Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [82]
For starters, many covering demands are made by actors the law does not—and in my view should not—hold accountable, such as friends, family, neighbors, or people themselves. When I hesitate before engaging in a public display of same-sex affection, I am not thinking of the state or my employer, but of the strangers around me and my own internal censor. And while I am often tempted to sue myself, this is not my healthiest impulse.
Law is also an incomplete solution to coerced assimilation because it has yet to recognize the myriad groups subjected to covering demands outside traditional civil rights classifications like race, sex, orientation, religion, and disability. Whenever I speak about covering, I receive new instances of identities that can be covered. This is Winnicott’s point—each one of us has a False Self that hides a True one. The law may someday move to protect some of these identities. But it will never protect them all.
Most important, law is incomplete in the qualitative remedies it provides. I confronted this recently when I became a plaintiff in a lawsuit against the Department of Defense. Under a congressional statute called the Solomon Amendment, the department threatened to cut off $350 million of federal funding from Yale University if the law school did not exempt the military from the law school’s policy of protecting gays against discrimination by employers. Our suit argues that the statute is unconstitutional. I believe in this lawsuit, and was heartened that the vast majority of my law school colleagues signed on as plaintiffs. I was also elated when the district court judge, Judge Janet Hall, granted summary judgment in our favor. (As the government has taken an appeal, the case is still pending.) But there is nothing like being a plaintiff to realize that lawsuits occur between people who have no better way of talking to each other.
When I think about the elaboration of my gay identity, I am grateful to see litigation has had little to do with it. The department is the only entity I have ever wanted to sue. Even when I encountered demands for assimilation, my best response was to draw my interlocutor into a conversation. Just as important, framing the project of self-elaboration in purely legal—and therefore adversarial—terms would fail to honor all those who were not adversaries. I have described in these pages many individuals who helped me toward myself. But there were many more. I think here of my law professor Charles Reich, who wrote a memoir about coming out in 1976, when it was an act of real courage to do so, and who let me write the essay that begins this book in his class, though its relationship to the law was then entirely unclear. I think of the chair of my midtenure review committee, who sat me down when I was the only untenured member of the faculty and, unsurprisingly, a mass of nerves, to give me the verdict of the committee. He told me his only advice for the coming years was that I should be more myself, that instead of reasoning within the law as it existed, I should speak my truth and make the law shape itself around me. And I think of my parents, whose response to this manuscript was to say, with calm and conviction, that they were proud of the man I have become.
For these reasons, I am troubled that Americans seem increasingly to turn toward the law to do the work of civil rights precisely when they should be turning away from it. The real solution lies in all of us as citizens, not in the tiny subset of us who are lawyers. People who are not lawyers should have reason-forcing conversations outside the law. They should pull Goffman