BIGOTRY, CIVIL RIGHTS, AND LGBTQ CHILD WELFARE.

• Author: Woods, Jordan Blair
• Position: Annual Book Review Issue

WHO'S THE BIGOT? LEARNING FROM CONFLICTS OVER MARRIAGE AND CIVIL RIGHTS LAW. By Linda C. McClain. New York: Oxford University Press. 2020. Pp. 230. $39.95.

INTRODUCTION

On November 12, 2020, Justice Samuel Alito delivered a keynote address at the Federalist Society's annual convention (1) that caught the attention of national media. (2) Justice Alito warned that individual liberty was in danger. (3) His remarks covered several topics, including COVID-19 and religious liberty, freedom of speech, the Second Amendment, and conflicts between religious liberty and same-sex marriage, (4) with notable mention of the Court's recent decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission (5) and Obergefell v. Hodges. (6)

In his comments on religion and same-sex marriage, Justice Alito emphasized the value of tolerance and rejected charges of bigotry. For instance, in discussing Masterpiece Cakeshop, Justice Alito stressed, "For many today, religious liberty is not a cherished freedom. It's often just an excuse for bigotry, and it can't be tolerated, even when there is no evidence that anybody has been harmed." (7) He continued, "The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs." (8) Discussing Obergefell, Justice Alito stated, "You can't say that marriage is the union between one man and one woman. Until very recently, that's what the vast majority of Americans thought. Now it's considered bigotry." (9)

The timing of Justice Alito's keynote address is noteworthy. It was delivered the week after Election Day, the same week that Justice Amy Coney Barrett took part in her first oral argument after joining the high court. (10) It was also one week after the Court heard oral arguments in Fulton v. City of Philadelphia, in which a faith-based child placement agency that refuses to license same-sex couples as foster parents challenged the city's refusal to renew the agency's contract. (11) In the leadup to the Fulton decision, scholars and commentators warned that the case could have major consequences for the balance between religious liberty claims and antidiscrimination protections for LGBTQ people. (12) Although the Court in Fulton ultimately ruled against the city on narrower grounds, (13) the trajectory of the case offers important lessons for the future.

Professor Linda McClain's (14) excellent new book, Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, provides valuable insight into the use of the rhetoric of bigotry in conflicts over marriage and civil rights law, like those in Justice Alito's remarks. The heart of the book ambitiously traces how people understood and discussed bigotry in various struggles over marriage and civil rights dating back to the mid-twentieth century, including interfaith marriage, segregation and integration, the Civil Rights Act of 1964, antimiscegenation laws, and the Court's evolving approach to constitutional rights for lesbians and gays, including same-sex marriage. McClain's analysis draws on a wide range of sources, including congressional debates and testimony, judicial opinions, arguments made by advocates and litigants, social science literature, and newspapers, magazines, and other media (p. 13). Her analysis reveals recurring patterns in arguments regarding marriage and civil rights, including appeals to conscience and sincere beliefs meant to rebut charges of bigotry (p. 5). The book offers meaningful lessons about the rhetoric of bigotry and its puzzles for civil rights struggles, especially in this uniquely polarized period in United States history. (15) Overall, McClain's book makes an original contribution to our understanding of bigotry, especially in struggles at the intersection of family law and civil rights.

In this Review, I aim to highlight the strengths of Professor McClain's rich and insightful book while also calling attention to the ways in which McClain's framework helps us understand the pattern of arguments in Fulton, the latest conflict over marriage and the scope of civil rights before the Supreme Court. Fulton provides a fresh lens through which to view McClain's arguments, the book's publication having preceded the Court's grant of certiorari in Fulton by one week. (16) McClain's unique perspective also has much to offer in enhancing our understanding of LGBTQ child welfare issues as civil rights struggles. Although the child welfare system has long been the target of full-throated critiques, (17) problems in child welfare have not been historically framed as civil rights issues. (18) In the past two decades, however, scholars have increasingly turned to civil rights discourse in order to frame child welfare problems, in both LGBTQ and non-LGBTQ contexts. (19) In connecting McClain's book to legal scholarship on LGBTQ child welfare and the Fulton controversy, this Review illustrates the importance of viewing LGBTQ child welfare issues through a civil rights lens. Many of the themes discussed in McClain's book reemerge in Fulton, especially in briefs and oral argument. (20) As a result, McClain's important work provides a framework for understanding how rhetoric involving bigotry is being harnessed by both sides of the ongoing legal battles over broad religious exemptions and LGBTQ child welfare.

