Tag: Kenji Yoshino


Cover image for Covering by Kenji Yoshinoby Kenji Yoshino

ISBN 978-0-375-76021-1

 “In the new generation, discrimination directs itself not against the entire group, but against the subset of the group that fails to assimilate to mainstream norms.”

Kenji Yoshino is a legal scholar of civil rights, known for his work on gay rights and marriage equality. Covering addresses what he perceives to be the next frontier for civil rights. Yoshino attributes the term “covering” to Erving Goffman’s 1963 book, Stigma, from which he quotes, “passing pertains to the visibility of a particular trait, while covering pertains to its obtrusiveness.” Despite the significant progress made for civil rights in general, and gay rights in particular, Yoshino was left feeling that the transformation was incomplete, and that there were gaps yet to bridge to achieve true acceptance. American culture has largely moved past the demand that gay people convert to being straight (conversation therapy) and even somewhat past the demand that gay people pass for straight within society (don’t ask, don’t tell). Today, the gay people who are most often penalized for their identity are those who act “too gay,” who refuse to cover behavioural aspects of their identity in order to make those around them more comfortable. In the legal sphere, Yoshino cites numerous cases in which “courts have often interpreted these [civil rights] laws to protect statuses but not behaviors, being but not doing,” thus creating a legal enforcement of this state of affairs.

Yoshino is arguing not only for our rights to our identities, but our rights to say and express those identities, and reject demands to convert, pass, or cover our differences. He identifies four areas where covering takes place, including appearance, affiliation, activism, and association. He also delves deep into the possible problems and potential pitfalls of protecting behaviour as well as identity. First, he acknowledges the complexity of identifying what counts as covering. For example, for some members of the gay community, gay marriage might be considered a form of covering because it asks them to assimilate to straight cultural norms by adopting a straight cultural institution that is not compatible with their values or preferences. Yoshino also stresses that rejecting covering cannot come with an inverse demand that minorities act “gay enough” or “black enough,” thus inadvertently reinforcing stereotypes. “My ultimate commitment is to autonomy as a means of achieving authenticity, rather than to a fixed conception of what authenticity must be,” he concludes.

As a gay Japanese American, Yoshino is able to personally touch on covering as it pertains to both race and sexual identity, and he weaves his personal experiences into these discussions, sharing how he continued to cover aspects of his identity long after he came out to his parents. However, he also addresses gender and disability, even though he does not personally experience these covering demands. He identifies a unique double-bind experienced by women in the workplace, where they are “pressured to be “masculine” enough to be respected as workers, but “feminine” enough to be respected as women.” Motherhood also offers a unique example of contextual covering. Outside of work, “mothers seems like paragons of normalcy,” but on the job they are “the queers of the workplace,” forced to downplay this aspect of their identity in order to avoid the mommy track.

Although Yoshino is a legal scholar, his style is literary. Because he integrates elements of his own story within the broader argument, it is possible to locate this stylistic choice in his earlier dreams of being a writer or poet. But he chose the law, because “a gay poet is vulnerable in profession as well as person. Law school promised to arm me with a new language, a language I did not expect to be elegant or moving, but I expected to be more potent, more able to protect me.” However, his command of language, both legal and literary, puts him in a unique position to articulate the gaps that remain, and the legal challenges that stand in the way of bridging them.

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Speak Now: Marriage Equality on Trial

Cover image for Speak Now by Kenji Yoshino by Kenji Yoshino

eISBN 9780385348812

“At their best, trials can be exercises in crystalline argumentation. But they are not only that. They are also human events in which living, breathing protagonists embody the claims they make. There is great virtue in combining, as trials do, authentic human stories with abstract argumentation.”

In November 2008, a ballot initiative in the state of California narrowly approved a constitutional amendment defining marriage as being between one man and one woman. When the government was inevitably sued by same sex couples seeking to marry, the state declined to defend the legislation. The task fell to the proponents of the initiative, while the plaintiffs’ case was taken up by Ted Olson and David Boies, the lawyers who famously faced off in Bush v. Gore only a decade earlier.  As both a legal scholar and a gay man, Kenji Yoshino provides a unique perspective on the trial, following it from the district court in 2010, up to the Ninth Circuit court of appeals, and finally to the Supreme Court of the United States in 2013. In addition to chronicling the case, he contends that Hollingsworth v. Perry is a prime example of the trial as a fact-finding method, and argues that it deserves a significant place in the history of marriage equality litigation despite being generally overshadowed by United States v. Windsor, which was handed down the same day.

