Legal Literature

Law and Literature

THE LAW IS LIKE AN ANECDOTE, the legal scholar Lon Fuller wrote in 1940, and it changes as each generation retells it. As culture develops, different aspects of the story become more important, or less. While those who advocate “strict constructionism” prefer to view the law as a static artifact, many scholars and judges believe, as Fuller did, that law can and must absorb society’s changing values. On these grounds, judges can justify broad, new readings of the law.

Conceived of this way, law is a story, and law can respond to stories as well. Yet judicial opinions noted as progressive have tried to distance themselves from the powerful stories that brought people to court in the first place. In Brown v. Board of Education, for example, the lawyers for the black schoolchildren produced stunning testimony at trial that black children overwhelmingly preferred white-skinned dolls to dolls with black skin. The study on which the testimony was based isn’t discussed in the Supreme Court opinion, though the tale it tells has become one of the most famous unearthed by the litigation.

Law’s prickly relationship to literature and the literary process is a specialty of 36-year-old Yale Law School professor Kenji Yoshino. A prominent scholar in antidiscrimination law, Yoshino recently published an article drawing parallels between Plato’s Republic, where poets were banished from the city for inciting the public’s imagination, and current American jurisprudence. Yoshino took as one example so-called “victim impact” statements, narratives from victims and their families that are given to a trial court before sentencing. The Supreme Court has tried to rid the law of them—and the intoxicating influence of storytelling—for fear that law will lose its sheen of objectivity. Yoshino concludes that American law should welcome literature’s narrative form, though only when it can help judges and juries do their jobs.

This view of literature—as a resource for the law—drives Yoshino’s new book, Covering, a hybrid of memoir and manifesto that takes as its target the outmoded, if noble, posture of current civil rights law. According to Yoshino, the current doctrine is mired in group-based identity politics, driven by calls for equality. To sue successfully under the Equal Protection Clause of the Constitution’s Fourteenth Amendment, a group claiming discrimination has two options. It can argue that it has been denied a fundamental right, like the right to vote. Or it can contend that the law in question employs a “suspect classification”—that it unjustly singles out a particular group. To be successful in arguing that it has been penalized by a suspect classification, a group must show that people in it have historically been victimized and deserve greater protection from the courts.

Courts evaluate most laws on a lax “rational basis” standard and presume that they are legal under the Constitution. But groups that have special status are entitled to a more intense investigation of laws that may discriminate against them. Courts give strict scrutiny to laws that allegedly discriminate on the basis of race, and they give an intermediate level of attention to laws that may discriminate on the basis of gender. Since the 1980s, gays and lesbians have been lobbying, unsuccessfully, to receive some standard of review higher than “rational basis.” Few groups can succeed at this task. In the 1980s, the Supreme Court overruled a lower court decision that mentally retarded people were entitled to intermediate review of laws they found discriminatory. Because equal protection law forces groups to highlight their differences and plead victimization, it may contribute to rather than mend the Balkanization of American society.

Taking his cue from the Supreme Court’s 2003 decision in Lawrence v. Texas, which overturned antisodomy laws, Yoshino argues that law will move forward only by returning to concerns about liberty or, more specifically, personal autonomy. The majority opinion in Lawrence put equal protection arguments to the side and held that criminalizing sodomy violates a basic constitutional freedom. To understand why liberties like sexual freedom matter, we must understand what it means to be human. And so Kenji Yoshino recounts what it is like to be one human in particular: Kenji Yoshino.

A gay Asian-American who writes poetry on the side, Yoshino offers a lush, frequently elegant account of how he learned to accommodate each of these three non-mainstream identities. The style here is not just pop egotism. It is a deliberate step toward changing the law. Yoshino’s literary approach strives to provide the kind of evidence that influences judges, consciously or subconsciously. By providing resonant stories about one person’s lived experience, Yoshino’s goal is to help bring about legal changes that can touch many.

THE KENJI YOSHINO STORY, specifically his coming out story, takes place in three phases: conversion, passing, and covering. Each is a step on the path toward self-acceptance. In the conversion phase, he tried to make himself straight. Then, in the passing phase, he allowed others to believe that he was straight. Finally, in the covering phase, Yoshino could come out to people, but he avoided flaunting his homosexuality.

