covering: the hidden assault on our civil rights, by kenji yoshino

Covering: The Hidden Assault on Our Civil Rights by Kenji Yoshino
My rating: 5 of 5 stars

Covering is an argument for a new direction of civil rights advocacy: protecting individuals’ ability to live their full selves in our society. Yoshino argues that as much as we should protect minority populations from facing discrimination because of the color of their skin or who they love, we should not require individuals to “cover” the characteristics that align them with their minority population: traditional African-American hairdos, for example, or lack of makeup for a less stereotypically feminine woman. Yoshino weaves his argument with threads from his own lived experience as a gay man and an Asian-American man. He describes his own journey from conversion (hoping and pretending to be straight), through passing (recognizing his own identity, but never sharing), to covering (being out, but acting as “straight” as he feels society requires him to act).

As a bisexual, less stereotypically feminine woman, I can identity all three phases in the journeys of many of my myriad identifies. But what I will take away from this book and treasure in my heart is Yoshino’s unapologetic demand for justice. He quotes Justice Brennan’s dissent to the Supreme Court in a death penalty case: when the majority spurned the use of studies showing racial bias in criminal sentencing for fear that it would lead to challenges to al dimensions of criminal sentencing, Brennan offered that this argument seemed “to suggest a fear of too much justice.” Yoshino analogizes to civil rights, proposing that the same could be said about too much protection against discrimination.

Judicial efficacy and administration burdens aside, YES! We allow ourselves, as lawyers, to see the law as the blueprint, the walls of the house that we are allowed to decorate. Instead, we should see the law as the shelter we have built to protect ourselves, a shelter we can add to as our family grows larger. There is no restriction on the number of rooms. There is no such thing as "too much justice." Yoshino asked a mentor for advice as he stepped into the life of law professor. “He told me his only advice for the coming years was that I should be more myself, that instead of reasoning within the law as it existed, I should speak my truth and make the law shape itself around me.”


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futile arguments

exerpt from Futile Arguments:Lawrence v. Texas and the Supreme Court Bar, published in the Modern American. 


The current consensus in the literature and among Supreme Court litigators themselves is that hiring specialized appellate counsel is generally a good thing. Michelle Lore wrote an excellent article for The Minnesota Lawyer in 2007, detailing all the reasons a trial lawyer should hand off an appeal to an appellate specialist. Among other advantages, she points out the specialized skill set, familiarity with appellate judges, and the objectivity that new appellate counsel can bring to a case. She also notes the prestige that attaches to specialized counsel, recognizing that clients view appellate work as “a distinct service.”

These clients may be correct in their view. According to Kevin McGuire and Joseph Swanson, specialized appellate counsel achieve much higher rates of being granted certiorari (also
known as “cert,” or review on appeal) in the Supreme Court and possibly reach higher rates of winning cases. In his article, Repeat Players, Mr. McGuire examined the lawyers in all Supreme
Court cases between 1977 to 1982 to determine that “lawyers who litigate in the high court more frequently than their opponents will prevail substantially more often.” Kevin McGuire proposes that the more an attorney appears before the Court, the higher the likelihood of his success. Joseph Swanson takes a micro look at the certiorari process by examining three particular members of the Supreme Court bar in three particular cases, but arrives at a conclusion similar to Mr. McGuire’s: “One can only conclude that hiring experienced Supreme Court counsel to petition the Justices for review may improve one’s chances considerably.”

One consequence of the rise of the elite Supreme Court bar is that judges may expect something different, if not better, of the parties appearing before them than they have in the
past. According to Jennifer S. Carroll, appellate judges expect a different level of legal argumentation than trial judges. The “emotional pleas” considered the norm at the trial level, she says, would be “inappropriate at the appellate level.” In fact, she argues that “[a]pellate practice has evolved into a specialized area of the law, and justifiably so. The fundamentals of appellate advocacy—writing a simple persuasive brief, making an effective oral argument, and having a command of the appellate procedure—necessarily reflect effort, skill, and at the highest level, art.”

Even the Supreme Court agrees. The American Bar Association Journal interviewed Justice Antonin Scalia and Bryan A. Garner about their coauthored book Making Your Case: The Art of Persuading Judges. The book instructs appellate lawyers of at all levels on how best to write briefs, argue cases, and, ultimately, convince judges. When the Journal asked Justice Scalia his thoughts on the rise of the Supreme Court bar, the Justice said:

I think that there are a significantly larger number of lawyers who appear at least once a term and sometimes several times a term than when I first came on the court . . . . I think I can say that those who do it with great frequency and are paid a lot of money to do it because they are good at it are obviously going to be better—other things being equal—than a novice.

