In Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, Linda McClain has written the first serious, book-length examination about the role that the label bigot has played in fracturing an already fractured society. McClain clinically examines bigotry's impact on the understanding of religion, gender, and race in the United States. To understand the significance of the book, an important place to start is to ask why people are so quick to call each other bigot or to say that another claims a license to discriminate.
Culture war fights are existential. They implicate our deepest commitments and identities. Today, a red-blue fault line runs across the United States.Footnote 1 Same-sex couples may marry everywhere, but in more than half of the states, they can be evicted from their homes or fired by a small employer for no reason other than being gay or transgender.Footnote 2 Across much of the country, LGBTQ individuals still feel unsafe and unsupported, or worse, under attack.Footnote 3 LGBTQ people report being bullied, fired, denied jobs or promotions, and excluded from housing at higher rates than do heterosexual people, and they worry about the fragility of the gains made during their lifetimes.Footnote 4
With striking parallelism, many religious communities and persons also fear for the future and believe they cannot fully be themselves.Footnote 5 Religious people fear they will not be able to, or cannot currently, “preserve what they see as religious integrity in their own spaces,”Footnote 6 without being labeled as bigots. Knowing that a shrinking slice of Americans share their perspectives,Footnote 7 they fear a loss of stature, respect, and the ability to live with integrity.
McClain fairly captures the sentiment of social conservatives who feel under threat, like the supporters of Jack Phillips, the baker in Masterpiece Cakeshop.Footnote 8 In that case, shop owner and baker Jack Phillips declined on religious grounds to decorate a cake honoring the wedding of a same-sex couple, despite Colorado's public accommodations law banning discrimination on the basis of sexual orientation and gender identity. Finding discrimination, Colorado imposed a penalty on Phillips to do comprehensive staff training, change his business practices, and file quarterly compliance reports for two years. The Colorado Court of Appeals sustained the sanctions. Three years later, the U.S. Supreme Court, in a 7–2 decision, reversed and erased the penalties Colorado imposed on Phillips. Writing for the majority, Justice Anthony Kennedy latched onto damning statements made by one commissioner, unrebutted by the others, that the baker's religious explanation for declining to serve the couple was a “despicable piece[] of rhetoric,”Footnote 9 no different than justifying the Holocaust or slavery. The government should never suggest whether religious grounds for “conscience-based objection[s] [are] legitimate or illegitimate,” the Court found.Footnote 10 As the Court reiterated in its recent decision in Fulton v. City of Philadelphia: “Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.”Footnote 11
As McClain observes, analogizing Phillips’ refusal to “past religious objections to civil rights laws prohibiting race discrimination” rankles his supporters (192). They believe that this slanders Phillips and other believers as bigots. Not only is today's sincere religious believer declining to create a wedding cake or otherwise affirm same-sex marriage nothing like the racist (past or present) refusing to serve all black customers; he or she also is nothing like the homophobe refusing to serve any gay or lesbian customers (192). These charges of bigotry can have the effect of further entrenching the divide on these issues. In a new book, for instance, Phillips chronicles facing repeated lawsuits after Masterpiece Cakeshop for refusals to make transgender reveal and other cakes.Footnote 12 Masterpiece Cakeshop did not establish a right to step aside from facilitating same-sex marriages without violating nondiscrimination law, but it also did not lower the temperature in the underlying cultural conflict.
McClain rightfully resists ad hominem attacks that condemn others as bigots. She explains that “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. Thus, it is not necessary to label a religious belief bigoted or the moral equivalent of racism to affirm that government has authority to limit one's ability to act on that belief in civic life when doing so harms the rights of others (213). In clashes over competing interests, query whether charging that another person has discriminated is any less toxic than calling that person a bigot. If a person makes a specific decision that is seen legally to be discrimination, chances are that he or she will be seen as a bigot.
Now, for the record, it is possible for all people to be served on Main Street without asking small mom-and-pop wedding vendors to violate their religious convictions, as well as to navigate other culture war conflicts.Footnote 13 Finding ways to share the public square will, however, require society to back-up and ask if it can reframe its laws so that culture “war” clashes are not a war at all. Below we sketch good faith attempts to take the parties out of clashing positions in one context, adoption and foster care.
Everyone Charges that Everyone Else is Engaging in Discrimination
The United States has a kind of bigotry exhaustion: “bigotry,” “intolerance,” and “discrimination” are charges hurled routinely. One need look no further for evidence of this than the last culture war case decided by the Supreme Court, Fulton v. City of Philadelphia.
