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Should the Law Protect People from Being Viewed as Bigots?

photograph of statue in front of Supreme Court building

In a recent judicial statement, Supreme Court Justice Samuel Alito wrote that those who adhere “to traditional religious beliefs about homosexual conduct” are in danger of being “labeled as bigots” and “treated as such.” This kind of statement has become a familiar refrain for Alito, ever since the Supreme Court recognized the right to same-sex marriage in the 2015 decision Obergefell v. Hodges. In Alito’s dissenting opinion in Obergefell, he similarly worried that the Court’s decision would be used to “vilify Americans” who oppose same-sex marriage.

Part of Alito’s concern is that the Court’s recognition of same-sex marriage might influence how some people of faith will be treated (given that many who oppose same-sex marriage do so for religious reasons). He worries that some might take these rulings to suggest that certain religious beliefs are intolerant or hateful, and that this might threaten the religious freedom of those people as a result. I’ll return to the issue of religious freedom later.

But first, I think it is worth thinking through his concerns about people being vilified or treated as bigots – regardless of their particular religious beliefs – if they oppose same-sex marriage. Alito’s position seems to rest on an assumption that the law ought to protect people from being viewed as bigots, at least in this circumstance. This naturally leads to a question: is he right? Should courts, at least sometimes, interpret laws a certain way in order to protect people from being viewed as bigots?

The short answer, I think, is no. But this short answer deserves a longer explanation that involves some important philosophical considerations.

In thinking through this, it will be useful to try to get as clear as possible about what Alito’s complaint is and is not. Alito’s complaint is not that the Supreme Court is calling people who oppose same-sex marriage bigots. The Court hasn’t done that. Instead, Alito’s complaint seems to be that the Court has issued rulings that imply that people who oppose same-sex marriage are bigots, and that others will view and treat opponents of same-sex marriage as bigots as a result. Take, for example, a 2021 judicial statement from Justice Clarence Thomas that Alito joined. That statement claims that in Obergefell the Court suggested that those “who believe that marriage is a sacred institution between one man and one woman” were guilty of “espous[ing] a bigoted worldview.”

As evidence for this claim, Thomas cites several statements from the Court’s majority opinion in Obergefell where the Court stated, among other things, that excluding same-sex couples from the right to marry “demeans gays and lesbians,” and serves “to disrespect and subordinate” them. Thomas and Alito appear to implicitly assume that those who support actions that demean, disrespect, and subordinate LGBTQ people are behaving in a bigoted manner toward LGBTQ people.

Thus, part of Alito and Thomas’ reasoning seems to go like this:

1) If one supports a position that demeans, disrespects, and subordinates LGBTQ people, then one is a bigot.

2) The Supreme Court majority in Obergefell treats a position supported by those who oppose same-sex marriage as one that demeans, disrespects, and subordinates LGBTQ people.

3) Therefore, the Supreme Court implies that those who oppose same-sex marriage are bigots.

I use the word “implies” in the conclusion instead of “views” because it is not clear that Thomas and Alito think the Supreme Court majority in Obergefell accepts premise 1. On the contrary, the Court’s majority in Obergefell held that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” But Alito and Thomas seem to think that this statement is insufficient to cancel the Court’s implication that those who oppose same-sex marriage are bigots.

For the sake of argument, let’s accept Alito and Thomas’ reasoning. This still leaves us with a question. How would the Court implying that those who oppose same-sex marriage are bigots lead other entities like “governments, employers, and schools” to view opponents of same-sex marriage as bigots? One reasonable answer is that Supreme Court decisions license certain views and actions by others. In other words, if the Supreme Court puts its stamp of approval on something, others are more likely to follow suit.

There is certainly something to this line of reasoning. For example, shortly after the Supreme Court held that a web designer had the right to refuse to make wedding websites for gay couples, a hairdresser announced that she would not serve transgender customers.

So let’s assume for the sake of argument that Alito and Thomas are right that the Court has implied that those who oppose same-sex marriage are bigots and that others are more likely to view those who oppose same-sex marriage as bigots as a result. Does this provide the Supreme Court with a reason to stop recognizing a right to same-sex marriage?

To answer this, consider an analogy. Imagine a court invalidates a law that allows employers to pay women less for the same work as men simply because they are women. Imagine the court does so on the grounds that such a law demeans, disrespects, and subordinates women. If we accept Alito and Thomas’ arguments, by analogy, this should lead us to conclude that those who oppose equal pay for women are bigoted against women. But that consequence seems irrelevant to whether courts should require equal pay for women.

