Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law. Prior to moving to NYU, he was the inaugural Guido Calabresi Professor of Law and Deputy Dean of Intellectual Life at Yale Law School, where he taught from 1998 to 2008. He received his undergraduate degree from Harvard College, took a Rhodes Scholarship to Oxford University, and earned his law degree at Yale Law School. A specialist in constitutional law, antidiscrimination law, and law and literature, Yoshino has published in major academic journals such as the Columbia Law Review, the Stanford Law Review, and the Yale Law Journal. He has also written extensively in other popular venues, such as The Boston Globe, The Los Angeles Times, The New York Times, and The Washington Post. He has appeared on The O'Reilly Factor, Washington Journal, and The Tavis Smiley Show.
He is the author of Covering: The Hidden Assault on Our Civil Rights (2006) and A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice (2011).
Question: What inspired you to write?
Kenji Yoshino: Well the book itself is an outgrowth of my work in civil rights, particularly in gay rights. And Covering is the idea that Erving Goffman, who’s a sociologist, developed in 1963. And Covering is the idea that you downplay aspects of your identity even if you’re willing to disclose that you have that identity. And so people often ask me what the difference is between covering and passing, because I think passing is much more familiar to us. The difference between covering and passing is that in the case of passing I “pass” to you as a straight person. So you don’t even know that I’m gay. In the context of covering, I say to you, “I am gay,” but I engage in all kinds of behavior that downplay that stigmatized identity. And this is true across all stigmatized identities. So Erving Goffman with his characteristic acuity gives the example of FDR. So Franklin Delano Roosevelt was disabled and he was in a wheelchair, but he . . . and he didn’t hide that from anyone in his cabinet. But whenever his cabinet entered, he always made sure that he was seated behind a table before they came in. Now he wasn’t passing, right, because everyone in his cabinet knew he was in a wheelchair. But he was covering making sure that his more conventionally presidential qualities – I’m white, I’m a man, you know I’m a powerful person – were in the foreground of the interaction and his disability was in the background of the interaction. And so what I try and do in this book is I begin with my own individual story saying there was a moment in my adolescence when I just wanted to concert to being straight. You know so that’s the first phase of assimilation – conversion. Then the second phase is passing, and the third phase is covering. And the second phase when I went to law school, I said to the person whose class I wanted to take who was teaching a class in sexual orientation and the law, “I really wanna take your class. I’m gay, but I’m not really sure if I wanna come out to the entire law school yet. And so I’m afraid to take your class because if my name shows up on that class list, and if I show up in that class, I feel like I’m essentially outing myself to the entire law school community.” And he was wonderful because he said, to my surprise, don’t do this. Come out in your own time. Don’t come out in the law school’s schedule. But if you take the syllabus, and you buy the casebook, and you read along with the class, then I will actually meet with you whenever you want to go over the materials. And if you’re too scared to come to my office because you fear that that will out you to the law school community, I’ll meet with you in any classroom in the law school. So this . . . I should just name him because he’s a hero of mine, Bill Rubenstein. He worked for the ACLU. He’s now a professor at Harvard. He actually gave me an individual tutorial on the subject, and that was a large part of why I decided that I wanted to do this particular work. Now flash forward a few years. I’m lucky enough to get a tenure track job at Yale. A colleague puts his arm around me. At that point obviously everybody knows that I’m gay. I’m writing on gay rights issues. It’s really important to me when I go on the job market that everybody knows that I’m gay because I wanna be done with the closet. And I’m naïve enough to think that I’m done with the closet and I don’t need to think about being gay anymore. But a colleague of mine puts his arm around me and he says, “Look Kenji,” . . . very loving, caring colleague who was totally in my corner. He said, “You’ll have a lot easier time getting tenure here if you are a homosexual professional rather than a professional homosexual.” And I knew exactly what he meant by that. He meant you’ll do much better if you are the constitutional scholar who teaches separation of powers, and federalism, and the Commerce Clause and all these old school topics who just kind of happens to be gay on the side. You know