Fulton addresses a clash of interests: the rights of couples seeking to foster or adopt to be treated with dignity versus the religious liberty and conscience claims of child placement agencies to make placements “in a manner consistent with its religious beliefs.”Footnote 14 The case specifically asked if the City of Philadelphia could refuse to contract with Catholic Social Services even though the agency had never turned a couple away. The City's contractual scheme permitted the commissioner in her “sole discretion” to extend an exception to the general duty to serve all comers.Footnote 15 The Fulton Court unanimously held that “[t]he refusal of Philadelphia to contract with C[atholic] S[ocial] S[ervices] for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”Footnote 16
Being kicked out of contracting with the City without having turned anyone away struck both the majority and concurring justices as a kind of discrimination. In his majority opinion Chief Justice Roberts focused on why and how the City excluded Catholic Social Services, as he established the level of scrutiny to give to the City's decision. Using the standards established in Employment Division v. Smith, the Court noted that laws that burden religion will not be subject to strict scrutiny under the Free Exercise Clause as long as they are neutral and generally applicable.Footnote 17 However, a law is not generally applicable if it “invite[s] the government to consider the particular reasons for a person's conduct by providing ‘a mechanism for individualized exemptions,’”Footnote 18 as Philadelphia's contracting scheme did. Examining the City's stated interests, Justice Roberts concluded that “Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. As for liability, the City offers only speculation that it might be sued over CSS's certification practices. Such speculation is insufficient to satisfy strict scrutiny.”Footnote 19
More pointedly, Justice Samuel Alito labeled the exclusion as “discrimination” in his concurring opinion. The Court, according to Alito, has “never suggested that the government may discriminate against religion when acting in its managerial role. And Smith itself drew support for the neutral and generally applicable standard from cases involving internal government affairs.”Footnote 20
From the moment briefs were filed, charges of discrimination and bigotry were leveled by friends of the court. In an amicus curiae brief, the Catholic Association Foundation, joined by foster families, said: “Severing ties with programs like these, under the guise of anti-discrimination laws, is the equivalent of hanging a “Catholics Need Not Apply” sign outside of every state and local health and human services department.”Footnote 21 The New Civil Liberties Alliance charged that “Philadelphia engaged in prejudiced and discriminatory treatment of religious Americans,”Footnote 22 while on the other side groups said that a decision for Catholic Social Services would “open the door for contractors to discriminate.”Footnote 23 When the 9–0 decision came out, disappointed advocates minimized the importance of the ruling, saying it avoided a worse outcome—the overturning of Smith. If the Court had ruled more broadly, it would have, in their view, given a generalized “license to discriminate.”Footnote 24
Crafting Better Laws
All of these charges miss the point. With more than four hundred thousand children awaiting permanent homes,Footnote 25 we need all hands on deck.Footnote 26 Missing in the sterile claims made in Fulton about who has been wronged—the state (in its “managerial authority”), the agency, or the families that might be turned away—is what it means for children when prospective parents are turned away. Reading the briefs, one would think a disappointed couple simply flips to the next agency in their rolodex.
One of us, Robin Wilson, is an adopted child. As she notes elsewhere, many are quick to point out that other agencies would willingly serve couples who are turned away,Footnote 27 discounting the harm and humiliation to those couples:
As an adopted child who was fostered … I cannot imagine the kind of hurt that my mother and father would have experienced if they had been turned away when they showed up to adopt my sister and me. If an agency had said to my parents, “Mr. and Mrs. Fretwell, you are not the perfect family”—for any reason, whether because my father had little formal education or my parents were of modest means—my father would have said, “Alice, we're out of here.” And that would have been the end of the Fretwell family, meaning a home for my sister and me.
Neither can I imagine a world in which religious placement agencies do not operate. They fill an important niche—they draw forward families from their communities, they encourage adoption and foster care in terms that resonate with the families considering the hard job of becoming parents.Footnote 28
In this space, much of the “zero-sum” framing flows from the fact that the rights of one are pitted against the rights of another. An antiquated funding system for foster care services permits the state to pick winners and losers and to force families through a small set of providers. This has favored large monopolists and created a dearth of smaller providers, amplifying the scarcity that sets up culture-war clashes.Footnote 29
One key move to solving clashes that are more apparent than real is to grow the number of providers by unbundling the payment for placement services. This will allow smaller providers to perform services like the certification of families. As the Fulton court noted, “Certification as a foster parent … involves a customized and selective assessment … The process takes three to six months. Applicants must pass background checks and a medical exam. Foster agencies are required to conduct an intensive home study during which they evaluate, among other things, applicants’ ‘mental and emotional adjustment,’ ‘community ties with family, friends, and neighbors,’ and ‘[e]xisting family relationships, attitudes and expectations regarding the applicant's own children and parent/child relationships.’”Footnote 30 Many component services could be provided by counseling and mental health professionals.
