WHO'S THE BIGOT? LEARNING FROM CONFLICTS OVER MARRIAGE AND CIVIL RIGHTS LAW.

• Author: Sepinwall, Amy J.

WHO'S THE BIGOT? LEARNING FROM CONFLICTS OVER MARRIAGE AND CIVIL RIGHTS LAW. By Linda C. McClain.* New York, NY: Oxford University Press. 2020. Pp. ix + 304. $39.95 (hardcover).

In Who's the Bigot? Learning from Conflicts Over Marriage and Civil Rights Law, Linda McClain offers a fascinating study of the rhetoric around the term "bigot." Drawing from an impressively vast array of sources--including parenting guides and marriage manuals, sermons and speeches, legislative histories and court battles--McClain traces the use of the term through some of the most important civil rights battles in this and the last century. She focuses in particular on marriage, putting the controversies surrounding interfaith and interracial marriage in conversation with the controversies around same-sex marriage. The book is lucid, vital, highly readable, and brimming with insights into the minds of the various parties in the culture wars.

McClain seeks to recover, and draw out the tensions between, the way people use "bigot" and its cognate terms in discourse. As she says, her "method is to investigate [the] puzzles [around the term] by tracing how people spoke about bigots and bigotry in a series of past and present controversies over marriage and civil rights" (p. 18). Her results are intriguing and important. They reveal the ways in which we have shifted our moral attitudes, such that norms once considered decent (e.g., segregation in places of public accommodation; beliefs that homosexuality was evil and perverse) are now considered beyond the pale. They also allow us to gain clarity on the rhetorical force of leveling a charge of bigotry: is the imputation likely to promote moral progress or does it instead threaten to end conversations that might otherwise conduce to that progress? McClain's insights also invite us to think about the relevance of bigotry to today's efforts to combat inequality: should we focus on prejudice or instead systemic injustice and unconscious bias?

All of this is eminently valuable. The sociologist, rhetorician, and historian will find much to satisfy their curiosity here. At the same time, the focus on rhetoric can have an unsettling effect on the reader keen to know how the relevant terms ought to be used. What is the conceptual relationship between "bigotry," "animus," and "discrimination"? What are the necessary and sufficient conditions for conduct to count as an instance of one or more of those terms? And, once we have one or more of these species of conduct on our hands, how should we understand the moral responsibility of the state if it fails to condemn or eradicate the troubling conduct?

These are obviously fraught and difficult questions. Many philosophers and legal scholars have aimed to resolve them. (2 )I will not promise anything so grand. But I do aim to make some progress on each. I begin in Part I with an effort to conceptualize the relationship between animus, bigotry, and discrimination. Concluding that bigotry need not involve animus and that discrimination need not involve bigotry, I nonetheless seek to foreground the importance of bigotry in our discrimination jurisprudence. I then turn, in Part II, to the Supreme Court's decision in Bostock v. Clayton County. In Bostock, the Court held that Title VII's provisions prohibiting sex-based discrimination in employment applied to discrimination on the basis of sexual orientation and gender identity. While there is much to celebrate in that outcome, I aim to expose the ways Bostock flattens the discrimination landscape, and minimizes the injury that bigotry inflicts. Part III moves from purely private discrimination to conceiving of the role of the state therein. My aim is to gain clarity on the notion of ratification, as concerns about ratifying arise among both private and state actors. Part IV concludes.

1. WHAT IS BIGOTRY?

   McCain's book provides a vast array of occasions when "bigotry" has been bandied about. (3) While one might have thought that only those who target a historically oppressed group count as bigoted, McClain intriguingly recovers instances when each side of the culture wars charges the other with bigotry. In this melee, segregationists or opponents of same-sex marriage are bigoted against Blacks or LGBTQ+ individuals, while progressives advocating for rights to marry whomever one pleases are bigoted against those whose religious convictions will not permit them to countenance interracial or same-sex marriage. (4)

