« Apple Packer Settles RICO Case | Main | Constitution as Contract: Ramifications for the Use of Foreign Law »

Tuesday, January 24, 2006

Covering and Same-Sex Marriage

Covering is the muting or toning down of stigmatized identities.  Kenji Yoshino seems to believe that same-sex marriage is the refusal to cover.  In his New York Times Magazine article, he points to a case in which a young woman lawyer's job offer was rescinded after the employer discovered that she was planning to marry another woman in a private commitment ceremony; she might not have received this treatment for "just being a lesbian"; but thrusting her "lifestyle" onto the public in this way was just too much for the employer.  In other words, the employer wanted her to cover by keeping a low profile with respect to her sexuality. 

On the website devoted to his book, Kenji elaborates:

Gays routinely cover along all four axes: appearance ("acting straight"); affiliation (not making reference to gay culture); activism (avoiding the charge of being militant or strident about gay rights); and association (eschewing public displays of same-sex affection).

And surely he is right.  After all, same-sex marriage and marriage advocacy are public statements, behaviors, and displays that accentuate the stigmatized "gay identity."

But I think it is more complex.  In a strong sense, same-sex marriage is the very definition of covering.  Traditionally, "gay culture" did not revolve around marriage in any way.  And of course, that's no surprise: marriage and even the weaker substitutes were not available to gays and lesbians, and homosexuals were wholly rejected from society; why would their culture and identities revolve around traditional marriage and family?

As told by Jonathan Rauch and Andrew Sullivan, same-sex marriage advocacy is a conservative move.  If same-sex marriage advocates are successful, gay couples will look more like straight couples, not less; they will have mainstreamed themselves.  And when it comes down to it, a married gay couple living next door is likely to be less jarring for many straights than is what many straights envision when they think about "gay culture," which brings to mind a more open sexuality. 

In fact, it is for this reason that some gays and lesbians reject same-sex marriage.  They view it as, well, covering: muting their traits, preferences, priorities, and culture in order to "fit in" with mainstream culture, which prizes heteronormative marriage relationships.

I said earlier in the week that conformity can be a good thing--a way to allow us to live in harmony, to share experiences and a language.  It is precisely for this reason that I support same-sex marriage.  I think that marriage is a good thing; better for society and for the individual than the alternatives (though of course not better for everyone in every circumstance); allowing gays and lesbians to marry and encouraging them to do so is encouraging them to look and act more like me.  And asking someone to conform to the dominant heteronormative culture is asking him to cover.  No?

Posted by Hillel Levin on January 24, 2006 at 12:31 PM in Hillel Levin | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d83462918869e2

Listed below are links to weblogs that reference Covering and Same-Sex Marriage:

» Cover Four Defense from The Debate Link
Yale Law Professor Kenji Yoshino has published what looks to be a fascinating book, "Covering: The Hidden Assault on Our Civil Liberties". It also has its own website giving us the nickel explanation of the book's concepts. Essentially, Professor ... [Read More]

Tracked on Jan 24, 2006 10:13:18 PM

Comments

You make an excellent point. By the same token, unless we give some ontologically fundamental status to Marriage, some, many or most heteros who get married are doing the same thing. The (or a) new dimension along which authenticity would be limned would thus seem to be "attached" vs. "unattached." But would that be the same thing as "attached with the blessing (and benefits appurtenant thereto) of the State"? Very interesting question.

Posted by: Guest | Jan 24, 2006 1:27:16 PM

In other words, the employer wanted her to cover by keeping a low profile with respect to her sexuality.

A shame really. But I ask what was the law office covering? There is a remarkable amount of politics involved in law, as I'm sure you've seen. And by politics I mean one may be inclined to shop for a lawyer along value judgments they make. If this woman was in family law, and the employer expected her publicity would rattle the confidence of their clients ... I'm not sure. I suppose you can answer what you would do for yourself. I expect analogies in patent law, criminal law, and corporate law. A political style leaning along intellectual property, corporal punishment, and socialism might make a client lose confidence in ones determination to win a case.

Discretion is the perfection of reason, and a guide to us in all the duties of life. -- Walter Scott

marriage and even the weaker substitutes were not available to gays and lesbians, and homosexuals were wholly rejected from society

Its a fallacy to take the past ten or even hundred years and project into history what we find. Even when homosexuality was embraced above heterosexuality, being subject through martial traditions on boys in China, Japan, Rome and Greece (among other countries) marriage was never about homosexuality. And it isn't today. Amidst the growing popularity of homosexuality we see that people wind up with the same view as Dreadnaught, WhitePeril, and many other gays (as you recognized) who are confused as to why pretending to be heterosexuals is anything good for the movement. In that way, your argument seems to say that s-s marriage is covering and not something about homosexuality at all.

This isn't about Gays. It's about Marriage, Sex, and Responsible Fatherhood.

