Prejudice, Moral Progress, and Not Being on the Wrong Side of History

This chapter argues that evaluating the arguments the parties made in Loving v. Virginia (1967), the iconic case in which the Supreme Court struck down Virginia’s anti-miscegenation law, aids in understanding puzzles about bigotry. Virginia attempted a modern, sociological defense of its racist law. Loving illustrates the role of generational moral progress in constitutional interpretation: laws justified by appeals to nature, God’s plan for the races, and children’s well-being were repudiated as rooted in racial prejudice, intolerance, and white supremacy. The chapter then considers Loving’s crucial (but contested) role in constitutional challenges to bars on same-sex marriage, first analyzing the successful challenge to Virginia’s defense of marriage law. It then analyzes the majority opinion in Obergefell v. Hodges, holding that same-sex couples have a fundamental right to marry; the dissenters argued Loving was inapt. The chapter concludes by discussing the role of moral progress and new insight in constitutional interpretation.

Sincere Believers, Bigots, or Superstitious Fools?

This chapter traces the Supreme Court’s evolving approach to the constitutional rights of LGBTQ persons and whether moral disapproval justifies discriminatory criminal or civil laws. It evaluates the bigotry versus morality dynamic in these cases. Justice Kennedy never referred to bigotry in his landmark opinions in Romer v. Evans, Lawrence v. Texas (overruling Bowers v. Hardwick), United States v. Windsor, and Obergefell v. Hodges, yet the dissenters claimed he branded traditional believers as bigots and their beliefs about sexuality and marriage as bigotry. The chapter considers the argument that animus, a term Kennedy used, is the same as bigotry. Kennedy’s Obergefell opinion nowhere mentions animus or bigotry, focusing on the harmful effects of laws barring same-sex couples from marriage. Although Kennedy referred to religious opponents of same-sex marriage as sincere, dissenters countered that his opinion invited treatment of believers as bigots, setting the stage for future threats to their religious liberty.

Our Spirit Is Not Narrow Bigotry

This chapter studies how arguments about bigotry, conscience, and legislating morality featured in legislative debate over the Civil Rights Act of 1964, particularly the public accommodations provision (Title II). President Lyndon B. Johnson urged clergy to support the act and help the United States overcome bigotry. Religious leaders testified for and against the law. Lawmakers and witnesses supporting the law insisted that the nation’s conscience demanded that Congress pass a law to end bigotry and racial discrimination. Opponents referred to bigotry in multiple ways: they argued that segregation reflected natural difference and God’s plan, not bigotry; that people had a right to be bigoted; and that the act’s supporters were the real bigots. The chapter concludes with two Supreme Court cases upholding Title II relevant to later constitutional challenges to civil rights laws protecting LGBTQ persons: Heart of Atlanta v. United States and Newman v. Piggie Park Enterprises.

Conclusion

The chapter recaps the book’s basic claim that in the United States, there is both strong agreement over condemning bigotry as inconsistent with American values and sharp (often partisan) disagreement over bigotry’s forms, and who has the moral authority to call it out. Charges of bigotry are answered with charges of political correctness and countercharges of bigotry. It illustrates these claims with the example of a recent Congressional resolution condemning anti-Semitism, Islamophobia, racism, and other forms of bigotry. The book then offers some lessons about the rhetoric of bigotry and its puzzles based on prior chapters’ examination of controversies over marriage and civil rights law. It applies those lessons to ongoing conflicts over the legal rights of transgender persons. It then considers why the rhetoric of bigotry is not more common in discussing sexism and misogyny. Finally, it evaluates whether and when it is useful—even imperative—to call out bigotry.

Interfaith Marriage as a Protest Against Bigotry?

