For reasons rooted in racial prejudice and fear of racial amalgamation, states such as Virginia had, well into the twentieth century, used law and violence either to prevent interracial marriages from forming or to banish mixed-race couples from the state. Such was the case when Mildred Jeter and Richard Loving wed in 1959 and soon faced the prospect of a prison sentence if they did not leave the state of Virginia and agree not to return together for a quarter century. Their crime was marrying in violation of Virginia's 1924 Racial Integrity Act. The Supreme Court of the United States, however, enjoined enforcement of that act in the now-celebrated 1967 case of Loving v. Virginia. In his opinion for a unanimous court, Chief Justice Earl Warren wrote that there “[could] be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause” and also “deprive[s] the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.” Chief Justice Warren described the “freedom to marry” as “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”Footnote ¹ The freedom to marry here meant the freedom to marry irrespective of one's race or the race of one's spouse, precisely because race was irrelevant to the purpose and definition of marriage, which Black's Law Dictionary described at the time as “the civil status, condition, or relation, of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”Footnote ² “The Fourteenth Amendment,” Warren concluded, “requires that the freedom of choice to marry not be restricted by invidious racial discriminations.”Footnote ³

Three years after Loving, Jack Baker and Michael McConnell went to the Hennepin County District Court in Minnesota to request a license legally recognizing their relationship as a civil marriage under the laws of Minnesota. The clerk denied their request on the sole ground that they were both male and therefore ineligible to marry each other under state law. Baker and McConnell sued, and the Minnesota Supreme Court soon considered a novel legal argument: that denying the freedom to marry someone of the same sex was tantamount to denying the freedom to marry someone of a different race. Race and sex distinctions in marriage were alike invidious and unjust, they argued. Appealing to Loving, they compared the then universally accepted sex-based aspect of marriage law to long-standing state antimiscegenation statutes, prompting the Minnesota Supreme Court to respond in its opinion that “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”Footnote ⁴ The same Court that decided Loving then dismissed Baker's and McConnell's appeal for want of a substantial federal question.Footnote ⁵

In their jurisdictional statement for the Supreme Court, Baker and McConnell had contended that “[b]ecause of abiding prejudice, appellants are being deprived of a basic right—the right to marry.”Footnote ⁶ Those who had refused to grant the requested marriage license, they claimed, engaged in “arbitrary and invidious discriminatory conduct.”Footnote ⁷ The state of Minnesota in structuring its marriage laws had been “arbitrary, capricious, and unreasonable,” and lacked any rational basis for denying the freedom to marry someone of the same sex.Footnote ⁸ Baker's and McConnell's arguments all hit categories and phrases from relevant mid-century Fourteenth Amendment constitutional case law. Looking back today, many would add what Baker and McConnell did not explicitly put in their brief: that those who oppose same-sex marriage are bigots, just as those who opposed interracial marriage were bigots. Others would protest, as those who faced charges of bigotry over opposition to interracial marriage or racial integration often did, that they are motivated by sincere religious beliefs, and thus are not bigots; they might even flip the script and charge their ideological opponents with antireligious bigotry.

It is here, with the rhetoric of bigotry and its intersection with constitutional law and religion, that Linda McClain enters into a fascinating and provocative study with ongoing relevance today. The political, cultural, and legal issues at stake in the cases of Loving and Baker are at the heart of McClain's inquiry, marked by an interrogative title, Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. The conceptually and historically intertwined issues of race, sex, and religious discrimination in U.S. law provide the dominant frame for McClain's analysis. Over nine chapters, she traces the rhetoric of bigotry across a set of historical debates over marriage and civil rights in the United States, canvassing mid-century debates about segregation and integration in American social and civic life and focusing, in particular, on charges of bigotry stemming from religious opposition to interfaith, interracial, and same-sex marriage.

“Bigotry is a fraught and contested term,” McClain notes early on (2). There is no agreed upon definition of what constitutes bigotry, she acknowledges, yet the rhetoric of bigotry is nonetheless an important feature of American public life. The concept of bigotry implicates important political, legal, and philosophical questions: Are we obligated to call out bigotry when we see it, or does civility demand that we silently pity the bigot? Are there any transhistorical standards of what constitutes bigotry, or is bigotry a historically contingent category? Do religious motivations or general moral sincerity lessen or protect against the charge of bigotry? Is bigotry a kind of character trait or psychological disposition, such that one is either a bigot or is not? How, in short, should we understand the rhetoric of bigotry—its meaning and purpose and its underlying reality—in American politics and law?

