In lucid terms that escape the legalese that burdens related books, Yale Law School professor Kenji Yoshino discusses a topic that I never really knew had a formal definition. He describes "covering" as the purposeful act of toning down a "disfavored identity" to fit into the mainstream. Since notions of disfavored identities can get subjective, anyone can cover, whether people are members of ethnic minority groups hiding specific cultural behaviors or even white males hiding less discernible problems such as depression, alcoholism or backgrounds that embarrass them. Consequently, given the pervasiveness of such behavior, covering would seem comparatively innocuous, but Yoshino provides ample evidence that covering is a hidden assault on our civil rights. Moreover, it is becoming more of a civil rights issue as the nation's courts struggle with an increasingly multi-ethnic America.
His penetrating book is a hybrid between a revelatory memoir and a level-headed treatise on the unacceptability of the current legal doctrine around our civil rights. Toward the latter point, Yoshino discusses covering within the broader context of often egregious civil rights injustices. As he explains it, the courts are mired in group-based identity politics and driven by calls for equality. For example, to sue successfully under the Equal Protection Clause of the Constitution's Fourteenth Amendment, a group claiming discrimination has one of two options. First, the group could argue that it has been denied a fundamental right, like the right to vote. Alternatively, it can contend that the law in question employs a suspect classification, i.e., that the law unjustly singles out a particular group. To argue successfully that it has been penalized by a suspect classification, a group must show that its members have historically been victimized and deserve greater protection from the courts. Given these options, Yoshino describes the increasing wariness about identity politics in a country continually spawning new identities. The current legal trend shows the courts to be veering increasingly toward protecting only the immutable aspects of identity.
The legal aspects are surprisingly fascinating in Yoshino's hands, but the more personal parts of his book are the most illuminating, in particular, Yoshino's journey out of the closet. Using his own history as a touch point, he explains the three distinct phases of gay history - conversion, passing, and covering - each defined by various pressures that enforce conformity. During the conversion phase (recreated in films like Todd Haynes's "Far From Heaven" and James Ivory's "Maurice"), gays were pressured to become heterosexual through electro-shock treatments or aversion therapy. During the passing stage, gays were relegated to the closet since mental health professionals were not providing a cure for mainstream acceptance, and having a hidden identity was the only viable way to be tolerated in society. Yoshino contends we are currently in the third phase, covering, where being gay is passively acceptable as long as people offended by it do not have to witness such an alternative lifestyle.
From one perspective, one can consider it progress that covering even occurs even though the religious right still makes an emphatic effort to convert gays or keep them out of jobs that could pass such supposedly deviant behavior to susceptible children. This is where Yoshino's personal struggles to cover inform the book. His bracing honesty is refreshing in showing how coming out is despite the dramatic convention of TV-movies, not a declaration that liberates one in a single moment, but a far more gradual process where defining what it means to be gay becomes even more nebulous within the constant ambiguity around gay legal issues. Yoshino eloquently clarifies how the pervasiveness of societal pressures can waylay a person caught in the crossfire between acceptance and personal liberation.
The best way to make progress, Yoshino concludes, is to move beyond the legal issues. According to Yoshino, civil rights lawsuits should focus on individual rights, which unify all groups around common values. Instead of focusing on marginalized groups clamoring for special status, courts would ideally say that all people have a right to be who they want to be. As a precedent, Yoshino points out the 2003 case, Lawrence vs. Texas, in which the court decriminalized same-sex sodomy not based on equality rights of gays but because it violated the fundamental rights of all people to control what they do in the bedroom. It's a powerful idea which could lead to a new jurisprudence of liberty, but there is a challenging road toward realizing such legislation. One could argue that the unequal treatment of minority groups is what makes us realize what our liberties actually are.
Though he doubts the continuing usefulness of equal protection law, Yoshino might underestimate how much his contentions based on personal freedoms will continue to depend on equality arguments. However, what's exciting about the covering paradigm of civil rights is that it's universal. Yoshino hopes that the direction that courts are moving in is happening in a world where the notion of mainstream is fracturing. In the final analysis, Yoshino dares to put the law aside. He argues that we should leave behind equality doctrine for a new, radical focus on personal liberties that the Supreme Court may be unlikely to pursue beyond Lawrence. He argues that law generally should take a backseat to cultural change. Litigation should give way to conversation to confront covering. This is superb, groundbreaking thinking eloquently presented.
A bit damaged
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