I expect that Alito would agree that courts may prevent sex-based pay discrimination, and that he would reject an argument that courts should avoid doing this simply because it may imply that those who oppose equal pay for women are bigots. If he would, he must differentiate this analogy from the case of the right to same-sex marriage. How might he do that?

First, he might claim that a relevant difference is that those who oppose equal pay for women are bigots, while those who oppose same-sex marriage are not. This is, of course, a controversial premise. But even if we grant this premise for the sake of argument, such a response fails. This is because the response overlooks the fact that the risk that someone might be viewed as a bigot doesn’t outweigh the important moral, political, and legal value of ensuring equality based on sex or sexual orientation. Whether or not those who oppose such equality are viewed as bigots shouldn’t be the controlling issue. This gets priorities wrong.

Second, Alito might claim that there is a special concern about religious liberty in the case of those who oppose same-sex marriage for religious reasons. Indeed, in his recent statement he worries specifically about those with “traditional religious views on questions of sexual morality” being viewed as bigots.

Two points are worth making in response. First, it is important to distinguish viewing someone’s religious beliefs as bigoted versus discriminating against someone because of their religious beliefs. We have compelling moral and legal reasons to prevent discrimination based on religion. That includes preventing discrimination based on religious belief. But one can view someone’s religious beliefs as bigoted without discriminating against them, and it’s important to not conflate the former with the latter. Alito seems to have distinct worries about religious opponents of same-sex marriage being discriminated against. But that is a separate issue that would require its own examination.

Second, even if an employer wants to pay women less than men for religious reasons, the court still ought to prevent employers from doing this, even if it implies that the employer’s religious beliefs are bigoted. This is, in part, because people are not prevented from retaining religious belief, even if those beliefs are considered bigoted by others. This is also, in part, because religious freedom doesn’t require that others — including the government — accept or act in accordance with one’s religious beliefs.

At this point, one might raise the following objection: While it is true that forbidding same-sex marriage harms many LGBTQ people, isn’t it also the case that permitting same-sex marriage will harm many religious believers? The potential harms to religious believers are of two types. First, religious believers might be viewed as intolerant or bigoted. Second, religious believers might be forced to sanction same-sex marriages in various ways that violate their consciences (e.g., by being required to provide goods or services for same-sex weddings). Why aren’t the harms to LGBTQ people and religious opponents of same-sex marriage here symmetrical?

The appropriate response comes in two parts, to correlate with the two types of potential harms to religious opponents of same-sex marriage. First, the harm of being viewed as intolerant or bigoted generally is not the kind of harm that the government has good reason to prevent. (There are exceptions to this general rule, like legal protections against defamation.) On the other hand, the government often has good reason to prevent groups of people from suffering harm by not being given equal access to basic rights, like the right to marry.

Second, the question of whether religious believers should be given exemptions from certain laws due to their opposition to same-sex marriage is a question that can and should be treated separately from the question over whether we should recognize a right to same-sex marriage. The ongoing debates over whether such exemptions should be granted are a separate issue. One can decide that it’s appropriate to grant such exemptions, even if one thinks that opposing same-sex marriage is hateful or intolerant. This is because religious freedom should be extended even to views that we find hateful or intolerant.

Thus, in short, while it is understandable that many who oppose same-sex marriage don’t want others to view them as bigots, this is not a situation that the law should seek to shield them from.

Same-Sex Marriage and the Political Process

photograph of Capitol building, Washington Monument, and Lincoln Memorial

On July 19th in a bipartisan vote the House of Representatives voted to affirm the legal right to same-sex marriage – the bill now goes on to the Senate. Currently same-sex marriage rights rest on a 2015 Supreme Court decision, Obergefell v. Hodges. However, with looming concerns that the same constitutional logic the Supreme Court used to overrule Roe v. Wade could apply to Obergefell, the House acted pre-emptively to secure same-sex marriage against the Court overruling its prior opinion.

There is a certain irony in this course of action, as it has historically been a function of the judiciary to secure rights against legislation. Additionally, the House bill is not simply Obergefell by other means, for Obergefell establishes a constitutional right to same-sex marriage, where the House bill, if approved by the Senate, only establishes it as statutory law subject to change with the biennial shift in Congress.

Same-sex marriage is a politically popular issue, so optimistically this can be viewed as the House successfully enacting the will of the people. But there lurks a question:

What matters should be subject to the whims of political process at all? Which matters should be addressed by the legislature and which matters should be best addressed by courts?

