You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

The Prohibition Era

By Kenji Yoshino
(Random House, 268 pp., $24.95) 

IN 1998, A Missouri court granted custody to a lesbian mother, after finding that “the children were unaware of Mother’s sexual preference, and Mother never engaged in any sexual or affectionate behavior in the presence of the children.” Many courts have gone the other way, after determining that same-sex parents engaged not in overt sexual conduct that would be inappropriate for any parent to display before any child, but in displays of affection, such as hugging or holding hands, which clearly revealed the parent’s sexual orientation. Courts in these cases are not demanding that same-sex parents stop being gay, or even that they pretend not to be gay. Instead, they are making a demand that Kenji Yoshino (following Erving Goffman) calls a demand for “covering”: a demand not to express their identity in public and visible ways.  

The repression of a minority, Yoshino argues, does not end when it is permitted to exist in society, and is no longer forced to “convert” to some other way of being and acting. Nor does it end when members of the group are not expected to “pass,” concealing their minority identity from all but chosen intimates. Even when minorities who reveal their group membership openly are tolerated, they are often required to assimilate in ways that “cover” that identity. Thus, it was all right for the lesbian mother to be known as a lesbian, but not all right for her to hold hands with her partner. It is often all right for African Americans to be prominent in the workplace, but they have to dress for success and play nice, conforming their behavior to a stereotype invented by the dominant culture. 

An interesting example that came too late for inclusion in Yoshino’s account of “covering” has been the media’s treatment of the Olympic medal-winning speed skater Shani Davis. White society was all set to pat itself on the back when an African American finally medaled in the lily-white sport, and Davis would have been warmly welcomed into its bosom had he been cheerful, docile, and grateful. Stories of how Davis overcame his “gang-infested” neighborhood (he comes from my own neighborhood, Chicago’s Hyde Park, a multiracial university community that can be criticized as boring but not as gang-infested) were trotted out to prepare the way for a warm reception. Instead of gratitude and proper “white” behavior, however, Davis was spiky, brusque, and clearly annoyed at the press’s quite ridiculous treatment of his origins. He talked to Chicago newspapers, which treated him with respect and got his story right, but he turned a cold shoulder to the others. (“Are you angry, Shani?” a network reporter asked, as if that would be the unforgivable sin, when the white community was being so very nice.) A similar treatment often befalls African Americans who wear cornrows, or “talk black,” or in other ways refuse to make the majority comfortable. 

Similar stories can be told about other minorities. There was once a time when Jews were forced to convert to Christianity if they wanted to escape persecution. Overlapping with this time were times when many Jews persisted in their religion but kept it secret, “passing” as Christian, while revealing their Jewish identity to intimates. By far the most significant form of discrimination suffered by Jews in Europe and North America in the modern era, however, is the form that Yoshino calls “covering“: they may be full and equal (sort of) members of Protestant society if they talk and dress like WASPs, and do not flaunt their religion before others; in short, if they are not “too Jewish.” In the mid-twentieth century, upwardly mobile Jewish parents gave their children WASP names, urged them to avoid their too-Jewish peers, and made sure they went to WASP schools where they would get the “right” social connections. I know older Jews who flinch, even today, before “out” Jews of their own generation, because the expressions and mannerisms of those Jews are exactly what their parents drilled them not to display. 

Women, too, encounter a demand for “covering,” but in a more complicated, mixed-up form. At times, women are urged to adopt stereotypical male behavior. A female law student is urged to be aggressive and talkative, to wear a black suit, to mask her emotions, not to have children or to say nothing about them if she does. But at other times (and in other careers), women are penalized if their dress and manner are not “feminine” enough. How on earth any sane person could ever decode these social rules is beyond me. Our confusion is clearly revealed by Yoshino’s lists of women’s “masculine”and “feminine” characteristics, since many professional women possess most of the items on both lists: they avoid pastels and floral designs, and they are aggressive, ambitious, assertive, athletic, competitive, individualistic, and self-reliant; but they also wear earrings and makeup, are sympathetic and yielding, and perform “nurture” functions at work, “like counseling and mentoring.” So who would be surprised that women get criticized and downgraded from both directions: sometimes for being “too masculine,” sometimes for being not “masculine” enough? 

The story of any minority’s progress, argues Yoshino, can be charted by examining these three stages: first, the demand for conversion; second, the demand for “passing”; third, and last, the demand for “covering.” Not all three categories apply to all groups. Women were never asked to “convert,” for obvious reasons, or even to “pass,” and African Americans had no realistic option of “conversion.” Most minorities in America today, according to Yoshino, no longer face demands for conversion or passing—but all, to some extent, face the demand for covering, for assimilation to majority norms. And this demand, while less oppressive than the other two, is profoundly unfair, burdening minorities in ways that majorities are not burdened. 