This chapter revisits controversies in the 1950s and 1960s over interfaith marriage. Commentators debated whether objections to interfaith marriage stemmed from bigotry and intolerance or legitimate grounds, such as lower rates of marital success. The chapter reviews diagnoses of such marriages as resulting from assimilation and increasing social contact among Protestants, Catholics, and Jews. Some contended that young people intermarried to protest against bigotry. Cautions against interfaith marriage—particularly mixed marriage, where spouses retained their distinct religions—appealed to science to fortify religious arguments. Objectors warned of harms to spouses’ conscience and to children’s sense of identity. Comparing diagnoses of both interfaith and interracial marriage as problem marriages, the chapter discusses Albert I. Gordon’s Intermarriage (1964), which featured in Virginia’s defense of its anti-miscegenation law in Loving v. Virginia (1967). The chapter ends by considering early twenty-first-century analyses of interfaith marriage.

From the Bigot in Our Midst to Good People with Hidden Biases

This chapter examines two significant stages in the scientific study of prejudice and intergroup relations as a resource for understanding bigotry. It illustrates the first, the post–World War II period, with Gordon W. Allport’s foundational The Nature of Prejudice (1954). The chapter explores the tension in Allport’s work between viewing the bigot as a distinct personality type and viewing prejudice and stereotypes as the outgrowth of ordinary cognitive processes. It analyzes other relevant features of Allport: the social contact hypothesis; the argument that “stateways” (antidiscrimination law) could change “folkways” by enlisting conscience to fight prejudice; and religion’s role in fostering but also condemning bigotry. The chapter explains how social scientists measured prejudice through people’s attitudes toward intermarriage. The second stage the chapter evaluates is study of implicit (or hidden) bias and unconscious cognition (“the bigot in your brain”). Such study maintains that people can recognize and fight those biases.

Who’s the Bigot?

This chapter uses two advice columns, fifty years apart, to introduce the argument that the increasing turn to the language of bigotry poses puzzles that demand attention. Despite evident agreement that bigotry in all its forms is wrong and contrary to national ideals, political battles in the United States over “calling out” bigotry are fraught and polarizing; people disagree over bigotry’s forms. Conflicts during the 2016 presidential election and the Trump presidency provide examples. The chapter introduces several puzzles about bigotry that later chapters will address by analyzing controversies over interfaith, interracial, and same-sex marriage; racial desegregation; and civil rights laws. That study reveals recurring patterns of argument. The chapter also contends that past examples of bigotry on which there is now consensus—such as anti-Semitism and racism—inform judgments about newer forms, as in the constitutional conflicts over same-sex marriage and conscience-based objections to civil rights laws.

This Isn’t 1964 Anymore—Or Is It?

This chapter analyzes Masterpiece Cakeshop v. Colorado Civil Rights Commission, which held that the Colorado Civil Rights Commission showed animosity and hostility toward the religion of baker Jack Phillips. This case shows that rhetoric matters: the commissioners drew criticism for their comments about appealing to religion to justify discrimination. The chapter analyzes the arguments made in Masterpiece, highlighting competing appeals to Obergefell and the Civil Rights Act of 1964. Kennedy’s majority opinion enlisted civil rights precedent Newman v. Piggie Park Enterprises on the general rule that religious objections to gay marriage do not allow business owners to deny service to customers protected by public accommodations law. Masterpiece indicated guidelines for resolving future cases. The concurring opinion by Justice Bosson in Elane Photography, LLC v. Willock provides a valuable model: it speaks respectfully about religious beliefs, while also explaining what tolerance demands in the public square as the “price of citizenship.”

You Are Waging a Fight of Morality and Conscience

This chapter examines religious arguments criticizing and supporting Brown v. Board of Education (1954), which ruled “separate but equal” unconstitutional in public education. The chapter contrasts competing theologies of segregation and integration. It shows that segregationists rebutted charges of bigotry by appealing to morality, conscience, and scripture to condemn race mixing and intermarriage. Integrationists enlisted conscience to argue that segregationists distorted scripture and morality. Both sides, the chapter shows, also appealed to science, reason, and American political ideals. The chapter highlights the role of these competing theologies in controversies over Brown by revisiting a case study of the competing responses of the clergy to the 1957 school desegregation crisis in Little Rock, Arkansas. It then examines how Dr. Martin Luther King Jr. and other pro–civil rights clergy spoke of redeeming the segregator and rescuing the bigot. Civil rights clergy also worried about the church being on the wrong side of the desegregation issue.