All things being equal, the legislature is where the action should happen concerning U.S. law. It is, in theory anyway, the most democratic institution and the most accountable to the people (although see Prindle Post author Alexander Spencer’s discussion of the flaws of American democracy). In his dissent on Obergefell v. Hodges, Justice John Roberts stressed that the question of same-sex marriage should be resolved through “democratic process.” The late Justice Antonin Scalia, with characteristic understatement, claimed the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The spirit of Scalia’s critique is that courts should stay in their lane, keep their hands off the political process, and not legislate from the bench. Whether same-sex marriage is a right should be up to the American people via their representatives, and not the Supreme Court – to do otherwise in Scalia’s framing is undemocratic.

The opposing ethical concern, however, is that it makes minority rights conditional on majority approval. The English philosopher John Stuart Mill, for example, was quite wary of the “tyranny of the majority.” As he notes,

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest…the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.

Mill’s analysis directly challenges Scalia’s reflections on self-governance. If the representatives of the majority voted to strip same-sex marriage rights from same-sex couples, this would not be self-governance by same-sex couples but governance of the majority over the objections of same-sex couples.

Some of this tension is incumbent on the nature of democracy – majoritarian policy will almost definitionally be enacted over the objections of a minority.

But in cases where majority decisions are oppressive, exploitative, or otherwise fail to treat the minority as full and equal humans, safeguards may need to be placed on majority rule.

This line of thinking highlights the fact that it is not an unalloyed good to defer to democratic processes.

Mill’s concerns about the tyranny of the majority speaks to a long-standing challenge of democracy: how to ensure majority rule with adequate protection of minority rights. Famously, in Federalist Paper No. 78, Alexander Hamilton identified the courts as a key safeguard against legislative overreach.

There is no simple list of minority rights, and there is room for disagreement over what rights are implied by the Constitution and what rights are reasonable to recognize more generally. (It should be noted that the Ninth Amendment of the Constitution explicitly states that the rights listed in the Constitution “shall not be construed to deny or disparage others retained by the people,” although no Supreme Court ruling has ever upheld a right purely on Ninth Amendment grounds.) There is also room to doubt that the Supreme Court can be the neutral bulwark the Founders envisioned. Americans increasingly view the Court as an extension of partisan politics, and there is evidence that the contemporary Court is especially ideological.

The current bill, The Respect for Marriage Act, should be nothing but reassuring for supporters of same-sex marriage. It already has some bipartisan support in the Senate, although it remains unclear if it would pass a possible filibuster. Moreover, Obergefell yet stands, and so far only Justice Clarence Thomas has made explicit his desire to overrule it. Even this however speaks to a shifting calculus in how the Court views its obligations to protect minority rights from the vicissitudes of majority will.

On Censorship, Same-Sex Marriage, and a Cartoon Rat

photograph of tv screen displaying an Arthur episode

On May 13th, the children’s television program Arthur, based on the popular storybooks featuring anthropomorphic animals, premiered its 22nd season with an episode titled “Mr. Ratburn and the Special Someone.” Alabama Public Television refused to broadcast it, citing concerns about its inclusion of a same-sex wedding. In the story, Arthur and his friends learn that their teacher, Nigel Ratburn (a staple character for decades), is engaged to be married, but they worry about what that will mean for their future when they see him with a grumpy, unfamiliar woman. Eventually, the children realize that the woman is Mr. Ratburn’s sister who is in town to officiate the ceremony – Nigel’s actual partner is revealed to be Patrick, a kind chocolatier introduced in the episode. In the show’s closing moments, the children celebrate their teacher’s happiness as one comments “It’s a brand new world,” before they all chuckle at Mr. Ratburn’s embarrassing attempts to dance.

The notion that homosexuality is scandalous and demands censoring for younger audiences is not new, but the majority of Americans actually claim to support same-sex marriage, particularly since its federal legalization in 2015. A Gallup poll from May of last year indicates that as many as two-thirds of U.S. adults say that gay marriages should be legally valid and, although the numbers in the South are lower, a majority (55%) still support marriage equality. Nevertheless, APT explained its decision to not air Mr. Ratburn’s wedding as a matter of free choice: “Our broadcast would take away the choice of parents who feel it is inappropriate,” explained programming director Mike McKenzie.

Initially, Alabama was not alone in its decision: the Arkansas Educational Television Network similarly cited content concerns about the story, saying, “In realizing that many parents may not have been aware of the topics of the episode beforehand, we made the decision not to air it.” This sentiment reflects the position of Christian advocacy group One Million Moms, a division of the American Family Association which stated on its website, “Just because an issue may be legal or because some are choosing a lifestyle doesn’t make it morally correct. PBS Kids should stick to entertaining and providing family-friendly programming, instead of pushing an agenda.” AETN later reversed its decision and plans to air the episode at the end of May.