In McClain's presentation, myriad questions stem from one of three principal puzzles about the rhetoric of bigotry. The first puzzle is about the conceptual relationship between bigotry and conscience, whether the charge of bigotry relates to the motivation of a belief or only its content. The second puzzle is about the relationship between bigotry and time, what McClain calls the forward-looking and backward-looking dimensions of bigotry. The final puzzle is whether the bigot represents a discrete character or psychological type, such that it would be accurate to think of bigots among us, or whether bigotry is something to which we are all susceptible to some degree.

After analyzing these puzzles through detailed narrative explorations, McClain offers her conclusions: First, bigotry is about content and not motivation. Sincere beliefs, buttressed by an appeal to religion or to conscience, can still be bigoted. Second, it may be possible to identify a certain belief or practice as bigoted only after a societal consensus has formed. What constitutes bigotry is in this way contingent on historical circumstances. Third, bigotry is not a distinct character trait but is the result of normal cognitive processes that create biases (whether overt or implicit) that can be identified and addressed. We are all, to some extent, susceptible to bigotry. Each conclusion carries with it a practical political and legal implication for our present controversies.

One implication is that if sincere moral and religious beliefs can still be bigoted, then appealing to religion or conscience in ongoing debates about the reach of antidiscrimination laws is a distraction. Quoting approvingly from an article in Northwestern University Law Review, McClain concludes: “‘The question in a discrimination case is not whether any particular person should face moral condemnation as a bigot,’ but whether there is discrimination that has caused harm to a person” (213). If acting on a certain belief causes harm, then the government has the authority to limit your ability to act on that belief, no matter how sincere or religious the belief may be.

Another implication is that what constitutes bigotry changes over time. Indeed, “the element of time is often critical to contests over what is or is not bigoted” (213). This insight about time undergirds McClain's progressive approach to constitutional interpretation in which new social mores give way to judicially expanded interpretations of constitutional rights, an approach exemplified by Justice Anthony Kennedy's opinions about the meaning of the Fourteenth Amendment's protections for “liberty” and “equality” across a range of issues, including those involving sexual orientation and antidiscrimination ordinances (Romer), antisodomy statutes (Lawrence), and constitutionally required recognition of same-sex marriage (Windsor and Obergefell).Footnote ⁹

A final implication is that there is no sense in speaking of the bigot as a distinct character type, since prejudice results from normal cognitive processes. We all struggle with biases, McClain argues, and therefore it would be more accurate to speak of the “bigot in our brains” (216). Thinking about bigotry as a distinct character type also misses the problem of institutional or structural bias, according to McClain. The strategic payoff of this framing is that it offers “a positive, hopeful message, speaking of ‘good people’ with hidden biases: with commitment and effort, it may be possible to recognize and to work to overcome one's biases” (217).

Each of these conclusions, she suggests, can inform our thinking about current issues. To drill down into one particular example with contemporary relevance, the Christian cake baker or photographer who does not want to participate in the celebration of a same-sex wedding ought not to be exempted from general antidiscrimination laws on account of religion or conscience, McClain insists (210). Evolving understandings of the requirements of equal citizenship demand that society enforce these new moral norms against religious dissenters or conscientious objectors, and enforcing these norms in the marketplace does not necessitate or require any moral condemnation of dissenters as bigots. Rather, McClain argues, the public discussion about antidiscrimination law should simply table the question of bigotry and the related question of religious sincerity and should instead focus on the requirements of citizenship in a pluralistic society that has evolved over time. This was true of the debates about interfaith marriage (chapter 3), racial integration and interracial marriage (chapter 5), Title VII of the federal Civil Rights Act (chapter 6), and same-sex marriage (chapter 7), and it remains true of the contentious issues related to transgender identity today (chapter 8), according to McClain.

McClain's conclusions provoke further theoretical questions that can fruitfully be explored in the context of the Minnesota case initiated by Baker and McConnell in 1970, which McClain mentions in passing to demonstrate the way historical actors may seem unaware of new insights that become obvious to us only in retrospect (141–42). In this case, McClain notes, the justices of the Supreme Court did not see any basis for an analogy between a legal prohibition of interracial marriage and the longstanding legal definition of marriage that included the sexual union of a man and woman as one of marriage's essential attributes. The Supreme Court gave us a unanimous decision in Loving v. Virginia and then, just a few years later, also gave us a unanimous decision in Baker v. Nelson with apparently no sense of contradiction or tension. Moral learning, McClain concludes, takes time.

The concept of moral learning, however, presents its own puzzle, and it is here where I would like to push a bit on McClain's argument. The oft-stated reason why the law of every U.S. state either presumed or explicitly affirmed that marriage entailed the sexual union of a man and a woman is because marriage was an institution oriented toward procreation and rearing of children in a family headed by a mother and a father. Other ideal norms surrounding marriage made sense in light of this public purpose. The law presumed that the marital union would be sexually consummated and that it would be permanent and sexually exclusive, for example, making it more likely for children to live with both a mother and a father. The argument Baker and McConnell made against this definition of marriage is the same argument that carried the day in the last decade: that procreation is not really what marriage is about because “the state does not put upon heterosexual married couples a condition to prove capacity or declared willingness to procreate” and that discriminating on the basis of sex in marriage is therefore analogous to discriminating on the basis of race in marriage.Footnote ¹⁰ If that is true, then both are prejudiced and bigoted. Both are irrational. Both deny individuals equal citizenship status.

