incidents and accidents, hints and allegations

First: You're Always Coming Out, by thefourthvine.

Coming out is supposed to happen in One Big Moment. Usually your One Big Moment involves coming out to your parents; sometimes, especially in fiction, it's coming out at a press conference or in front of an audience or something. But wherever it happens, the concept is the same: in that moment, your whole life changes. Before, you were closeted and ashamed, and after, you become open and honest. You have chewed your way out of the cocoon of secrecy to emerge as a beautiful gay butterfly!

[ . . . ]

So my One Big Moment was -- not. It was not big. It was not dramatic. It was, to be honest, pretty comical. [ . . . ] It didn't even manage to be a single moment, since I spread it over most of a day.

This was probably much better preparation for the rest of my life than I thought at the time.

Second: untitled post at imreallybad, which is very short, so in full:

bisexual people passing as straight when they’re in a straight relationship is not “passing privilege.” it’s erasure. it’s assimilation.

that’s like saying that femme lesbians have privilege over butch lesbians. invisibility might keep people safer on a micro-level which is fucked up, but it’s all based on people thinking they can tell who’s queer & who’s straight just by looking at them, which is infinitely problematic and painful.

don’t alienate queer people who are assumed to be straight. invisibility is a symptom of hetero-normativity, not a privilege.

With regard to this one: I agree with the first sentence of the last paragraph, but I'm not entirely convinced by the last. Or maybe I'm not thinking of "privilege" in a sufficiently narrow/term-of-art sense. But the day-in, day-out that thefourthvine describes? I'm in a heterosexual relationship, and as a result I don't have to do that.

Don't get me wrong—invisibility sucks! It's why I bothered to come out in the first place! But, seeing those posts in that order . . . I don't know, it just felt like a post I should make.

(And now, having failed to come to a better conclusion, I must take my dull self off to do some dishes and make the kids' lunches. Talk among yourselves, if you like.)

Three quick comments I found interesting:

• Dahlia Lithwick on the difference between judicial activism and judging; also on how "when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what's constitutional."
• Kenji Yoshino on the potential wider legal consequences of the decision. I note that the decision explicitly refused to make immutability a requirement of traits deserving the highest legal protection, as Yoshino argued in Covering.

  (Also, it is amusing to contrast his and Lithwick's characterizations of the way the decision is written.)

• The Slacktivist considers people who are sincerely opposed to same-sex marriage for religious reasons and wonders "why these friends and brothers and sisters of mine think that such theological arguments can or should be persuasive to those who don't share our religious perspective."

In Covering: The Hidden Assault on Our Civil Rights, Kenji Yoshino argues for a new way of looking at discrimination and civil rights. As the title indicates, this centers on the concept of covering, or downplaying a disfavored trait to blend in:

Famous examples of covering abound. Ramón Estévez covered his ethnicity when he changed his name to Martin Sheen, as did Krishna Bhanji when he changed his name to Ben Kingsley. Margaret Thatcher covered her status as a woman when she trained with a voice coach to lower the timbre of her voice. Long after they came out as lesbians, Rosie O'Donnell and Mary Cheney still covered, keeping their same-sex partners out of the public eye. Issur Danielovitch Demsky covered his Judaism when he became Kirk Douglas, as did Joseph Levitch when he became Jerry Lewis. Franklin Delano Roosevelt covered his disability by ensuring his wheelchair was always hidden behind a desk before his Cabinet entered.

The central argument of the book is that covering is an assault on civil rights because it is an assault on autonomy. If one has a right to be something, one has the right to do the things that one feels are part of that identity. Otherwise, "the demand to cover . . . is the symbolic heartland of inequality—what reassures one group of its superiority to another." In other words, though assimiliation can be necessary for peaceful co-existence, its dark side also should be recognized.

The book is a blend of memoir, history, and legal analysis. It begins with a chapter of memoir, charting the author's "struggle to arrive at a gay identity." Yoshino did undergraduate and graduate work in literature before switching law when he accepted his sexuality—because, he writes, "A gay poet is vulnerable in profession as well as person"—and all of the autobiographical portions of the book are elegant and precise. And in the later chapters Yoshino moves between memoir and history or legal analysis with a remarkable fluidity, never jarring me in the transition.

After the context-setting opening chapter, the book divides into three parts. The first is an examination of gay history, which is itself divided into three parts: conversion, or attempts to change sexual orientation; passing, or attempts to hide sexual orientation; and covering, or attempts not to flaunt sexual orientation. Each section emphasizes how it is still a current problem. Conversion lives in the idea that homosexuality is "contagious" and therefore children need to be protected from the promotion of homosexuality in schools, and passing in the U.S. military's "don't ask, don't tell" policy. And both can co-exist with covering, such as in custody cases:

[When denying] custody to a lesbian mother in 1990, a Louisiana appellate court cited "open, indiscreet displays of affection beyond mere friendship . . . where the child is of an age where gender identity is being formed." If acceptable sexuality for same-sex couples is limited to the appearance of friendship, then the expectations for parents are clearly not orientation-neutral.