Censorship is (perhaps a bit ironically) a topic long-discussed in political philosophy: ever since Socrates was put to death for his “impious” words, the Western philosophical tradition has harbored a certain wariness about the notion of silencing discussion or debate prematurely. Towards the end of the second chapter of On Liberty, John Stuart Mill lists four reasons why he considers the unrestrained dissemination of ideas within society important (all other things being equal):

  1. Silenced opinions might turn out to be true,
  2. Only the “collision of adverse opinions” can root out the actual truth,
  3. People will only come to authentically believe a truth if that truth is honestly discussed, and
  4. Silencing dissent turns true opinions into irrational dogmas.

The only sort of censorship that Mill even hints at supporting is that of “vituperative language” against minority positions (in the interest of encouraging further discussion) – and, even then, he clarifies firstly that it should be a censorship of presentation, not content, and secondly that it would be accomplished via social stigma, not formal law. From Mill’s position, the decision to prevent the dissemination of a playful children’s program (which, it might be noted, never actually explicitly discusses Mr. Ratburn’s sexuality) seems difficult to defend.

Of course, one might then ask: does this mean that nothing can ever be censored? Should PBS follow the latest Arthur episode with a news report filled with graphic footage of the day’s disasters? This seems wrong for an entirely different set of reasons. Tactfulness and discerning the appropriate context within which a topic can be properly discussed is a matter of skill that does not come easy to everyone; we’ve all had experiences where someone has “overshared” personal information in professional meetings or referenced something disgusting over what had previously been a polite meal. The public television stations in Alabama and Arkansas held that a cartoon is an inappropriate setting for a gay marriage celebration, even one as subdued as Mr. Ratburn’s (the scene itself never actually shows the technical ceremony and neither Patrick nor Mr. Ratburn speak).

Two questions, then, remain – one universal to the matter of censorship and the other more specific to this case:

  1. Will people be harmed by the presentation in question?
  2. Should the silent indication that a character is heterosexual be treated differently than the silent indication that one is not?

Regarding (1), consider how security issues might well require that some information be kept quiet (about, for example, the travel plans of a state official) or how, for the sake of the mental stability (or even physical safety) of given members of an audience, some topics should be avoided or ignored – the so-called matter of “deplatforming,” as when white nationalist Richard Spencer decided to cancel his speaking tour last year after persistent protests. If the concerns of (1) are severe enough, the pro-censorship side can defend its position as a matter of safety, not ideological purity, thereby avoiding Mill’s concerns.

To answer the second question affirmatively is simply to express a bias against any relationship that is not heterosexual – something which might actually indirectly violate (1) and which is itself up for legal review by the SCOTUS with a ruling expected next year.

But it seems like the position of APT and AETN was that airing “Mr. Ratburn and the Special Someone” could potentially provoke harmful situations in homes that do not affirm same-sex marriages and would, as a consequence of the program, need to explain such things to young family members – that is, the stations based their decision on (1), not (2). Certainly, by calling it “agenda pushing” and labeling it as something other than “family-friendly programming,” One Million Moms explicitly thought the episode to be harmful in some way. If one works with a sufficiently broad definition of “harm,” then the uncomfortable tenor of some household conversations might well qualify – but, that’s ultimately no different than saying “not everyone is going to like this thing that I’m talking about” and unanimous approval is an impossibly high bar for permissibility. At this point, we seem perilously close to former Supreme Court Justice Potter’s famously ad hoc inability to describe ‘obscene speech’ – but his insistence that “I know it when I see it.”

PBS Kids spokesperson Maria Vera Whelan explained, “We believe it is important to represent the wide array of adults in the lives of children who look to PBS Kids every day” and Marc Brown, the creator of Arthur, told People magazine that “We all know people who are gay, who are trans, and it’s something that is socially acceptable. Why is there this discomfort that it takes a leap into our national media?” Particularly given the general support for same-sex marriage across the country, this discomfort is curious indeed. Same-sex relationships have been around far longer than the Obergefell v Hodges precedent and pretending otherwise only serves to perpetuate unnecessary ignorance.

After all, as one conservative pundit likes to frequently remind his fans, “Facts don’t care about your feelings.

The Ethics of the Masterpiece Cake Shop Decision

Photo of cakes in a display case

On June 4, The Supreme Court announced its 7-2 ruling in favor of a baker who refused to bake a cake for the wedding of a same-sex couple.  The public response was intense on both sides. People took to the streets and to social media to express their attitudes about the decision.  One common misconception in the popular commentary on this topic appears to be that the Court ruled that places of business have the right to discriminate against patrons for religious reasons.  The Court’s decision was actually much narrower. It did not create a religious exemption from anti-discrimination laws.