This Review proceeds in three Parts. Part I articulates the book's thesis and core arguments. Part II situates LGBTQ child welfare literature in the conflict between civil rights and religious liberty. Part III then extends McClain's analysis to trace the rhetoric of bigotry in the Fulton controversy.

1. EXAMINING BIGOTRY

   1. Sites of Contestation over Bigotry

      Early in the book, McClain lays a foundation for her core arguments by introducing four puzzles about bigotry. First, does a charge of bigotry concern the motivation behind a belief or an act? (p. 6). Second, does the content of a belief, as opposed to its motivation, invite the label of bigotry? (p. 8). Third, how does time factor into judgments about bigotry, and more specifically, how does the scope of what is considered bigotry change with societal shifts about what is unreasonable or unacceptable? (p. 9). Fourth, does the label of "bigot" suggest a type of character with distinct psychological or moral traits? (p. 11). After these puzzles are situated in relation to social science research on prejudice in chapter 2, the heart of the book examines these puzzles by tracing the rhetoric of bigotry in past and present controversies over marriage and civil rights.

      1. Interfaith Marriage

         The first controversy that McClain examines is the debate over interfaith marriage in the 1950s and 1960s (chapter 3). Looking to prominent secular and religious writings, McClain focuses on whether opposition to interfaith marriage was framed in terms of bigotry or other considerations (p. 48). McClain describes how many secular and religious commentators explained the growth of interfaith marriage as the inevitable outcome of increased immigration, assimilation, and social contact in colleges and the workplace (p. 51). Bigotry was also relevant to young people's motivations to enter into interfaith marriages (p. 50), which some commentators surmised was a form of protest against bigotry (pp. 56-57).

         Some commentators, however, pushed against the view that opposition to interfaith marriage was solely based on "intolerance at odds with the American creed" (p. 59). Instead, many objectors rested their opposition on "legitimate" claims that interfaith marriage threatened marital happiness, the preservation of religious and ethnic heritage, duties of conscience, and children's well-being (p. 50). At the same time, McClain explains that not all objections to interfaith marriage were necessarily benign, and prejudice often played a role in animating objections to interfaith marriage (pp. 63-64).

      2. Theologies of Segregation and Integration

         Next, McClain turns to the debate over racial segregation, focusing primarily on the years after the Supreme Court's 1954 landmark decision in Brown v. Board of Education. (21) Looking to political speeches, official positions taken by religious groups, sermons, public addresses, and writings by clergy (p. 77), McClain illustrates how religious and political leaders who opposed desegregation often grounded their views in biblical, scientific, and historical sources, rather than language of bigotry and prejudice (p. 79, 82). For instance, opponents of desegregation appealed to scripture to justify ideas of racial difference and attempts to preserve racial purity (p. 83). They also relied on scientific ideas based on eugenic premises to rationalize white supremacy and frame racial mixing as a threat to the white race (pp. 84-85). In doing so, opponents of desegregation framed race consciousness, and thus segregation, as a necessary virtue rather than as a bigoted belief (p. 80).

         Conversely, religious and political leaders who opposed segregation often looked to biblical, scientific, and historical sources to condemn racial bigotry. Specifically, McClain describes how leaders stressed the universal nature of the Christian faith and appealed to religious conscience to reject myths of racial difference (pp. 87-88). They further denounced the idea that science supports racial segregation or racial prejudice and supported their views with updated scientific studies (p. 91). Leaders who opposed segregation expressed concerns about being on the wrong side of history and emphasized that racial discrimination was inconsistent with American constitutional ideals (pp. 89-90).

         At the same time, the discourse of "bigotry" was not entirely absent from these debates over racial segregation. As McClain discusses, many religious and political leaders who opposed desegregation emphasized the need to respond to frequent charges of bigotry (p. 81). Conversely, some leaders who opposed...