Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [41]
My real commitment is to autonomy—giving individuals the freedom to elaborate their authentic selves—rather than to a rigid notion of what constitutes an authentic gay identity. I focus here on the demands of coerced assimilation because I think American history has shown it to be the greater threat to gay autonomy. Surveying gay rights litigation, it’s uncommon to find gays suing for being forced to flaunt. I know of only one legal context in which such reverse-covering demands have been made—the immigration context, in which gay asylum seekers have to prove they are “gay enough” to establish a colorable fear of persecution. Given my commitment to autonomy, I of course resist that reverse-covering demand. But in general, gay plaintiffs sue to fight forced conformity, in the forms of conversion, passing, and covering. We see the final generation of such litigation in the case of Robin Shahar.
Robin Shahar, formerly Robin Brown, took her current name when she was married in July 1991 by Rabbi Sharon Kleinbaum. Because of this ceremony, Shahar lost her job as a staff attorney at Georgia’s Department of Law. The problem was that Shahar had married—in the eyes of her religion, not the law—another woman, Francine Greenfield. (The couple took the name Shahar, which means “the dawn” in ancient Hebrew; I refer to Greenfield by her former name to avoid confusion.)
When I speak with Shahar, she tells me her relationship with the Department of Law began in 1990, during a summer internship she took while in law school. Her ultimate boss was Michael J. Bowers, the Georgia attorney general of Bowers v. Hardwick fame who had successfully defended Georgia’s sodomy statute all the way to the Supreme Court. Shahar, however, was not particularly anxious. Out for five years by that time, she had a rule: “I would not lie if someone asked me about my boyfriend or what I did over the weekend. But I wouldn’t initiate.” The effect of this rule was that most of her coworkers knew she was gay. Shahar’s strategy of not passing but covering worked. In the fall, Bowers offered her a full-time position as a staff attorney after she completed law school.
When she received her offer, Shahar was preparing for her Jewish marriage to Greenfield. While no United States jurisdiction at the time recognized the legality of same-sex marriages, the Reconstructionist Movement accepted the validity of same-sex marriages performed within the faith. The movement views such marriages not only as commitments between two individuals, but also as commitments those individuals make to their congregation and to all Jewish people. Because the movement deems these marriages sacred, it considers them indissoluble without the intervention of a rabbi.
In November 1990, Shahar filled out a department personnel form with this in mind. One question inquired: “Do any of your relatives work for the State of Georgia?” As Shahar recalls, “I remember thinking long and hard about what I wanted to write. I thought, this is a conflict-of-interest question, and Fran works for the state of Georgia. But I also knew she wasn’t my spouse in straight society’s view. In the end, I went back to my rule: do not lie.” Shahar wrote that Greenfield, her “future