it’s in the air. People know this about you, but it’s not at the foreground of the interaction; than if you are the equal protections scholar who writes on gay rights issues; who writes briefs for the Supreme Court; who gets involved in gay activism cases and teaches courses on gay rights. And so for a while – I mean whether to my shame or not, I don’t even to this day know . . . But for a while I wanted to survive and so I took his advice. But I just felt like it was pointless, you know, for me not to be writing for my passions. Because the whole point of going into academia for me had been to be able to set my own agenda. And I wasn’t about to wait the six years it would take for me to get tenure to start doing that. And so what I did was I stopped covering. I just started writing these articles and these books, and engaging in activism that pertained to gay rights. And my colleagues all embraced that immediately, including the colleague who had put his arm around me, because they said this is the person that we hired. And where has this person been? Your fire has been missing for a period of time. And why were you writing on these other strange topics when we all knew that this is what you really cared about? And so what I try to do in those books is I try and argue, you know, to some extent assimilation is just a fact of life. So it would be silly for me to say, “Oh, well never cover. Expose yourself.” So I get all these funny letters now that I’ve written this book from people saying, “Oh, I read your book and you’ve inspired me to be open about my nudism in the workplace.” And I really just don’t wanna know about what that exactly means, you know? But I do think that it’s really important that we at least ask the people who are asking us to cover; or ourselves, when we impose that demand on ourselves as is so often the case, why we’re being asked to cover. And if the answer to that question is something like bias; you know or irrationality; or no reason at all – then I just wanna borrow a leaf from discrimination law or constitutional law and say those aren’t good enough. So one of the things that I’m borrowing from my legal education is what’s known as a reason forcing conversation; which is to say if I belong to a particular identity and I’m being burdened, or downplayed, or asked to hide that identity, I don’t have a right innately to express that identity. But I do at least have the right to draw the employer or the state into a conversation where the employer or the state is forced to disgorge a reason for why it wins in saying you have to suppress this part of your identity. And this would be the same for a corporation that said, “It’s fine if you’re a woman. We have no problem with your being a woman, but don’t be a mother.” Or it would be the same as a corporation that said, “It’s fine for you to be Latino in the workplace, but just don’t speak Spanish in the workplace. This is an English only workplace, and we’re gonna fire you if you lapse into Spanish – even if you’re talking to your family during a break, or even if you’re talking to a customer whose first language is Spanish.” In those contexts what I want is not the plaintiff to automatically win in every context, but simply for the employer or the state to be forced to articulate why that covering demand is being made. Because usually when people say, “I have no problem with you being a woman, but I just want you to downplay it,” what’s actually going on there is sex discrimination. And usually when the employer is forced to disgorge a reason, that sex discrimination comes to the forefront and the court can actually strike at it. And so what I’m saying in the book is it’s not just a juridical conversation. It’s not just a legal conversation. It’s also a conversation that we have in the workplace or in our social groups in a day-to-day way. Because I’m not gonna sue my colleague. I love my colleague. But there was a moment where I had to face my colleague down and say, “Look you told me not to write on gay rights. I thought that was really bad advice. And in fact there’s a way in which I experienced that as homophobic advice, and I want you to be really careful about giving that kind of advice to gay people in the future.” And I know you didn’t mean anything by it except for to try and help me. But oftentimes the things that we do to fit in are also the things that many people are gonna experience as discriminatory precisely because we have a world that is structured in a way that advantages people who are white; you know people who are men; people who are straight. And if we wanna disestablish that, we have to actually strike at the culture and not just make these moves of inclusion for people who just look different from us. Recorded on: 11/11/07
Last night three U.S. Supreme Court judges participated in the annual mock trial event in Washington D.C. Law professor Kenji Yoshino explains how these events use Shakespeare to teach us about justice.