As he works through his story, Yoshino points out that this pattern describes the gradual assimilation of gays into society in the past century. First, society tried to convert gays, usually through psychotherapy. After the gay rights movement took off in the 1970s, society switched into a passing phase, eventually producing mottos like “Don’t Ask, Don’t Tell,” which in effect forced gays to pretend that they were straight. Now, society has moved to the covering phase, when gays feel pressure to act “straight,” even though they are not asked to deny their sexual orientation.

“Covering” was originally described by the sociologist Erving Goffman. He noted, “It is a fact that persons who are ready to admit possession of a stigma . . . may nonetheless make a great effort to keep the stigma from looming large.” For Yoshino, covering meant not outwardly expressing homosexuality to his colleagues and the Yale community. For others, covering may mean that a woman, in order to get a job, never mentions being a mother. Or that a black woman straightens her hair instead of braiding it. These concessions sound trivial but, in Yoshino’s argument, they deprive people of their right to be happy, and to be happy with themselves.

In one of the book’s most memorable scenes, Yoshino describes a boisterous crowd of gay couples boarding the train from Fire Island, bound for New York City. As they get close to the city, the party-like atmosphere, full of open affection and noisy glee, fades to gray. The men are sitting quietly, barely touching and speaking softly. This, Yoshino says, is covering, and illustrates how it saps so much from society.

This pattern of private exuberance and public restraint also reflects the development of gay rights law over the past two decades. As Yoshino convincingly argues, the courts protect gays at a minimum level, thanks to Lawrence, but have refused to protect gay people who have adopted an “in your face” homosexuality. Most courts have refused to extend this minimum protection to same-sex marriage. Gay adoption rights have met with more success, though Yoshino discovered that state courts tend to grant adoption rights to gay couples who do not flaunt their gayness, or even attempt to describe their relationship to their children.

While Yoshino’s 2002 Yale Law Journal article “Covering” had already identified the covering phenomenon as relevant to the law, the book version rallies the forces of narrative to put a finer point on the argument: Forcing gay people to cover is a diluted version of earlier demands to convert, or to pass as straight, and, as those demands did, it violates a basic constitutional liberty. Yoshino’s memoir aims to make this point stick. It shows the insidious effects of a form of social repression.

Yoshino is a skillful narrative guide with a gift for describing the small dramas of still situations. In a particularly moving account, Yoshino recalls going shopping in London. At one shop, he tries on a gaudy blue brocade vest, which evoked for him everything he had never been able to express about himself. “I could not decide whether it looked ridiculous,” Yoshino wrote of the experience. “It did the work outlandish clothes do for us—it drove my invisible difference to the surface and held it there, relieving my psyche of that work.” Yoshino’s relief is palpable. These moments of honest, graceful introspection crop up throughout the autobiographical parts of Covering.

Yoshino does indulge his love of language to excess in places. In the first few pages of chapter one, he recalled observing a soccer practice during high school, where he “watched those boys scissor the air with their blond high school legs. Their bodies hummed to a frequency not my own as balls sailed fluently into nets.” You feel guilty snickering at the passage, because Yoshino’s earnestness makes you feel like you’re laughing at that same confused boy.

You also have to wonder whether Yoshino is the right person to tell lawmakers the story of what it means to be an outsider. Exeter and Harvard, followed by Oxford and Yale Law School—his résumé could not place him higher in the ivory tower. Yoshino never trumpets these achievements as out of the ordinary, and for him these revered institutions were oppressive in their own ways. One law professor instructed the newly hired Yoshino to avoid writing on gay rights if he wanted to get tenure. Yet it’s questionable whether anyone with the privilege of walking the halls of Yale Law School—let alone being hired, tenured, and cherished there, as Yoshino is—makes the most compelling avatar for the unrecognized suffering of gay Americans.

WHAT MAKES COVERING RADICAL, then, isn’t the Yoshino argument, which he’s made before. Or the Yoshino story, which is page-turning as a result of its style but not its story. Rather, it is Yoshino’s questioning of form by breaking it down and reconstructing it as his own. In his book, he gingerly maneuvers between memoir and straightforward analysis. Typically, the first person hasn’t appeared in legal argument, which must maintain its posture of objectivity even as it handles intensely personal situations.

Switching literary dance partners is a defiant move because it suggests that professors who try to find a way to unify the law under a single theory have been myopic. History, personal history, and legal history account for slices of the argument, but none can stand without the others. The medium here may not be the entire message, but it is the most interesting part.