A second needed reform is to place prospective adoptive and foster families in the position of selecting among qualified placement agencies, for they are making this commitment to children. U.S. Representative Chris Stewart has introduced federal legislation to do just this.Footnote 31
A third approach is to reform the system so that agencies can do their important work without tripping on conscience concerns. As the Fulton Court noted, “CSS believes that certification is tantamount to endorsement.”Footnote 32 To avoid this issue, state lawmakers are exploring the possibility that certification decisions can be made by the state, using information provided by participating agency professionals.Footnote 33 This would take agencies out of the position of “blessing” prospective families that they cannot, consistent with their faith, bless. Under this approach, the state would certify the families, using information provided to the state by agencies.
Creative solutions that keep all hands on deck can come only from legislatures and the executive branch. Courts are not well equipped to write answers that keep everybody at the table on behalf of children. Instead, courts decide the case or controversy before them in either/or terms—either the agency “wins” or the prospective adoptive families “win.” Just as courts lack the capacity and competence to write scripts for peaceful coexistence, the parties advocate their best position from existing laws that act as straightjackets and seek zero-sum decisions that are inconsistent with common ground positions.
Can We Be One America?
Culture war clashes bring us repeatedly to choices that vindicate one interest over another and foster a sense of a society that is fractured.
Across our deepest differences—our moral frameworks, religious traditions, or decisions about who we love or how we identify—America needs a culture of engagement built on mutual respect. This engagement must occur with people who are different from us—whether Jack Phillips or those who label him a bigot. And it must happen while recognizing and respecting that others’ beliefs and practices.
There is a lot that we can learn from tomorrow's leaders. The ability for people to live with integrity while others are also able to do so requires tolerance and an “energetic engagement with diversity.”Footnote 34 Millennials and Generation Z have grown up in a strikingly diverse and interconnected time. They are the generation most likely to see the advancement of LGBTQ rights as a positive development, while also embracing the value of spirituality.Footnote 35 Empirically, they are exceedingly open-minded and respectful of difference.Footnote 36 They offer “positive, practical, non-relativistic” strategies for living together, despite differences.Footnote 37 These leaders of tomorrow are sharing their experiences in how to respect “the equal prerogatives” of others with different commitments and practices.Footnote 38
While some question whether it is even possible to reach an accord in the culture wars, the experiences of younger Americans point to solidarity, not rifts. As one example, consider the perspective of Cicily Bennion:
Growing up in a small, religious town, I often heard people argue that legalizing gay marriage was a threat to my religious beliefs, that it might diminish the sanctity of the institution. I wasn't sure quite how to feel about this. Then one day, when I was a sophomore in college, I spent an afternoon at the park and there, playing with their young son, were two dads. Watching them dote on their little boy, I was struck by the beauty of their family, the way they each radiated love and joy. I knew then that their love never was and never could be a diminishing force in society. That day, I decided I wanted to be an ally.Footnote 39
Reading Bennion's story, one does not feel that America has to be fractured.
Bennion shared her experience in the context of Tolerance Means Dialogues, a student-run project of the University of Illinois and the First Amendment Partnership, made possible by the generous support of Templeton Religion Trust. The brainchild of one of us, Robin Wilson, and Yale University professor William N. Eskridge, Jr., Tolerance Means Dialogue awards scholarships and conducts frank dialogues that pull no punches.Footnote 40 Tolerance Means Dialogue is premised on the idea that younger people who have grappled with the difficulty of living together with a diverse set of peers, can provide the vocabulary and tools to respect others despite differences. The dialogues model a culture of engagement built on mutual respect without jeopardizing the ability to coexist with, and even protect, other communities.