Still today, however, some dissent from the new conception of civil marriage and continue to defend the rationality of the law's traditional definition of marriage as essentially a conjugal union of a man and woman.Footnote ¹¹ Given the deep disagreement about the nature and purpose of marriage in our culture, how do we adjudicate between these competing conceptions of marriage? How do we know whether our own normal cognitive processes have led us to embrace irrational prejudices, whether we owe our view to the bigot in our brains? One possible answer is that careful and deliberate reasoning will help us come to a conclusion, and that the reasonableness of one's view would be a defense against the charge of bigotry or prejudice. Yet McClain makes clear that “ideas about what is reasonable and unreasonable change over time in light of moral learning and new insights, typically sparked by social movements seeking justice” (213). Reason is not immune from historical processes, she indicates; it does not stand outside of history. One lesson McClain draws from the struggle over civil rights and marriage is that “the element of time is often critical to contests over what is or is not bigoted” and by extension what is or is not reasonable or just (213).

Herein lies the ambiguity in McClain's analysis. In her discussion of the backward and forward-looking dimensions of bigotry, she privileges the element of time and emphasizes evolving understandings of justice. Simultaneously, McClain discounts appeals to reason, nature, religious authority, or any transcendent moral principle, because of the historic association of those kinds of arguments with opposition to civil rights (126). Indeed, she offers examples of religious and political leaders whose prejudices led them to defend morally dubious practices such as racial segregation while invoking religious authority or appealing to an allegedly unchanging moral principle (see, for example, chapters 2 and 4). It would seem all the more reason, then, to affirm the reality of some transhistorical moral standard by which we could say that people who appealed to religion, conscience, or reason to defend unjust practices were truly mistaken. McClain's analysis implies that there are no such unchanging moral principles; without unchanging moral principles, however, we are left only with changing, evolving moral principles that are merely conventional. If that is the case, what motivates reform movements to change existing conventions? What standard, outside of convention, provides the goal of reform? Can the advocates of reform be reasonable when the dominant voices in society say they are unreasonable? Can convention ever be wrong, and the unconventional individual right? If reason and justice can be identified only after a societal consensus has formed, then does might, after all, make right? Is cultural power all that matters?

These questions—and the answers we give to them—are particularly relevant for how we understand McClain's use of the concepts of moral progress and backsliding. To determine whether a specific social change constitutes progress or backsliding, there must be some unchanging standard to measure it against. If progress is whatever we happen to become, then there is no such thing as backsliding. Consider, for example, how quickly the conversation about racial justice has changed in our society in just the last few years. “The only remedy to racist discrimination,” Ibram Kendi maintains, “is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”Footnote ¹² Does the heightened emphasis on race-conscious antiracism and its attendant rejection of enlightenment liberalism represent moral progress or moral backsliding?Footnote ¹³ How do we know? Consider, along similar lines, those who advocate dismantling the legal structure of marriage altogether. The philosopher Elizabeth Brake argues that “privileging the couple, married or unmarried, sustains a distinctive type of discrimination” that unjustly marginalizes people who refuse to live by the bourgeois norms that developed around a distinctive heterosexual vision of marriage that is now legally obsolete.Footnote ¹⁴ There is, Brake says, a distinctive social harm caused by dyadic and amatonormative marriage laws, even where they allow same-sex couples to marry.

Is the dissolution, or minimizing, of marriage a mark of progress or backsliding? Are today's bourgeois defenders of marriage as a romantic coupling of any two people on the right, or wrong, side of history? What about today's antiracists? According to McClain's analytic framework, the answers will depend on how our cultural and constitutional conventions develop and whether new insights are sparked by new social movements seeking new conceptions of justice. Once there is a “general agreement that such past beliefs and practices were bigoted,” then we may look back and wonder how anyone could have “seriously defended them” (2). The implicit underlying moral anthropology of this kind of analysis, particularly about the dimension of time, is one in which reason does not provide insight into any transhistorical truths. There are no unchanging moral principles to be discovered by reason; there are only those moral principles we collectively affirm. But which principles should we collectively affirm, and which conception of justice should we advocate for in the public square? Those are the questions I am left pondering after reading Linda McClain's provocative, challenging, and elucidating meditation on the rhetoric of bigotry in U.S. law and politics.