Notice as well why such covering is required—parental flaunting is dangerous because it could convert a child whose "gender identity is being formed." All three demands for assimilation are simultaneously in play—because children must not be converted, parents must pass to their children and cover to the courts. The shifts from conversion to passing to covering . . . are shifts in emphasis.

The book then considers covering as applied to race and sex, drawing its examples mostly from the employment context. One of the new wrinkles it examines is reverse covering, particularly with regard to women. For most non-dominant groups, the pressure to reverse cover comes from other group members. Women, however, are pressured to cover and reverse cover at the same time and by the same outside group (men), that is, "to be 'masculine' enough to be respected as workers, but also 'feminine' enough to be respected as women."

(Though the book focuses on groups currently protected by civil rights law, because it's written by a law professor, the book takes care to note that everyone covers in ways small and large: "the mainstream is a myth. . . . All of us struggle for self-expression; we all have covered selves.")

Finally, in the shortest section, the book looks at models of civil rights law. It considers two areas in which the idea of accommodation is supposed to be recognized, religion and disability, and examines the pressures towards assimilation within those areas of law. It then argues for a new model of civil rights:

• The law right now tends to prohibit only discrimination based on immutable traits. This is misguided: the question should not be whether a person can change, but whether the person should be made to change.
• One way the law can do this is by focusing on common liberties/fundamental rights, rather than on whether group X needs additional protection. This is partly because courts are more likely to be comfortable with such a formulation, and partly because the group X formulation brings up the question of what's essential to being part of group X, which is dangerously near stereotyping.
• The law is limited in effectiveness and appropriateness when it comes to covering:

  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.

  Instead, civil rights law should be part of broader attempts to view ourselves and others with compassion and understanding.

On the whole, I think this is a well-written, useful, and accessible book. It's true that unless carefully deployed, the idea of covering could reinforce stereotypes. As a colleague of Yoshino's puts it, "One way minorities break stereotypes is by acting against them. If every time they do so, people assume they are 'covering' some essential stereotypical identity, the stereotypes will never go away." For this reason, the book attempts to emphasize individual autonomy and authenticity, rejecting demands to reverse cover as well as cover; I think this bears repeating, because it strikes me as the kind of point likely to get lost in general discussions. Also, because describing solutions is harder than describing problems, the final section feels a bit slight (and also strikes me as having somewhat more jargon than the prior sections). However, by targeting a general audience, the book necessarily limits the amount of legal implementation details it can offer.

The idea that everyone covers immediately resonated with me, and I have begun thinking about my own covering and whether all of it is necessary or useful. I hope that when others recognize the concept, they will do the same, and in the process gain awareness of and empathy for those who are pressured to cover without good reason.

(The book's preface, which functions as a short summary, can be read online, as can the scholarly law article which originated the concept (choose "View as PDF" from this Yale Law Journal page).)

(ETA: see also a long New York Times article by Yoshino, The Pressure to Cover, which functions as a long (5,000 words) summary. Thanks to ckd for the link.)

[Cross-posted to my booklog.]

Blog-like items.

• A Washington Post article on World Trade Center fraud. Which was very little compared to the overall size of relief efforts, but fascinating to read about all the same.
• A droll WP article about a Democratic candidate forum hosted by the Human Rights Campaign:

  With that [introduction], seven of the nine Democrats -- only Sens. John Edwards and Bob Graham did not attend -- take the stage in a systematic effort to say, in a collective manner of speaking, that some of the Democrats' best friends are gay.

  Indeed.

• I frequently disagree with posts over at the Volokh Conspiracy, but Eugene Volokh has posted a cogent series regarding gay marriage, trying to look at the arguments offered against it in a concrete manner, rather than tossing around vague abstractions. Start with "How Sweet" and scroll up and up, to (so far) today's post "Still More on Gay Marriage".
• Song lyrics of the day, courtesy of my morning commute CD:

  Wouldn't be here if the Athenia hadn't sunk
  Or if dear old dad hadn't got so drunk

  From the Old 97's "Rollerskate Skinny," off Satellite Rides. A close second is this verse from the same song:

  Ain't nobody gonna see eye to eye
  With a girl who's only gonna stand collarbone high
  Rain's gonna come in fair-sized drips
  We're gonna go to heaven wearing paper hat ships

  but that can't match the sheer "Huh?" value of the first.

Texas's law prohibiting same-sex sodomy has been overturned, on the absolute best of the grounds offered to the court.

The AP has the PDF of the majority opinion up already, and at the bottom of page five I started jumping up and down in my chair:

The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

Wow. Wow. Wow.

And explicitly refusing to decide on Equal Protection Grounds, because if so, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."

(O'Connor concurs in the result only on Equal Protection Grounds, but there's still a majority for the privacy argument: so the answer to that question is "no.")

The final upshot:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. . . . The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.

Out of respect for my current happiness, I shall pointedly ignore Scalia and Thomas's dissenting opinions. Wow.

[ Edited to add: Professor Balkin has a good, more thorough breakdown of the decision, with some comments about the broader implications. ]