Tomorrow's Leaders Are Writing the Next Book, Tolerance
Stories like Bennion's provide a model for what a better America can and should look like. If our goal is to instill tolerance and acceptance in everyday life, we have to ask what tolerance means. We know that the basic definition of tolerance is accepting behavior and beliefs different from our own, even ones with which we might disagree. A crucial element of tolerance is respect—to see how another person's beliefs on hard, essential questions can be as legitimate as our own. Laura Lynch explains: “With this intentional decision and an investment in the practice of tolerance, we can melt barriers and open the door to a more peaceful and mutually-beneficial society forged on the commitment to respect and equality.”Footnote 41
At the 60,000-foot level, tolerance risks being a platitude—who would disagree with its value? The real meaning of tolerance emerges from the context. And here, there is much to be learned from the deeply personal experiences of younger Americans. “Many are intolerant,” Alexis Watson, observes, “because they believe that tolerance means agreement. But tolerance is neither agreement nor acceptance of ideas; it is acceptance of people as they are.”Footnote 42 As the experience of Marquis Fulghum suggests, tolerance fails when it requires assimilation. Fulghum, a veteran, describes his experience submerging his identity in a bid for acceptance in the Marines: “My peers expected me to be the quintessential Black male who played sports and was chronically angry, so I made it my business to break Black stigmas. I learned to swim, shoot, and speak properly. I avoided chicken and purple drinks, never touched watermelon, and, hell, I even stopped swearing for a few months. Near the end of my enlistment, I learned that none of it mattered and my identity was lost.”Footnote 43 In sacrificing his identity to search for tolerance, Fulghum did not find acceptance, just alienation and anger. “After examining my experiences, the past, and recent racial tension in America,” he writes, “I know tolerance is not the answer. Instead, asking questions like, ‘am I acceptant, kind, and empathetic,’ are beneficial if we're serious about bridging the divide.”Footnote 44 Instead of expecting people to assimilate, Casey Krolczyk stresses “acknowledging conflicting values while still building out a common ground that can be the basis of constructive change and solutions.”Footnote 45
These essayists are not claiming that “scriptural truth and dogma” and “real differences” should be set aside in the name of tolerance. For Kyle Jorstad, tolerance “does not entail adopting the religious, political, societal, or ethical values of individuals we might disagree with on some fundamental level. What it does require is moving past merely recognizing the existence of opposing viewpoints towards a fuller understanding of what that viewpoint is, why it is held, and how we might be able to compromise.”Footnote 46
Forcing other people to change or somehow washing away differences, that is not tolerance. Tolerance is needed not just by LGBTQ persons but by those who are assumed to be averse to them. Arielle Brown shares her experiences of “discrimination and microaggressions.” Her “spirituality and character were automatically rejected because it was assumed that [her] Christian identity influenced [her] to hate the LGBTQ+ community.” When others project views onto us, it “yield[s] muted voices and invisibility.”
Brown maps how to stand in one's truth, honestly, forthrightly, even when others might not agree. “Self-compassion and self-acceptance” are the key: “The more we respect and accept ourselves, the more we can respect and accept others. This is because once we have a sound sense of self, we are not forcing our opinions on others or ignoring their opinions. Instead, we have peace in who we are and we wish to share our perspective with others.”Footnote 47
Honesty and empathy are needed. Younger people are forging these connections to one another not by suppressing differences, but by embracing them. Rebecka Green says “our identities and ideologies are often perceived, by both sides, as an irreconcilable clash of values and have created a deep polarity in our country.” “But,” she continues, “tolerance means possessing a vulnerability and openness to being challenged, to being wrong. This means recognizing that the vast majority of people, across the ideological spectrum, believe, vote, and pray the way they do out of a deep-set belief … that they are doing the right thing for their loved ones and community.Footnote 48
Younger Americans have amassed this wisdom from personal experience. In a poignant essay about his father's plea urging him to go to gay conversion therapy, Blake Gibney says: “My core values and identity do not have to be sacrificed to be tolerant. But, tolerance does require me to accept the reality that other people have different core values. Tolerance does require me to accept that I cannot change the hearts and beliefs of every person.”Footnote 49 Many in the culture war would jump to call Gibney's father intolerant. Gibney contends that is not helpful: finding healing and peace for himself requires tolerance and communication with those who have not always, or ever, accepted him: “Acceptance is difficult but it is the best way to propel meaningful dialogue.”Footnote 50
These essayists, like McClain, are wary of labels like bigot, which stop conversations before they can begin. These young people, tomorrow's leaders, are writing the next book, not about bigotry, but about tolerance. In this book, love matters more than hate. As Shannon McNamara writes, “There is a serious problem when the measure you use is hate. I believe that is something most rational minded beings can agree on, regardless of one's religious background, political party, or sexual identification. Replace hate with love, compassion, ambition for progress and peace. Now begin the conversation.”Footnote 51
For tomorrow's leaders, it is time for a shift to a more productive line of inquiry: how exactly do we embrace each other, when we are steeped in a culture that brooks no dissent? Shiloh Bentacourt suggests pausing and remembering that “when people belittle your views or existence, they are simply unaware and unsure.”Footnote 52 This requires considerable self-awareness. It takes “courage to accept the beliefs of the people around you, even if you don't understand them,”Footnote 53 Emma Baehrens explains. Listening to these stories and strategies from tomorrow's leaders—and transmitting their experiences to policymakers and legislators—is crucial to remaking America as a place that embraces all people.
Conclusion
McClain is to be congratulated for writing such a timely book. It is a sobering and towering account of how America has become so fractured and fragmented. It is well past time that the next book is written. That book, about healing America's immense rifts, should start with Kyle Jorstad's intuition: “[I]nstead of telling your ideological opponent why they're wrong, ask them why they're right—you might be surprised.”Footnote 54
Acknowledgments
We are grateful to Roxana Madani and Becca Valek for their insights from the Tolerance Means Dialogues project.