As told by Jonathan Rauch and Andrew Sullivan, same-sex marriage advocacy is a conservative move.

I think that movement has largely been abandoned. I noticed the "train wreck" (as said by an advocate of same-sex marriage) at Volokh when Dale Carpenter tried to present the conservative case there. I don't think his main goal was to convince marriage defenders as much as the liberals that a conservative case was the way to win the hearts of the people. He didn't convince the liberals, and wound up botching the case entirely. And only convinced the liberals there was no merit to that tack.

His channellings of Burke wound up reminding people that if anything the conservative case for same-sex couples is not for marriage, but for at most reciprocal beneficiaries. The incremental approach just didn't lead, as Carpenter tried desperately tried to show, to a federal all at once change in the marriage definition.

Dale's attempt to renounce the procreative basis in marriage as a anthropological device of species mating was even worse. It took less than 24 hours for him to abandon the attempt, saying it wasn't important to his case anyway.

Craig Westover attempted to establish a conservative case also, which I replied to personally...

Conservative Same-Sex Marriage 101 (part 1): Constitution Amendments and Judicial Activism

Gabriel Rosenberg tried to, and did a much better job of distilling the attempt at triangulation to a few sentences. I've come to call that argument the parent trap. Which really makes same-sex marriage more like a government coerced shot-gun wedding than a way to ensure the foundations of a family are strong to begin with.

Posted by: On Lawn | Jan 24, 2006 1:52:45 PM

I'll have to read the book. I looked at the article, and I'm still wondering: what's the line between good covering and bad covering? I understand what's supposed to be on either side (the extensionality) but I don't understand what Kenji thinks the definition is (the intensionality).

Posted by: Bruce | Jan 24, 2006 2:25:21 PM

Kenji makes this point in his book:

"I'm sometimes asked...whether I consider same-sex marriage to be an act of covering or flaunting. I think it is both. Along the axis of affiliation, marriage is an act of covering, as marriage has historically been associated with straight culture. This is why queers like Warner revile it and normals like Sullivan endorse it as an act of assimilation. Along the axes of appearance, activism, or association, however, marriage is an act of flaunting. This is why right-wing moralists object to it as a sign that gays are getting too strident in our claims for equality." Covering, p. 91.

I commend the book to everyone; it is not too long, and it is beautifully written. In particular, because the NY Times article was (necessarily) shorter than the book, and because Kenji is a complicated and sophisticated thinker, I commend it to those who feel that Kenji takes too simplistic a view of these matters.

Posted by: YLS '01 | Jan 24, 2006 3:15:33 PM

YLS '01:

Thanks for the info! That's great. Kenji and I are in total agreement then (on this point). Never did I think that he was a simplistic thinker on this or any other matter; and I was careful to base my opinion on the article and the website. And I do plan to read the book.

But I do wonder: with respect to gays, it seems that anything could be covering in one sense or another. For instance, the Jack character in "Will and Grace" plays directly to stereotypes of gays. (Same thing with "Queer Eye.") Apparently, straights are entertained by gays acting like they are "supposed" to act. Jack is conforming to straight conceptions of gays; he is the equivalent of the black woman who wears cornrows, I guess. So is Jack covering, or is he doing the opposite? Plainly he's not totally covering: his sexuality is very "in your face." On the other hand, he is conforming. So as with same-sex marriage, the answer is "both."

If that's the case, then what are we to make of it all? This issue is far more complex with respect to gays than it is with respect to FDR's wheelchair, isn't it? And if so, what conclusion are we to draw?

Posted by: Hillel Levin | Jan 24, 2006 3:26:29 PM

I get the claim that marriage is a kind of covering since it expresses solidarity with a longstanding heterosexual, conservative institution. However, the state of being in s-s marriage would seem to inevitably force other kinds of flaunting: talking about one's domestic life (standard fare in any social or workplace setting) would become an act of flaunting along the affiliation axis; the mere act of being involved in a s-s marriage could be regarded as an act of flaunting along the activism axis, since the issue has become so polarized; and interacting as most married couples do (even if just bringing your s-s partner to a work function or social outing) could be regarded as flaunting along the association axis.

Posted by: Dave | Jan 24, 2006 6:28:31 PM

Some of us think of assimilation, including same-sex marriage, as a form of queering the mainstream. Liberate people from a power-assymetric heteronormative model by normalizing a power-symetric gender-neutral model.

Posted by: Theo | Jan 26, 2006 5:29:20 AM

I just heard Kenji speak at NYU Tuesday night and it was amazing. So far all of the questions about "covering" that have been brought up on this thread are directly addressed in his book. Rather than try to explain what Kenji has already very poignantly written, I urge you all to find a copy of his book and read it.

Posted by: Mark | Jan 26, 2006 10:55:13 PM

Post a comment