Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [73]
Tom’s failure to reveal his impairment to judges was a form of passing, his failure to emphasize it to me a form of covering. My experience with him underscored again my ambivalence toward assimilation. I admired him for refusing victimhood, and for proving himself to me on neutral ground before divulging his condition. At the same time, I was glad he trusted me to negotiate on his behalf. While he downplayed his condition, he was likely to be misunderstood.
People with visual impairments widely report covering strategies. In her memoir, Sight Unseen, Georgina Kleege describes dressing meticulously, forgoing a cane, and memorizing passages she was expected to read aloud. Steven Kuusisto writes about hiding his telescopic glasses, pretending he was clumsy, and walking quickly. The most famous instance of a blind person who covered while not passing is Helen Keller, who insisted as a youth on being photographed from angles that hid her protruding eye. She later had her eyes replaced with glass, leading unsuspecting journalists to comment on the beauty of her blue eyes.
Covering is rife among individuals disabled in other ways, such as those with motor-function limitations. Jenny Morris notes how some people in wheelchairs use able-bodied people as “fronts,” relating how she takes her daughter shopping with her for this purpose. Others describe pressure to laugh along with jokes about how much room they take up or whether they have a license to drive a dangerous vehicle. Irving Zola writes about refusing a wheelchair for years to appear normal, and the shock at how much relief he got when he finally used one. When I read his account, it struck me that disability is a particularly stark instance of how counterproductive conformity can be. Zola paid for the appearance of normalcy not just with psychic repression but physical pain.
What distinguishes religious minorities and people with disabilities is not their susceptibility to covering demands, but the protection the law ostensibly gives them against such demands. In laws protecting both groups, we see an assimilation model of civil rights formally ceding to an accommodation model.
The assimilation model protects being a member of a group, but not doing things associated with the group. Under this model, courts protect skin color but not language, chromosomes but not pregnancy, and same-sex desire but not same-sex marriage. In the context of religion, Americans have historically been more skeptical of this distinction between being and doing, viewing belief to be inseparable from practice. The Constitution’s protection of the “free exercise” of religion distills that social understanding. As Justice O’Connor put it in a 1990 opinion, “because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause.”
Through the early 1970s, the Court sometimes interpreted the First Amendment to require the accommodation of religious practice. The 1972 case of Wisconsin v. Yoder concerned Amish families who refused to send their children to school after age thirteen. They were prosecuted under a Wisconsin law compelling school attendance until age sixteen. The Amish sought a free-exercise accommodation, arguing that their faith required them to preserve their children from the worldly influences of high school. Wisconsin responded with the familiar distinction between being and doing, contending that while it could not burden religious belief, it could regulate religious conduct. The Court, however, found that “in this context belief and action cannot be neatly confined in logic-tight compartments.” It asked Wisconsin to provide a compelling reason to justify the burden on the Amish. Finding no such reason, the Court required the accommodation.
Accommodation is also a key concept in disability law, as the Americans with Disabilities Act of 1990 requires employers to offer “reasonable accommodation” to employees