Continue reading “The Ethics of the Masterpiece Cake Shop Decision”

Thomas S. Monson and the Politics of Obituaries

A portrait of Thomas S. Monson

Thomas S. Monson, President of The Church of Jesus Christ of Latter Day Saints, died on January 2 of this year. Monson led the LDS Church for almost a decade.  On January 3, The New York Times published an obituary for Monson that was not well received by many members of the church.  They felt that it was politically biased and did not paint the life and work of their much-loved leader in a positive light.  

Continue reading “Thomas S. Monson and the Politics of Obituaries”

Same-Sex Marriage: A Libertarian Perspective

The dust is just now beginning to settle on same-sex marriage in the United States, since the Supreme Court’s recent ruling in Obergefell v. Hodges established the unconstitutionality of state-level bans on such marriages. Though the law of the land has been established, all the legal and sociocultural effects remain to be seen (for example, can elected officials receive a religious exemption from performing certain job-related duties).
Is same-sex marriage a victory for freedom? It’s hard to say, and depends on who you ask. The ability to marry a partner of the same sex at the same time both expands the life possibilities for many citizens, while also bringing them into the fold of semi-coercive social norms regarding what a proper long-term romantic relationship and family look like. The Supreme Court let “love win,” but that love is now an increasingly institutionalized one.
To those who we could call “rule of law” libertarians, the most important consideration is fairness and impartiality under the law. This perspective comes down in favor of same-sex marriage for obvious reasons having to do with fairness and equal protection. End-the-state libertarians, on the other hand, strongly disapprove of government in marriage to begin with (on the grounds that it invites and normalizes the meddling of government in private affairs), and object to its expansion (even to same-sex couples) as more of a bad thing. Some in the LGBTQ community (who may or may not be libertarians or anarchists) share this concern, believing that marriage is a kind of well-meaning but ultimately pernicious encouragement towards the conventional domesticated lives they don’t actually want.
No principled libertarian objects to gay marriage for specifically moral reasons, having to do with “marriage” being reserved for the permanent bond between a man and a woman, for instance. Whether it is un-libertarian to have reservations about progressive views regarding the malleability of sexuality and family is a trickier question (certainly progressive, libertine, and conservative libertarians have basically always co-existed in libertarianism’s big tent).
Libertarians do reasonably worry that same-sex marriage will lead to the abridgment of other liberties, namely freedom of religion and freedoms of association, especially through commerce (see, for example, the fight over whether religious bakers must bake a wedding cake for a same-sex couple). However it is certainly nothing new in principle that some values in a plural society would necessarily become pitted against others. And it does not seem to be the goal of same-sex marriage proponents to use that position strategically for the purpose of dismantling other liberties, though the possibility is real and conspiracy theories abound.
Could there be other libertarianism-consistent reasons to oppose same-sex marriage? Not really. Allowing only straight marriage in order to “strengthen the nuclear family” runs afoul of the libertarian goal of making minimalist policy that is as value-neutral as possible. Even if same-sex marriage and parenting somehow did in fact weaken family life overall (it’s complicated, and family stability may matter more than gender), that would be a less important consideration for even most socially conservative libertarians than establishing state neutrality in marriage. In any case, there are relatively hands-off ways for the government to fight childhood poverty and provide opportunity to families, like properly-structured earned income tax credits and basic food support, that do not necessarily require discriminating on the basis of the biological or adoptive parents’ sexuality.
Similarly, slippery slope arguments against same-sex marriage don’t seem to be consistent with libertarianism. The threat of a slippery slope from same-sex marriage to multiple partner marriage (polygamy) is real. However, that move only seems like a pernicious slippery slope if one assumes that legally-sanctioned marriages must be between one man and one woman in the first place. Rule-of-law libertarians would likely reject that assumption.
In the end, it is not really up for debate – from a libertarian perspective – whether people of the same gender should be allowed to marry conditional on the fact that government is in the marriage business in the first place. Since marriage, in the civil-legal light, is about distributing the benefits and burdens of a particular form of citizenship, that form of citizenship should be in some strong sense available to all.
It’s a separate issue as to whether the government should require private businesses that cater to heterosexual weddings also to cater to same-sex weddings. The primary values at stake here are economic freedom versus non-discrimination, but the situation is much more narrow than the marriage question in general (which necessarily has broad and far-reaching consequences over many citizens’ whole lives). Whether a libertarian, or anyone, should trade some economic freedom in the attempted pursuit of non-discrimination is, however, a topic for another time.