The Rhetoric of Bigotry and Conscience in Battles Over 'Religious Liberty v. LGBT Rights'

Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William S. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press, Forthcoming)

Boston Univ. School of Law, Public Law Research Paper No. 18-05

19 Pages Posted: 21 Mar 2018

See all articles by Linda C. McClain

Linda C. McClain

Boston University - School of Law

Date Written: March 20, 2018

Abstract

Charges, denials, and countercharges of “bigotry” are a familiar feature in debates over the evident conflict between LGBT rights and religious liberty. A frequent claim is that religious individuals who reject the extension of civil marriage to same-sex couples and seek conscience-based exemptions from state public accommodations law that protect against discrimination on the basis of sexual orientation are being “branded” as bigots. The rhetoric of bigotry raises a number of puzzles. Is sincerity or the appeal to conscience a defense to charge of bigotry? Is a charge of bigotry inferred simply from asserting that society should learn lessons from past civil rights struggles: that now-repudiated forms of discrimination – on the basis of race and sex – are relevant to protecting against discrimination on the basis of sexual orientation? Or from comparing past appeals to conscience and religious beliefs against race mixing to oppose civil rights laws with present appeals to religious beliefs about marriage to oppose civil marriage by same-sex couples or providing them goods and services? Are these analogies inapt because today’s sincere religious believers have nothing in common with yesterday’s segregationists? Does the label “bigot” better apply – as some contend -- to civil rights commissioners and judges who show “intolerance” toward today’s sincere believers by refusing them exemptions and driving from the public square? Does the rhetoric of bigotry serve any useful purpose or is it needlessly provocative? This chapter evaluates the rhetoric of bigotry in two contexts: (1) the controversial U.S. Commission on Civil Rights Report, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties (2016) and (2) arguments made by the parties and their amici curiae (“friends of the court”) in the closely-watched case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, now before the U.S. Supreme Court.

Keywords: bigotry, conscience, marriage, religious liberty, toleration, pluralism, public accommodations, Civil Rights Act of 1964, sexual orientation, race discrimination, LGBT rights, exemptions

Suggested Citation

McClain, Linda C., The Rhetoric of Bigotry and Conscience in Battles Over 'Religious Liberty v. LGBT Rights' (March 20, 2018). Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William S. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press, Forthcoming), Boston Univ. School of Law, Public Law Research Paper No. 18-05, Available at SSRN: https://ssrn.com/abstract=3144478

Linda C. McClain (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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