Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [46]
More recently—in 1982—a Missouri court of appeals barred a gay father from taking his children to any church that “supports the practice of homosexuality to the extent that it recognizes a ‘holy union’ between homosexuals as the equivalent of marriage.” An Indiana appellate court, citing this case with approval in 1998, prohibited a gay father from having any “non-blood related persons in the house overnight when the children are present.”
These cases enrage me. Courts are using the vulnerability all parents experience through their children to force gays to surrender the basic rights of citizenship, such as the rights of political advocacy or association. In doing so, they chill the expression even of gays who are not in court. A lesbian I know was a stalwart activist for years. When she had a son, however, she muted her activism. As an attorney, she knew the case law made her child a hostage of the state. Sex columnist Dan Savage similarly writes about how he and his male partner encourage their adopted son DJ to play with male-identified toys in which they had no interest as children. Given the credence the law attaches to the fear that gay parents will convert their children, I cannot say this is irrational. Again, Savage is experiencing a vulnerability to straight norms through his child that he has long since overcome on his own behalf.
Shahar’s case is anything but an aberration. Courts that prohibit conversion or passing demands still permit covering demands. Such courts will not protect gays who fail to cover from losing their jobs or children. The covering demand is the final symptom of gay inequality, and it is the challenge that faces the gay rights movement of the future.
As I sat in the Supreme Court listening to oral arguments in Lawrence v. Texas on March 26, 2003, I was struck by how many openly gay individuals packed the courtroom. I should not have been surprised, as it was one of the most important gay rights cases in the history of the Court. In Lawrence, the Court was considering constitutional challenges to a Texas sodomy statute. In granting review, the Court had instructed the lawyers to address the question of whether it should overrule Bowers v. Hardwick. But I was still agog that every gay rights person I could think of was there—the attorneys from Lambda Legal and the ACLU, law professors from around the country, Representative Barney Frank and his entourage. A few rows behind me, I saw some students who had worked with me on the friend-of-the-court brief a Yale Law School team had filed in this case. They looked a little rumpled: they had camped out on the Supreme Court steps overnight to secure their seats. As one of them, a gay man, wrote me, it would be “a good story to tell the grandkids.” I liked that he was planning to have grandkids, and thought the outcome of this case might make it easier for him to do so.
First-time visitors to the Court are often struck by how close the lawyers stand to the justices. This proximity heightens the drama of oral arguments, as the exchanges are quiet and intense, with no quarter for grandstanding. Deep into the argument, Chief Justice Rehnquist asked Paul Smith, the counsel for the gay appellant, whether ruling in his favor would permit gays to be kindergarten teachers. Smith said he would need to know why the state would object to gay kindergarten teachers. Justice Antonin Scalia clarified that the state would have an interest in preventing children from being steered into homosexuality. As he made that no-promo-homo argument, a ripple of disbelieving mirth swept over the courtroom. A bailiff raced to the