regarding challenges to same-sex marriage. McClain's careful analysis of religious belief, legislating morality, and bigotry remind the reader that the title of the book may be more of a rhetorical device to get the reader thinking about challenges to same-sex marriage and less an organizing question for the book.

Interracial Marriage

McClain's discussion of interracial marriage is a core topic in the book. Challenges to interracial marriage provide prototypical examples of bigotry to compare to challenges to same-sex marriage. The arguments in favor of barring interracial marriage have been exposed as bigoted. The Bible-based arguments have been disavowed. The claim that the opposition was aimed at preventing problem marriages has been exposed. The supposed problems with interracial marriages were not internal to the marriages. They were based largely on external societal opposition to the marriages and potential offspring of the marriages.Footnote ² Once those arguments against interracial marriage were overcome, Loving v. Virginia, which invalidated anti-miscegenation laws, was an easy case. Indeed, McClain notes the decision was accepted more quickly than Brown v. Board of Education (139).

The arguments surrounding challenges to interracial marriage are important because they have been used to critique arguments against same-sex marriage. Those anti-interracial marriage arguments are largely conceded to have been based on bigotry. Their use to critique arguments regarding same-sex marriage tends to trigger the claim that those who oppose same-sex marriage are being called bigots.

McClain's critique of the opposition to interracial marriage is strong, but it appears incomplete. Bigotry is rightly at the center of her critique, but hypocrisy is at the margin. Arguing against interracial marriage when interracial children had existed in America for centuries is not just bigoted, it is hypocritical. McClain does not grapple much with the existence of interracial relationships and children of such relationships prior to Loving v. Virginia.

Early in its history, Virginia law recognized the existence of mixed-race children. Prior to 1662, the children of white men and enslaved Black women may have been born free or potentially free. After Virginia passed a law in 1662 deeming children to take the bondage status of their mother rather than their father, those children were deemed slaves.Footnote ³ White men in Virginia had little problem with creating interracial children. Many did have a problem with treating those children as members of their family and people with equal dignity to whites.

The discussion of interracial relationships and Loving might have benefited from a quick discussion of a few prominent interracial relationships in Virginia prior to Loving. The relationship between Pocahontas and John Rolfe was one of the first.Footnote ⁴ The marriage was sufficiently relevant in Virginia that it appeared to shape Virginia's interracial marriage law until Loving. Virginia's Racial Integrity Act, which banned interracial marriage between whites and non-whites, deemed those with 1/16th or less Native American blood and no other non-white blood to be white. The exception has been deemed the “Pocahontas exception” by various scholars.Footnote ⁵

In addition, almost no discussion of historical interracial relationships in Virginia would be complete without a mention of Thomas Jefferson and Sally Hemings.Footnote ⁶ The story of their relationship begins with the prior generation. Hemings was the half-sister of Thomas Jefferson's wife, Martha.Footnote ⁷ Martha Jefferson's father, John Wayles, and Elizabeth Hemings, an enslaved woman, were Sally Hemings's parents. Hemings took the status—enslaved—of her mother, serving her half-sister and Thomas Jefferson for the great majority of her life. Various prominent Virginians seemed unconcerned with relationships involving dubious consent that produced mixed-race children, but they deemed fully consensual marriages that did so to be problematic. Arguments in Virginia against interracial marriage and other relationships, particularly based on issues revolving around the desire to avoid interracial children, are hypocritical. As McClain discusses, the hypocrisy could help expose the argument as bigoted (85–86).

Virginia did not change its laws on interracial marriage until forced. The recognition of interracial marriage may be thought to have been based on slow moral and legal progress through the 1960s, but other states saw progress well before Virginia. California deemed bans on interracial marriage unconstitutional in 1948; Virginia defended its ban for nearly two decades (152).Footnote ⁸ The failure to accept interracial marriage while others did help make the arguments made in Loving v. Virginia and by other opponents of interracial marriage in the late 1960s and beyond bigoted. The blind reluctance of those challenging same-sex marriage to change positions may guarantee their views will eventually be considered bigoted by some.

Analogizing Challenges to Same-Sex Marriage and Interracial Marriage

The most controversial issue McClain addresses is whether challenges to same-sex marriage should be analogized to challenges to interracial marriage. Those who challenge same-sex marriage abhor the comparison. They recognize challenges to interracial marriage are bigoted, and they do not want their views analogized or compared to such bigoted views. The comparison may not be flattering, but it is fair even if the challenges are not precisely the same. Challenges to interracial marriage and same-sex marriage often are religiously based and often focus on society's right to control the institution of marriage.

McClain makes the argument for comparing the challenges by discussing the arguments in Loving and comparing them to the arguments against homosexual conduct and same-sex marriage in a line of cases starting with Bowers v. Hardwick and ending with Obergefell v. Hodges. She does not take a firm stand on whether the challenges are analogous. Her analysis focuses on the rhetoric of bigotry surrounding the challenges. She notes that justices who argue against the challenges to same-sex marriage do not overuse the rhetoric of bigotry to characterize those challenges (180). They tend to be solicitous of the views of the challengers, even as the justices who would allow the challenges claim the challengers are being called bigots, in part, by having their legal arguments compared to the legal arguments in Loving (179).

The refusal to deem challenges to interracial marriage and same-sex marriage strictly analogous makes sense, even if both styles of challenges should be rejected. Both challenges may rely on claims about traditional marriage for support. However, the reliance on traditional marriage in the interracial context has no logical support. In substance, interracial marriages were “traditional” marriages that had been barred by the law in various states. In no way would marriage need to be redefined to include interracial marriage. In contrast, same-sex marriages can be argued to be “nontraditional” in substance. Same-sex marriage can be thought to require an expansion or redefinition of “traditional” marriage. The refusal to do so is discriminatory and may be bigoted, but in a manner different than the refusal to recognize interracial marriage as traditional marriage is bigoted.

McClain then considers the analogy between the refusal to accept public accommodations laws under the 1964 Civil Rights Act and the request for religious exemptions to antidiscrimination laws. Again, she evaluates the rhetoric of bigotry surrounding the arguments. Her analysis finds jurists who want to decline to allow religious exemptions are respectful of the religious views of those arguing for the exemptions. She finds jurists supporting the exemptions claiming their fellow jurists are calling those requesting the exemptions bigots. However, she finds no basis for that claim, arguing, “in a climate of polarization, people sometimes hear even a discussion of implicit bias as a charge of bigotry” (217).

Nonetheless, McClain suggests both sides should move away from the analogies to bigotry and claims of bias-based discrimination, in part, because public policy should not depend on whether the arguments for or against the public policy are bigoted. McClain maintains, “Thus, it is not necessary to label a religious belief bigoted or the moral equivalent of racism to affirm that government has authority to limit one's ability to act on that belief in civic life when doing so harms the rights of others” (213).

The issue is whether the public policy is good public policy. Consequently, both sides should move directly toward a discussion of the substance of religious exemptions that focus on a consideration of “civility and tolerance, or the price of citizenship in a pluralistic society” (210). Functionally, she tells us the question Who's the Bigot? does not matter.

McClain ends the book noting the rhetoric of bigotry has infected the discussion of transgender rights. She suggests that is unfortunate because the key questions should relate to the substance of transgender rights rather than a fight over the rhetoric of bigotry around those rights. Regarding all issues of inequality, including misogyny and sexism, she notes: “To shift away from a fixed, irredeemable type, ‘the bigot,’ to the problem of bigoted beliefs and conduct, is to shift to how to prevent bigotry and prejudice and combat the thinking that leads to prejudiced views and actions” (230).