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Book Chapter

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William N. Eskridge Jr and Robin Fretwell Wilson




Cambridge University Press




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.

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