Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [80]
The Supreme Court’s shift toward a more universal register can also be seen in its nascent acceptance of human rights. I worked on a friend-of-the-court brief in the Lawrence case produced by a team centered at Yale Law School. With the former President of Ireland and U.N. High Commissioner Mary Robinson as our client, we argued that decisions by international tribunals and courts in other Western democracies had recognized the fundamentality of the right to adult consensual sexual intimacy. We knew this argument would be resisted by some justices on the Court, who do not take kindly to arguments that decisions outside the United States should guide their jurisprudence. But to our surprise, the majority opinion cited our brief for the proposition that Bowers violated “values we share with a wider civilization.”
At the end of their lives, both Martin Luther King Jr. and Malcolm X argued for this transition from civil rights to human rights. Both believed that civil rights unduly focused on what distinguished individuals from one another, rather than emphasizing what they had in common. As Stewart Burns, one of the editors of the King papers at Stanford, observes, King “grasped that ‘civil rights’ carried too much baggage of the dominant tradition of American individualism and not enough counterweight from a tradition of communitarian impulses, collective striving, and common good.” Similarly, Malcolm X exhorted Americans to “expand the civil-rights struggle to the level of human rights,” so that the “jurisdiction of Uncle Sam” would not prevent us from allying with our “brothers” of other nations.
The universal rights of persons will probably be the way the Court will protect difference in the future. I predict that if the Court ever recognizes language rights, it will protect them as a liberty to which we are all entitled, rather than as an equality right attached to a particular national-origin group. And if the Court recognizes rights to grooming, such as the right to wear cornrows or not to wear makeup, I believe it will do so under something more akin to the German Constitution’s right to personality rather than as a right attached to groups like racial minorities or women.
One of the great benefits of analyzing civil rights in terms of universal liberty rather than in terms of group-based equality is that it avoids making assumptions about group cultures. I’ve touched on the problem that the covering concept might assume too quickly that individuals behaving in “mainstream” ways are hiding some true identity, when in fact they might just be “being themselves.” A female colleague of mine gave me a powerful version of this critique: “Here is what I dislike about your project. When I do something stereotypically masculine—like fixing my bike—your project makes it more likely people will think I’m putting on a gender performance rather than accepting the most straightforward explanation for what I’m doing. I don’t fix my bike because I’m trying to downplay the fact that I’m a woman. I fix it because it’s broken.”
She gave another example: “When I was in graduate school, there was an African-American man who studied German Romantic poetry. Under your model, I could easily see someone saying he was ‘covering’ his African-American identity by studying something so esoteric and highbrow. But it was clear to me he was studying Romantic poetry because he was seized by it. And if someone had assumed he was studying it to ‘act white,’ they would have diminished him as a human being.”
The coup de grâce: “Your commitment is to help people ‘be themselves’—to resist