Kenji Yoshino's "Covering"

Kenji Yoshino, a brilliant young law professor at Yale Law School, has just published Covering: The Hidden Assault on Our Civil Rights.  I haven't (yet) read the book, but I did read his adaptation in the New York Times Magazine last week (unfortunately, it is now only available on a subscription basis) as well as numerous book reviews.  Also, I had the pleasure of hearing him lecture on this topic when I was a law school student.  I think Yoshino is brilliant and erudite, and his work is provocative.  But in certain ways I also think he is wrong.

First, a brief overview.  My apologies if I don't do his argument justice.  Yoshino maintains that our traditional view of civil rights, based on principles of equality, is too limiting.  Civil rights law protects from discrimination based on immutable qualities (race, gender, national origin, religion (query whether religion truly is immutable), and (in some jurisdictions) sexual orientation).  It does not protect behavior, however.  For instance, the law protects a black person from getting fired on account of being black, but it does not protect her from getting fired for "acting" black.  (The example used by Yoshino is a black woman who wears her hair in a distinctively black style.)  As a result of this lack of protection, people must "cover" their true natures and identities.  They aren't passing as something they aren't, but they are covering: muting their own qualities in order to "fit in" with the mainstream.  Yoshino points out that everyone covers--everyone has some trait or traits that she try to mute in order to be accepted as normal--and argues that this limits the full range of human identity and expression.  In short, he favors a liberty-based vision of civil rights over an equality-based vision.  In a wise and humble move, though one that might leave someone searching for answers unsatisfied, Yoshino concludes that the change he envisions in the civil rights model will not come from courts, and ultimately not even from the law itself, but rather from collective understanding, tolerance, and embrace of the range of human behavior and expression.

I agree that we should be far more tolerant of differences in expression and behavior than we currently are.  As a practicing Jew I am always aware of my minority status within the dominant secular and/or Christian culture, and at times I feel the pressure to cover.  That pressure can either be socially imposed or internally imposed.  It can be a difficult feeling, and I'll bet that each of us, as Yoshino says, covers in some way or another.

At the same time, however, I strongly believe that there is a value in conformity.  It seems to me that the melting pot ideal--with all of its limits--is still a worthy ideal; and surely the melting pot calls on us all to conform and cover.  I fear that Yoshino's argument, if taken to its logical conclusion, leads to a world in which we can all respect each other--a laudable goal--but in which we cannot talk to each other.  After all, our communication and identification is based on our common and shared experiences.

Thus, I do agree with Yoshino that a black woman should not be fired for wearing her hair a certain way; that a woman should not be fired for marrying another woman; that an orthodox Jew should be permitted to wear a kippah (yarmulke) in the military; and so forth.  So insofar as Yoshino is calling for greater tolerance on the part of individuals and employers, I strongly agree with him, and it strikes me that this isn't a particular radical position.  But insofar as he envisions a future in which we embrace the idea that there is more that divides us and our behaviors than there is that we share, I am very wary.