A litigator approaching her first argument in the Supreme Court may rightfully worry that this presumed level of competence creates an ethical duty to hire specialized appellate counsel.
Christine Macey compares the benefits of increased chances of being granted certiorari, more effective oral arguments, and the affordability of appellate specialists to the “novice lawyer’s”
obligations to educate her client and provide competent representation. Ms. Macey concludes that “although statistics show that experience matters at the High Court,” inexperienced attorneys may fulfill their ethical duties by comprehensively educating their clients and preparing adequately for trial. Moot courts, Supreme Court clinics, brief writing assistance, and online and print resources (including those coauthored by Justices themselves) are all resources attorneys may use to help them prepare.

Ms. Macey also discusses reasons that attorneys may prefer to not pass on their cases to appellate attorneys.

A lawyer may want to keep [a] case for legitimate reasons, such as client trust or superior knowledge of the facts. Alternatively, a lawyer may wish to keep [a] case for self-interested reasons. A Supreme Court argument is a once-in-a-lifetime opportunity for most attorneys. It could lead to television or newspaper coverage, as well as future business. Supreme Court advocacy is associated with prestige. . . . Legal fees may also motivate to keep the case to herself.

Some of these reasons may also be related to a lawyer’s connection with and passion for the particular cause implicated in the case. The lawyers involved in Lawrence v. Texas exemplify the way in which the rise of the Supreme Court bar can affect who argues which cases. To explore the rise of the Supreme Court bar, and specifically the role of Lawrence v. Texas
and impact litigation, in the lesbian, gay, bisexual, and transgender (LGBT) movement, I interviewed Paul Smith and Mitchell Katine and corresponded briefly with Suzanne Goldberg over email.

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drawing bisexuality back into the picture

excerpt from Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal Structure Ten Years After Bisexual Erasure, published in the Cardozo Journal of Law & Gender.

[I]f I am not free and if I am not entitled equal to heterosexuals and homosexuals then homosexual men and women have joined with the dominant heterosexual culture in the tyrannical pursuit of E Pluribus Unum and I a bisexual woman committed to cultural pluralism and, therefore to sexual pluralism, can only say, you better watch your back!
- June Jordan, On Bisexuality and Cultural Pluralism, in Affirmative Acts

INTRODUCTION

In 2000, Kenji Yoshino published a paper exploring the social erasure of bisexuality. He introduced the paper by empirically proving that bisexuality was invisible through a quick survey of popular news sources that featured volumes more articles about homosexuality than bisexuality. Once he showed that bisexuality was invisible, he made sure to distinguish between the incidental invisibility of bisexuality, perhaps because of the low number of bisexuals, and its deliberate erasure. Yoshino theorized that monosexuals—individuals who are
attracted to only one gender, such as heterosexuals and homosexuals—created an epistemic contract to erase bisexuality in social culture. He argues that monosexuals erase bisexuals in three ways—class erasure, individual erasure, and delegitimization—and proposes that monosexuals have three reasons for participating in and encouraging this erasure: “1) an interest in the stability of sexual orientation categories; 2) an interest in the primacy of sex as a diacritical characteristic; and 3) an interest in the preservation of monogamy.”

My article, written on the tenth anniversary of Yoshino’s seminal piece, is not an update on whether bisexuality has gained social visibility in the last ten years or an examination of whether invisibility is still maintained by a contract among monosexuals. Rather, I begin from the position that bisexuality is invisible in legal culture, like in Yoshino’s social culture, and pose two hypotheses for this invisibility. First, I believe that while Yoshino’s analysis retains viability when
analogized to the legal context—which he explores within sexual harassment jurisprudence—I propose that bisexuality is inherently invisible to the law, beyond the reach of deliberate erasure. A plaintiff’s bisexuality is only at issue in the law where there has been an affirmative outing. That is, in cases where sexuality is at issue, plaintiffs are presumed monosexual, and must either declare their own bisexuality or have it found for them. I explore this legal invisibility in two contexts in Part I of this article.


Second, I argue that where bisexuality is legally relevant it has been erased within the legal culture because it is complicated and muddles legal arguments that depend upon the binary of sexuality. Yoshino addresses this reliance on the binary of sexuality as a fundamental part of homosexual investment in stabilizing sexual orientation by erasing bisexuality, but I argue that this factor is much more prominent in legal culture than the social context. In Part II of this article, I use the suspect class analysis under the Equal Protection Clause to show how bisexuality
complicates legal arguments, and propose two solutions through which bisexuality can be introduced into the Equal Protection analysis without compromising sexual orientation’s suspect classification.

The erasure of bisexuality, representative of all sexual identities between 100% homosexual and 100% heterosexual puts the fight recognition of sexual and gender minorities at a disadvantage. Not acknowledging sexualities along a continuum, weakens arguments for granting rights to and preventing discrimination against the lesbian, gay, bisexual, and transgender (LGBT) community. I conclude with the proposition that inclusion of bisexuality, and indeed of all non-binary identities, is crucial for the LGBT civil rights movement.

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