Kenji Yoshino on Gay Rights
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).
Kenji Yoshino: Well again a great question, and a question that resonates with a question you asked earlier about the difference between status and conduct; of what it means to be gay as opposed to engage in a particular identity. Or what it means to being Japanese as opposed to engaging in practices like language practices that people would associate with being a national origin minority. My big project right now, other than the Shakespeare book . . . But in the civil rights realm my big project is really to try and move away from group-based identity politics to universal liberty projects. So let me be real concrete about what I mean by that. I wanna go back to that Justice Kennedy opinion in that 2003 case, Lawrence v. Texas. I think it was a critical and brilliant move for him to take something that came to the court as a gay rights case and to say this actually isn’t just about gay people. This is about all of us. I’m gonna frame this as a universal right to sexual privacy. The next term Justice Stephens made exactly the same move with respect to the disabled. Because a case came to the Supreme Court that was about whether or not Congress could force the states to make their courthouses wheelchair accessible. And what the United States Supreme Court said in that case was this is not about disabled people. This is about the right that all Americans to have meaningful access to the courts. And I want everyone to hear the difference between those two claims, which is to say that the first claim is, “Oh, poor disabled people who can’t walk up the courthouse steps, and therefore can’t come to answer criminal charges against them.” You know so that’s a kind of noblesse oblige. Here we are the able-bodied people who are, out of the goodness of our hearts, extending this privilege, this kind of special right to people who are disabled. That’s the equality claim. Able-bodied people can do something that disabled people can’t. A decade ago I would have been all for that claim because I was an equality guy. Now I see that civil rights has to proceed much more on the liberty ground because I think that this claim, the second claim, is much more persuasive, and that claim would go as follows. Don’t you think that all people in the United States should have the ability to access the institutions of justice in a meaningful way? And so if that means that the state has to pay for stenographic transcripts as an actual case in order for someone to file an appeal because they’re too indigent to do it themselves, then yes the state should pay for that. Otherwise the access to the court system isn’t meaningful. That person has not had his or her day in court. Similarly it’s not an access to justice to say, “Oh, well this courthouse is open to everyone. It’s just that you happen to not be able to come up the courthouse steps.” George Lane actually had to crawl up the courthouse steps the first time. And then the second time he said, “This is dignitary. I’m not gonna do this anymore. It’s too painful both to my dignity and to my body. I’m not gonna do it.” And then they said, “Okay you’re in contempt of court because you didn’t show up for your hearing.” You know that’s not meaningful access, and I think most Americans understand that. But I think it’s much more powerful to frame it as, “Don’t you think this is a right that all of us have?” rather than to frame it as a right that a particular minority has. So you just asked about minorities and gays. You know I think that that’s . . . disabled people as a minority. The earlier case was about gay rights. But looking forward, if we’re going to do same sex marriage in this country, which we are gonna do, you know I think that everyone needs to understand the claim here is not, “Oh, poor gay people need to get married because they are equal to straight people. And straight people have the right to get married.” The claim . . . That’s an equality claim. That can’t be the claim. The claim has to be the liberty claim of don’t you think all people in this country should be able to marry the one person that they love? And I think that all Americans are gonna understand that second claim much better than the first. I think it comes really differently to the American ear because it’s not about special rights. It’s about equal rights. It’s about a liberty that all of us hold. And so when I think about what we need to think about moving forward, especially . . . or really precisely because of what I said before about our explosive pluralism in this country, it’s to try and think about universal rights. Because when we talk about universal rights, like right to access a court, you know right to marry, you know right to have certain forms of privacy within the home, what we’re really talking about is what are the rights that you or I need to live a good life? We’re not talking about particular groups. And whenever we talk about particular groups, my worry is that in an increasingly pluralistic society where we have 63 different racial groups and more religions than ever before, etc., etc., that we’re just going to balkanize into separate little fiefs that aren’t talking to each other. And you know old style liberals like Arthur Schlesinger, Jr. – he wrote this book called The Disuniting of America a couple of decades ago – to, you know, Robert Putnam who . . . the sociologist at Harvard who recently released a study about diversity in America talking about the negative effects of diversity, at least in the short run in America, are really, really worried. People whose hearts are in a progressive place are very worried, as I am. I put myself right alongside them in saying that interest group politics and identity politics is breaking this country apart. And so what I want is us to move from an equality-based rhetoric which always focuses on different groups, to the liberty rhetoric which focuses on what binds us together as Americans rather than what drives us apart in order to actually do the civil rights of the future. So ironically when you say, “What do you think minorities and gays should do in the future?” my argument is I think that minorities and gays need to flip over from thinking about their claims as group-based equality claims to thinking about them in terms of universal liberty claims.
Recorded on: 11/11/07
Kenji Yoshino on group identity politics.