   At the same time, McClain explores whether all of these uses of bigotry are apt. Two questions concern her specifically. First, where sincere religious belief grounds opposition to interracial or same-sex marriage, does that belief obviate a charge of bigotry? Second, does bigotry require that one act from a bigoted motive or is it sufficient that one treat two individuals differently solely on the basis of an identity-defining characteristic (race, sex, religion, sexual orientation, etc.)? This second question is broader than the first since it allows that the source of the belief leading to differential treatment need not reside exclusively in religion. For example, a foreman who denies a woman a job on a construction site out of concern for the woman's genteel nature operates with a benign albeit secular belief. (5) Notwithstanding this difference, I shall treat the two questions together, asking simply, does bigotry require animus? And if not, is all differential treatment, or discrimination, bigoted, or does "bigotry" instead pick out a subset of discriminatory conduct? If the latter, what is the hallmark of that conduct?

   As a first pass, I shall understand "discrimination" to describe any form of unfavorable treatment as regards access to public accommodations, employment, scarce resources or opportunities, etc., where that unfavorable treatment is grounded in the disfavored person's membership in a status-based group. To locate the ground of unfavorable treatment in group membership is already to diverge from understandings of discrimination that see it as an individual, rather than a group-based, harm. (6) On these individualist accounts, discrimination arises whenever a person is subject to unfavorable treatment on the basis of an arbitrary and ascriptive characteristic. To my mind, two considerations militate against the individualist understanding. First, it would count unfavorable treatment based on, say, the day of the week on which one was born, to be a form of discrimination. But common usage suggests that it would be strained to describe unfavorable treatment so grounded as "discrimination." That term seems to connote a subset of unfair treatment--namely, treatment resulting from one's possession of a protected trait, where the traits warranting protection are those that correspond to the distinguishing features of protected groups. (7) Second, the differential treatment that should concern us should disparage the target of discrimination because of the status-based characteristic. (8) We will see that Bostock poses a troubling challenge to this second consideration in what follows.

   The most obvious, and obviously wrong, instances of discrimination involve animus. (9) I shall understand "animus" in the context of discrimination (10) in the following way:

   A harbors animus toward B if and only if:

1. A believes B to be inferior because of B's membership in a status-based group: (11)

2. A is disposed to act unfavorably toward B because of this belief; and

3. Where A acts on that disposition, A intends to set back B's interests. (12)

   Given these three conditions, benign discrimination cannot count as animus. Thus, the foreman who refuses to hire women out of concern for their sensibilities does not harbor animus. This is not to deny that his belief about women's genteel natures isn't, at some level, a belief in women's inferiority. He might associate gentility with a softness that, even while virtuous, is not as honorable as whatever it is that makes men strong. The important feature in the example, though, is that the foreman does not intend to set back the woman's interests in refusing to hire her. (13) To the contrary, he may well believe himself to be protecting, and thereby promoting, her interests. Paternalistic discrimination is just a species of benign discrimination. (14)

   Does bigotry require animus? To the extent that McClain weighs in at all, she appears to suggest that it does not. (15) She reports that, at least in the marriage context, the Supreme Court's jurisprudence has moved from "condemning bad motives-animosity--to condemning practices whose social meaning is to deny equal liberty to groups who are worthy of the status of equal citizenship" (p. 211). I am inclined to agree that bigotry does not require animus." (16) McClain provides vivid examples in early- and mid-twentieth-century statements describing Black people as less evolved than white people. (17) Those who held these beliefs likely satisfied the first two conditions of animus adduced above, but not all of them need have satisfied the third condition. In particular, they would not have satisfied it if their differential treatment was not pursued in order to set back the interests of Black people. It is arguable that some of them sincerely believed that they were promoting segregation as a matter of securing the best interests of both Black and white people. (18)

   McClain seems to go further though, suggesting that bigotry can arise not only where condition (III) is absent but also where condition (I) is absent. Here we might distinguish between two cases. The first involves discriminating on the basis of demeaning stereotypes. I take the case of excluding women from construction work to be an example. While a belief in women's refinement might appear benign and perhaps even flattering, women often find it patronizing, (19) and the limits it imposes on their opportunities oppressive. (20) Ruth Bader...