Moreover, the demand is fraught with psychological danger. How can a person really have equality when she has to push some of her most deeply rooted commitments under the rug, treating them as something shameful and socially inappropriate? Surely the lives of gays in America have improved markedly now that they are typically not subjected to enforced conversion procedures, and may even be “out” with impunity; but being “out,” as Yoshino rightly shows, is a spectrum, and the law professor whose colleagues tolerate his known gayness but who urge him not to engage in gay politics, or not to teach sexual- orientation law, or not to “flaunt” his orientation through public displays of affection, encounters a demand that is constricting. So, Yoshino concludes, we should not pat ourselves on the back because we tolerate people who are different, when we are imposing demands that deform and humiliate. Instead we must think about how we can produce a society where people are free to be themselves. 

THIS IS A HELPFUL AND IMPORTANT idea, and Yoshino argues well that we need to make it central to our social debates. But what is original about his book is not so much its central argument, which was adumbrated by Goffman, as the way in which it puts flesh on Goffman’s concept through an arresting personal narrative. Yoshino once wanted to be a poet, he tells us, and it was his struggle with his gay identity that turned him to law. But he is still a wonderful writer, and what makes his rather routine “coming-out story” interesting is its literary beauty, which may have a kind of Brokeback Mountain impact on the parts of “straight” society that encounter the book. Here is how Yoshino describes his first realization that he was in love with a man: 

One glittering afternoon, we walked along the Charles River. It was a Sunday- -the riverside drive was hedged with sawhorses, closed to cars. The cyclists sheared the air. Dazzled by the needles of light stitching the water, I turned to watch him watch them. I noticed his eyelashes were reflected in his eyes, like awnings in windowpanes. As I tried to make sense of that reflection, I found I could not look away. His irises were brown, clouding into orange, with brighter flecks around his pupils.... It hardly mattered that I knew he was straight. I experienced my desire for him, which was a pent-up desire for many men, as having an absolute absolved necessity. Just as the brain seems larger than the skull that contains it, so did my desire seem grossly to exceed the contours of my body. I thought if I could only make him experience the strength of what I felt, he could not demur.

Yoshino’s daring choice to alternate between narrative and analysis is vindicated by the skill with which he does both. What emerges from the long account of his depression, his search for love, his coming out to his parents (whose first thought is that now they can never go back to Japan), his turn to law and political activism, is a picture of a strong and decent man who has managed to protect his capacity for love and joy despite the social pressures that he so shrewdly exposes. Although he is an activist and feels solidarity with other gays and lesbians, he does not romanticize defiance or trash stable affection; indeed, one of the biggest costs he ascribes to the “covering” demand is a cost in the ability to express love in a way that is simply first- personal and not tinged with political shock. 

The first part of the book is devoted primarily to this autobiographical narrative, with brief glimpses of the analysis to come. Yoshino then presents a detailed analysis of gay covering and somewhat shorter analyses of race-related and gender-related covering. He briefly alludes to similar issues in the areas of religion and disability. Finally, after some consideration of potential legal remedies for the covering problem, he concludes that law will not really be of much avail in this area, that the real struggle must be fought informally, in families and in civil society. As a first step, we can at least promote a lot of public conversation about the demands we make on people.

IN ITS CONTENTION THAT COVERING is a central human problem in American society today, Yoshino’s book is convincing, and also moving. But there is more that needs to be said. I wish the book had somewhat more of a comparative and historical dimension, because it is clear that, whatever problems afflict the United States today, this country is much more accepting of public differences of many sorts than societies in most other times and places. One has only to think of the Victorian Britain assailed in Mill’s On Liberty to see that a good deal of progress has been made.

It would also have been very instructive to do a detailed comparison of the assimilation demands made of Jews in present-day Europe and in the United States. Yoshino is just wrong, I think, when he says that there is increasing pressure on Jews today to conform to the WASP paradigm. Indeed, you can chart the progress Jews have made against “covering” in many ways, not least by noticing the flowering of Hebrew, yarmulkes, and even prayer shawls in Reform Judaism, that once most middle-class and assimilationist of denominations. On a recent visit to Hebrew Union College, the cradle of Reform, I studied the photographs of graduating classes of rabbis from the 1860s until the present day. The biggest change—apart from the inclusion of women—was the gradual de- covering of rabbinical dress. At one time all wore black suits, all were clean- shaven and bare-headed. Today many have beards, all wear yarmulkes, and almost all (including the women, of course) wear a tallis. We really have moved beyond the melting pot. 

