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Bigotry in Time: Race, Sexual Orientation, and Gender
NeJaime, Douglas
NeJaime, Douglas
Abstract
In a classic 1997 essay, Professor Reva Siegel focuses on how status hierarchies persist even as they are challenged, as the rules and reasons used to justify such hierarchies change through contestation-a phenomenon she labels "preservation-through-transformation." 1 Siegel begins from an important temporal observation, noting that "we often express judgments about subordinating practices of the past as if they were timeless truths."' But, she argues, condemning past practices of injustice can have the effect of legitimizing current practices. Because these past practices are now universally condemned, they cannot look so similar to current practices that are subject to dispute and debate.
Siegel's insight helps us to make sense of the role of bigotry in contemporary struggles over LGBT equality. Society now confidently condemns past practices of racial inequality-specifically segregation-as animated by bigotry. But this retrospective judgment fuels arguments of those who today oppose LGBT equality. Opponents of same-sex marriage and LGBT antidiscrimination law invoke bigotry in two related ways: First, they argue that, by comparing contemporary forms of LGBT inequality to past forms of racial subordination that have been universally repudiated, those supporting LGBT equality have unfairly cast their opponents as bigots. Second, they assert that by refusing to credit or make space for reasonable and sincerely held beliefs opposing same sex marriage, those supporting LGBT equality are themselves the bigots.
Fortunately, Siegel suggests an approach to inequality that applies lessons from the past to controversies in the present without viewing understandings that emerged from past struggles as timeless truths. Past practices were fiercely debated before their repudiation, so we must acknowledge that "[t]hat which we retrospectively judge evil was once justified as reasonable."' As Siegel instructs, "[i]f we reconstruct the grounds on which our predecessors justified subordinating practices of the past, we may be in a better position to evaluate contested practices in the present."8 In her deeply engaging manuscript, Who's the Bigot: Conflicts over Marriage and Civil Rights Law, Professor Linda McClain does just that-and, in the process, gives us a more clear-eyed assessment of the role that bigotry plays in struggles over inequality.