The Right to Bigotry

You have a right to be a bigot.  PERIOD!  A legal, Constitutional right to be a bigot!

But what exactly does that mean?  All it means is that you may not be imprisoned or fined or in any tangible way penalized – by the federal government, by your state government, or your local government – for being a bigot.  You may lose friends and you may lose your job or your livelihood, but you have a legal, Constitutional right to be a bigot.  Indeed, the biggest loser is bound to be the bigot himself – is that you? – but he is legally free to do so.

You may be bigoted against those with the wrong race, the wrong religion or no religion at all, the wrong gender or sexual identity, the wrong ethnicity, the wrong education, the wrong political party, any old thing the mind may conjure up to hate.

Nevertheless, it’s simply not that simple.

Bigotry can take many forms.  The first is internal, you may hate with reckless abandon, in your own mind.  Legally.  We have no thought police, yet!

Indeed, you may even express your bigotry outwardly, with the spoken word, with the written word, with the published and with the universally visible word on social media.  Free to do so (see my blog post Lying is Legal: there are legal limits to the spoken and published word, 1st Amendment protections notwithstanding).  But not without consequence.  You may lose friends, influence and maybe your job, your livelihood.

In commerce, if you are a small business owner, I believe that you ought to have the right to discriminate against anyone who wants to hire you and your firm to perform a personal task, like the bakery shop in the SCOTUS decision Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).  And you have this right for the same reason that he may choose who he does or does not want to hire to perform a personal task that he wants done.  But you have no right to refuse to sell to anybody anything that you offer off your shelves.  If you are Walmart or any large corporation, you have no right to discriminate, in any way.  If you are an individual pharmacist within Walmart who has religious scruples against filling a prescription for whatever, you may have the right to refuse to fill that prescription; but the Walmart pharmacy has no such right, and it may terminate your position for non-performance if it wills to do so; and it will have to find another employee to fill that prescription that you would not, or it is in legal trouble.

But, finally, here is where the rubber hits the road.  Whereas, the government (federal, state or local) has no right to penalize your bigotry, it has no right to bigotry itself.  The Declaration of Independence declares – for the whole world to read and understand – that “all men are created equal,” and while Thomas Jefferson may not have meant what we understand it to mean, we mean it today.  And the vastly under-appreciated 14th Amendment guarantees “equal protection of the laws” to all persons.  What does this mean?   That any man who holds public office – in the executive branch, or the legislative branch, or the judicial branch – has no right to discriminate against anyone for any reason, and that he is breaking his oath of office, to “support and defend the Constitution of the United States ... that {he} take{s} this obligation freely, without any mental reservation or purpose of evasion.”  It is grounds for removal from office, and, in better days, we acted upon it.  President Richard Nixon resigned from office under pressure from virtually all the members of his own political party, while former President Donald Trump still holds sway over tens of millions of Americans who should know better.  

It is a fatal flaw of our democracy that so many of us can be so ignorant of our laws and institutions – or hold them in such utter contempt – and still legally exercise the right to vote.  Or worse still, legally hold public office.  Marjorie Taylor Greene’s call for the split-up of the United States of America into a red country and a blue country – a bigotry of beliefs and kind – is pure and simple treason, and we have already fought one calamitous Civil War over an attempt to split the Union into opposing camps.  But nothing will be done, as we live in a time when millions of Americans have little understanding of the values of our founding or the values that our nation has grown up to stand for.  Which is that bigotry – "I am better than you"  – stops short of the law.  

You have the unalienable right to your personal bigotry; our government has no such right or power.

None of us is perfect: we are all bigots – of some kind and to some degree – in our hearts.  But if we let it leak out and poison the air that we and our brothers and sisters breathe, we may put at risk our immortal souls.