Monday, January 16, 2006


Covering New Ground

One takeaway from the Alito hearings, fitting to ponder on MLK Day, is just how stale, stilted, and unproductive our national conversation on civil rights has become.

You know the script by now. The Democrats indiscriminately lob accusations of racism at just about any one -- African-Americans included -- who dares challenge the orthodoxy of affirmative action or rule against a minority plaintiff in a discrimination claim. The Republicans grumble in indignation -- in the Alito episode, they even shed a few camera-ready tears -- and fall back into the cynically safe space of quota opposition.

Meanwhile, as the boys in the Beltway continue partying like it's 1979, another generation of black and Hispanic kids are being shunted into miserable public schools and a likely life of inequality and insecurity. Not exactly what Dr. King dreamed about.

The same sameness and emptiness is too often evident in the gay rights debate. In this script, the Democrats self-righteously and obliviously suggest that anyone who does not support gay marriage is a bigot. The Republicans, even as they deny they are homophobic, complain that gays are seeking "special" rights and are pushing their radical agenda on the rest of America.

Meanwhile, an important bill to protect gays and lesbians from being fired from their jobs because of who they love -- which unlike gay marriage has the support of about 80 percent of the American people -- sits gathering dust in the congressional docket for the past decade.

If it's hope you are looking for, at least hope of someone saying something original and thoughtful on the subject of civil rights relevant to today's America, check out this article in yesterday's New York Times magazine by Yale law professor Kenji Yoshino.

Yoshino, who is openly gay, raises alarms about what he views as a new, more insidious form of legal discimination in our society that force minorities to repress their identities to conform to norms of assimilation -- a phenomenon he calls "covering."

"Civil rights case law is peopled with plaintiffs who were severely punished for daring to be openly different. Workers were fired for lapsing into Spanish in English-only workplaces, women were fired for behaving in stereotypically "feminine" ways and gay parents lost custody of their children for engaging in displays of same-sex affection. These cases revealed that far from being a parlor game, covering was the civil rights issue of our time."

I do not buy all of Yoshino's arguments or judgments, but I found the article, which is adapted from a soon-to-be-published book, to be extremely timely and thought-provoking. That is especially true of Yoshino's surprising conclusion -- he makes the counterfactual case that raising public awareness and changing social norms, not the law, is the only practicable solution to this problem.

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