Perry was an unusual marriage equality case in that it was not filed by one of the organizations leading the gay rights movement, such as Lambda Legal, or the American Civil Liberties Union. This caused skepticism and concern among marriage equality proponents for a number of reasons, from the timing, to the legal team, to the fees involved. While David Boies had solid liberal credentials, Ted Olson was a notorious conservative litigator, and as such his motivations for taking the case were suspect. And while most civil rights cases are litigated pro bono, this case generated more than $6 million in legal fees. Meanwhile, the movement’s carefully orchestrated strategy deemed it too soon for a federal case, and this was perhaps true, given that SCOTUS eventually ruled that the proponents did not have standing to defend the statute, thereby delaying a fifty state ruling until Obergefell v. Hodges in 2015. However, as Yoshino argues, the door was inarguably open, and someone was going to walk through it.

At the trial court level, people on both sides were nervous about the presiding judge, Vaughn R. Walker. His trial record had earned him a reputation of being anti-gay, but on the other hand, his own homosexuality was something of an open secret. No one spoke about it, but he brought his long-time partner, a doctor, to public events with him. Neither side wanted to make much of an issue of it at the trial level, but when the Supreme Court reinstated Judge Walker’s decision by ruling the proponents of Prop 8 did not have standing, they began to cry foul, arguing that Walker should have recused himself from the case. Walker was also controversial because he sought to broadcast the trial, although this was eventually disallowed. The proponents tried to argue that the prospect of recording and broadcast had intimidated their expert witnesses, leading them to field only two at the trial, although they extensively cross-examined the plaintiff’s witnesses.

Though he clearly favours marriage equality, Yoshino is generally quite fair to the opinions of his opponents. In an effort to untangle the broadcast debacle, he follows up with the withdrawn witnesses for the proponents, trying to ascertain why they withdrew from the trial. While some did indeed cite worries about the broadcast, Yoshino’s examination of the testimony they were supposed to offer shows how unlikely most of it would have been to hold up in court. Indeed, most of the witnesses who withdrew had tanked badly in deposition, withdrawing only after it had already been determined the trial would not be broadcast. On the other side, Yoshino also points out whenever he thinks opponents of Proposition 8 were deliberately misinterpreting the proponents’ views, usually for public relations purposes. And he can afford to be generous, because so few of the claims advanced by the Prop 8 supporters hold up under legal scrutiny.

In his examination of the trial, Yoshino lauds the technique of the plaintiff’s legal team in intermixing personal testimony with expert witnesses, arguing that “the lay witnesses kept the testimony from feeling dry, while the experts kept the testimony free feeling idiosyncratic.” Perhaps utilizing a similar technique, Yoshino mixes in personal anecdotes, often starting or finishing a chapter with a personal touch. At the end of chapter six, he recounts how, although his family had long accepted his relationship, it wasn’t until he and his husband were able to legally marry that his parents presented them with a family heirloom. In recognizing this strength, then, it is interesting that he overlooks an element of Windsor that, aside from the legal precedent, makes it loom so much larger in the public memory than Perry. Edie Windsor and Thea Spyer have an exceptionally compelling story, and one that was adeptly highlighted by Windsor’s trial team. By contrast, Kristin Perry and Sandra Stier, and Paul Katami and Jeff Zarrillo hardly play a role in the book about their case. Though he lauds human stories, Yoshino remains an academic, and his dissection of the case, though well explained, will certainly be more detailed than most of the general public will be interested in reading.

From a legal perspective, Yoshino makes a persuasive argument for the significance of the case, citing numerous lower court decisions that have relied on the precedent. He also argues well for the importance of the fact that it went to trial rather than being decided on summary judgement, which is what both sides initially wanted. In that respect, Speak Now is a paean to the ceremony of the trial that is sometimes overly romantic, even as Yoshino admits he only believes that “for inflamed social controversies, trial may be the least imperfect means of getting at the truth.” Although the outcome is known, and although Perry is often considered anti-climactic, especially along-side Windsor, Yoshino does manage to make it seem riveting, provided you are at least a little bit of a legal nerd.

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