So how did America come to permit the gradual self-expression of Jews as Jews, and why is that expressive freedom still largely denied them in Europe? Most Americans recoil at France’s insensitivity to the marks of religious identity (yarmulkes are banned in school along with the more notorious Muslim head scarf), and at Italy’s insistence (until now) that hanging a crucifix in front of every public school classroom is just fine as an expression of “our culture.” My peeve of the week is that Finland just scheduled a major public discussion of the future of the Finnish democracy (including the entire parliament) on Yom Kippur—and despite the presence of Jews in the legislature. I (as an invited speaker) was the first to break this news to them. Either these Jews are very ignorant, or the demand for “covering” silenced them. 

THIS IS A GENERAL ISSUE, AND it goes way back to the founding. From the mid- seventeenth century on, one can find public sensitivity at least to religious difference: to Quakers who refused to take their hats off in court; to Jews who refused to testify on Saturday; even to refusals of military service, as George Washington reassures the pacifist Quakers that their “conscientious scruples” will be treated with “the utmost delicacy and tenderness.” Europe was not like this until a long time later—if, indeed, it has ever become like this, since we see rather little “delicacy and tenderness” in European debates about Islam these days. 

If, then, covering is the regime of the hour in America (or in some parts of America) with respect to same-sex relationships, it might be helpful to ask whether this is because we are in general a land where covering reigns, or because we are a land that has particular difficulty with sexual matters generally, and sexual orientation in particular. It is the latter, I think; and so the public conversation demanded by Yoshino needs to be not a conversation about the prejudice and conformism, the excessive and even coercive universalism, that allegedly frustrates the multicultural realities of American life, as a result of which we all agree to respect difference and authenticity; but rather a more specific and deeply uncomfortable conversation about sex, gender, and family.

Since Yoshino’s tone is romantic, and poetically discreet, his book never really talks about sex. But if sex between men is what the panic is all about, as I think on the whole it is, then romantic talk will not reach the problem. In this way, Yoshino’s narrative is quite unlike Brokeback Mountain, because it lets readers have an easy time of it: they can, if they want, imagine Yoshino as a disembodied spirit, and they are not forced to think about sex acts that many Americans find revolting. A significant part of the problem of gay life in America goes unaddressed, since anti-gay feeling is not just about difference, it is centrally about sex.

ANOTHER PROBLEM WITH Yoshino’s analysis is its concept of authenticity. Yoshino smartly refuses the easy idea that authenticity can be measured by the extent to which a minority group buys into a specifically minority stereotype. Though at times, early in the book, he appears to suggest that a woman who fixes her own car, or an Asian who listens to NPR (his example), or a gay man who does not care about political activism, is by definition inauthentic, he ultimately rejects this notion—and a good thing, too, since it is just as tyrannical as the regime of covering that it opposes. Just as an adolescent needs to learn that individuality does not mean doing the opposite of what one’s parents recommend—such oppositional behavior is no less determined by parental norms than is perfect conformity—so, too, minorities are cruel and deforming if they insist that only stereotypical behavior (of a sort that is quite likely to be a back-formation of some type from dominant norms) defines one as a “real” black and not an “oreo,” a “real” gay and not a “normal.” 

While Yoshino refuses (somewhat inconstantly) the bankrupt route of defining authenticity as rebellion, he does not provide a positive analysis. Philosophical accounts of autonomy (which require reflection, critical scrutiny of traditions, and so on) have a lot to contribute to the further analysis that never emerges. Mill, Kant, and modern writers such as Gerald Dworkin and Marilyn Friedman would all have been quite helpful to Yoshino in crafting a normative account of autonomy that could separate mindless conformity from a genuinely thoughtful choice of a mainstream way of life. Yoshino appears not to be interested in philosophy. Instead, he turns to the psychoanalyst Winnicott and his conceptions of the “True Self” and the “False Self.”

Now, I love Winnicott as much as Yoshino does (and have said why in these pages), but the True Self is a concept that Winnicott defined in several ways, some of them verging on an excessive romanticism. At times Winnicott suggests, helpfully and attractively, that the True Self is something like the autonomous self of the philosophers: it is the organized set of whatever commitments and values stand the test of reflection, so that we are willing to identify our life and our selfhood with them. That is the sort of concept Yoshino needs in order to ask which aspects of a minority identity are truly central, part of our autonomy, and which parts are more peripheral. This aspect of Winnicott fits well with Yoshino’s call for more reflection and debate—but often Winnicott (who was so deeply bruised by the puritanical conformism of his Methodist family that he was sexually impotent until he was past forty) speaks in more romantic terms of a hidden inner core that is incommunicable in language, suggesting that any contact at all with other people and the world deforms the True Self. (Emily Bronte was one of his favorites, and he particularly identified with Cathy in Wuthering Heights.) So it really is not helpful for Yoshino to refer vaguely to Winnicott: he needs to tell us which Winnicott he means, and to give some analytical precision to what Winnicott left vague and amorphous.