Just as legal argument is an unreliable tool of persuasion, this odd, endearing volume testifies to the limits of law itself as an engine of social change. Poignantly, Yoshino investigates cases where attorneys sued their employers for discrimination—and lost. One woman was fired from her job as a state government lawyer after her employer learned about her plan to marry her lesbian partner. A black man lost a discrimination lawsuit, which he brought after not being made a partner at his law firm—and after spending years covering for his race. Yoshino uses these examples as if to say that even lawyers cannot figure out how to win with the law.

The best way to make progress, Yoshino concludes, is to move beyond the current law and law altogether. According to Yoshino, civil rights lawsuits should focus, as the Lawrence opinion does, on individual rights, which unify all groups around common values. Instead of trotting out marginalized groups clamoring for special status, courts would ideally say that all people have a right to be who they want to be.

This is a nice idea, and a romantic one. A new jurisprudence of liberty may even be attainable. Yet it is the unequal treatment of minority groups that makes us realize what our liberties actually are. The right to keep law out of the bedroom has developed only because certain groups—first unmarried people, then interracial couples, now gays and lesbians—have been stigmatized for what they have done there. Though he doubts the continuing usefulness of equal protection law, Yoshino might underestimate how much his contentions based on personal freedoms will continue to depend on equality arguments.

Even with these admonitions, Yoshino’s ultimate goal is to bypass the courts by creating a cultural consensus. Gay people should have conversations with straight people to show them that covering is painful at worst and dulling at best. When gay people are asked to assimilate, they should ask why, and the straight people who make those requests should have to present their reasons. Yoshino’s main argument is that we cannot rely on the law to do the work of the town square.

To understand why Yoshino has written a largely nonlegal book, consider Covering’s most powerful story. Yoshino retells a piece of legal folklore about Justice Lewis Powell’s vote in the 1986 case of Bowers v. Hardwick, which upheld states’ rights to criminalize sodomy—the case Lawrence overturned. Powell consulted one of his law clerks and told the clerk that he didn’t know anyone who was gay. The clerk was gay and known to be by friends and colleagues. Instead of coming out to his boss, the clerk made a personal argument that Powell should vote for the gay plaintiff in the case—which Powell did not do. He cast the tie-breaking fifth vote against the plaintiff—a vote the retired justice later confessed he regarded as a mistake. In the meantime, many gay legal professionals banished the clerk from their circles.

To force changes in the law, Yoshino believes you have to change the assumptions legal decision makers bring with them to the courtroom.

THE END OF COVERING IS BOTH TRIUMPHANT AND FUNEREAL. Yoshino has put the law aside. He argues that we should leave behind equality doctrine for a new, radical focus on personal liberties that the Supreme Court may be unlikely to pursue beyond Lawrence. He argues that law generally should take a backseat to cultural change. Litigation should give way to conversation. In making these claims, he puts legal forms—the law review article, the scholarly legal book—aside, in favor of this more palatable nonfiction style.

Yoshino wants this book to be heard, not simply read. He wants it in the mainstream, and he downplays the law to help the book get there. You might say that he covers for being a lawyer. Of all of Yoshino’s many identities, his lawyer self is the one he gives the least credit. The law captivates him as a student, but primarily as an instrument that helps him come to terms with his other identities—being gay, being Asian-American, even being a poet.

It’s no wonder Yoshino clings so tightly to other identities. Lawyers argue in ways that are technical and obscure, using language that is often brittle, and explaining premises with exacting, exhausting precision. Legal argument can be a source of frustration even for lawyers, requiring them to perform acrobatics to pull compelling points out of ambiguous doctrine. While he says nothing to indicate that being a lawyer carries a stigma on par with that of being gay or being Asian-American, Yoshino makes clear that, as far as he’s concerned, being a lawyer is not enough anymore to make people listen.

It’s an uncomfortable conclusion to receive from a professor who is a rising star in the field of constitutional law. Yoshino’s work has already been cited by several courts around the country, including the Supreme Court in the dissent by Justice John Paul Stevens against the decision allowing the Boy Scouts to ban gay leaders. To law professors, court citations are hard-earned badges of honor. In Covering, Yoshino mentions these achievements only casually. Legal arguments won that recognition, he says, but they won’t win the culture war.

Judy Coleman is a third-year student at Yale Law School and edits The Pocket Part, the online magazine of the Yale Law Journal.

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