We see clearly enough what Yoshino is against, but until we see more clearly what he is for, we have no confidence that we have really understood him. He writes as if there is only one thing that a person really is, and all other social presentations of self are somehow “false” (though, with Winnicott, he does admit that the False Self can be useful). But people are usually a tumultuous mixture of elements, and it may be very unclear what any person “really” is; it is very unlikely that there is one unitary thing that each of us “is.“ A “covered” self might be the real and sincere way one presents oneself as a worker (say, not alluding to one’s own personal problems at work), or even as a friend or lover (say, trying to suppress one’s selfishness, or anger, or anxiety). Sometimes covering is just discretion, and protective of others. Discretion, like self-expression, is often a social good. There may be wild or silly or childlike elements of the self that emerge in intimate contexts, and these would be utterly out of place elsewhere. They would lose their delight if the workplace suddenly opened itself to admit them. This does not make these other contexts repressive, or one’s behavior in them somehow squeezed and defective. 

Often, too, external demands help people develop richer and more variegated selves. Educators who believed that the best school was one that imposed no external demands, letting children express themselves as they pleased at all times, soon learned that the children grew up not free but unfree, lacking both crucial knowledge and trained expressive capacities. After all, what art worth anything is created spontaneously by children? As a once-aspiring poet, Yoshino should know that external discipline is usually a necessary condition of all expression worthy of the name. And what is true of art is also true of virtue: one does not learn to be sensitive to the needs of others without taxing discipline, which imposes covering demands that often last the entirety of a life. All this needs sorting out. Yoshino clearly does not accept the extreme romantic view according to which all social norms are bad; but he says much too little about what he is for. There is a large hole at the heart of the book, to be filled in by whatever the reader can come up with that works better than slavish adherence to conformity.

MORE TROUBLING, SINCE THIS is a book by a law professor, is that Yoshino seems to have relatively little interest in the law. He does not even state legal issues accurately. His treatment of the legal issues involved in the major gay-rights cases is cursory but not truly bad; the same cannot be said of his casual treatment of the legal issues surrounding disability and, above all, religion. Yoshino says that in these two areas America has adopted a “principle of accommodation,” and he goes on to give some examples of how that principle works in practice (accommodations for persons with disabilities in the workplace, the Supreme Court’s decision that the Amish need not send their children to the last two years of required public school). Analytically, however, he does not even get started, since he never makes a distinction that is absolutely basic: between accommodations resulting from legislation and accommodations resulting from judicial interpretation of constitutional requirements. 

The Americans With Disabilities Act is legislation. The Supreme Court has a role in interpreting it, but it did not create it. Very different are some of the accommodations granted to religious minorities, such as exemptions from the draft, or the educational dispensation given to Amish children: these are judicially mandated accommodations that give people the right to be exempt from laws passed by a majority and applicable to all citizens. This distinction is crucial because virtually nobody thinks that legislative accommodations are a bad thing (though there may be some limits to how some of them can be made consistent with the establishment clause). A long judicial tradition, by contrast, thinks that judicially created accommodations are a very bad thing, an example of courts riding roughshod over democracy.

Yoshino not only fails to state this conflict, he rides roughshod over it. Quoting from Justice Sandra Day O’Connor to exemplify the “accommodation principle,” he neglects to inform the reader that she is describing the regime of accommodation that once existed but that the majority opinion in Employment Division v. Smith (1990) has just uprooted, to her great displeasure. Nor can we capture the ongoing judicial debate well in Yoshino’s terms, as a debate between people who like covering and people who do not like it. Justice Antonin Scalia is happy to go along with many legislative accommodations (even when they concern religious drug use, which was the issue in Smith); he just thinks that judges should not usually be in the business of imposing them. 

And even under the less accommodation-friendly regime that Scalia initiated in Smith, there is room for minorities to complain. Santerea worshippers in Hialeah got the Court to toss out a regulation forbidding animal sacrifice that clearly targeted them in particular, and this with Scalia’s approval, since he found clear evidence of discriminatory intent. More daringly, Justice Samuel Alito, while an appellate judge, ruled that the Newark police might not deny Muslim police officers the right to wear beards for religious reasons, given that they had allowed a secular exemption for people with a rare skin condition. This case went further than Scalia’s “neutrality” theory suggested, since there was no finding of discriminatory intent. It was, and is, an admirable decision, within the confines of the present legal regime. 

But Yoshino does not even give us the difference between the pre-Smith and the post-Smith regimes, or state the current judicial understanding at both state and federal levels. (Many states have adopted the pre-Smith accommodation- friendly principle as a feature of state law, and the Religious Land Use and Institutionalized Persons Act has protected important areas of accommodation at the federal level, including, recently, the right of minority-religion prisoners to opportunities for worship that many states had denied them.) It was a mistake to treat this fascinating area of law so casually, because it gives us rich insights as to how a regime that is concerned not just with conversion and passing, but also with expressive conduct, can be implemented through law.

IF YOSHINO HAD GONE INTO THE religion cases, he would have had to face an issue that he nowhere faces: what reasons for exemptions from laws of general applicability should a legal regime recognize? Or, to use Yoshino’s language, what types of covering should it forbid? Ours has focused on the specialness of religion—after all, that is what the free exercise clause protects, not the “free exercise of culture,” or the “free exercise of identity,” or anything else. “Religion” was clearly understood at the time of the founding as a broad concept: early drafts often use the term “rights of conscience,” and my guess is that the final wording came in only because of the decision to focus on “exercise” as well as belief, and because the phrase “free exercise of conscience” was an anomaly, just not a phrase that anyone had used in these debates. 

Whatever the Framers meant to protect (and we should remember that around 80 percent of Americans in the early years of the republic were not members of any organized church, though most were Christians of some kind), the tradition of interpretation has understood the notion of “religion” relatively capaciously— at the very least to include non-theistic religions such as Buddhism, Confucianism, and Taoism. During the Vietnam War, the Court went still further, giving exemptions from the draft to two young men whose beliefs were sui generis. One, Seeger, called his view “religious” and provided a metaphysical account to go with it. The other, Welsh, crossed out “religious” on his conscientious objector form, and plainly had what we might call a comprehensive ethical doctrine entailing non-killing. The Court stretched “religion” to the limit here, obviously trying to show respect for conscience even when conscience did not take an organized or traditional shape. 

Yet the Court has never dropped the general idea that religious reasons are special. A worker who refused to work on Saturday because the day care centers are closed, citing reasons of family obligation, or one who pointed out that her ethnic minority held its regular group meetings only on Saturday, would get the brush-off. A Jew or a Seventh-Day Adventist would not, because our tradition believes that reasons of conscience are somehow special. What exactly reasons of conscience are, and why they are special, remains deeply obscure, and some legal thinkers find the special place for religion simply unconscionable. (They tend to defend Scalia’s less protective Smith standard, for quite different reasons from the institutional reasons Scalia used.)

I would like to know what Yoshino thinks about all this. When an employee wants to wear cornrows at work, is this an issue of conscience? (Of course race is constitutionally special for different reasons, so what we need here is an example of ethno-cultural dress that is not racially coded.) What if I have large and conspicuous tattoos, which express my personal conception of an authentic life, and my employer tells me that I have to cover them in the workplace? Is there any reason why the law should listen to my complaint, and, if so, what account of the protected areas of expression could coherently be given?

YOSHINO TELLS US—AND THIS is all that he tells us about the law of accommodation—that certain reasons for making “covering” demands should be disallowed: prejudice, bias, animus. But most of the covering demands in today’s world are motivated not by those things, but by a love of uniformity, or administrative simplicity, or even a love of country (as in the compulsory flag-salute cases). And even these otherwise admirable reasons have an uphill battle when issues of conscience are at stake, or at least they did before Smith, and do now, in a narrower set of cases. What O’Connor valued about the pre-Smith regime (rightly, in my view) was that it ensured that the state had to show a “compelling interest” if it was going to override a reason of conscience and impose a “substantial burden” on the free exercise of religion of any person. Just any old hand-waving about administrative efficiency would not do. 

Should this asymmetry between reasons of conscience and other reasons exist? Can it be defended? If it cannot be defended philosophically, should we still wish to retain it in the light of history, which shows us how conscience has been trampled by the state again and again? And if we do not retain the idea of the specialness of conscience, don’t we just have to get rid of the idea of accommodation as a workable legal idea? There is a lot about law in this topic, then, and Yoshino seems oddly uninterested in these decisive dimensions of his complaint. In this sense, the book’s melodramatic subtitle is deceptive. Although Yoshino does speak of a new attitude to “civil rights” that thinks of universal human rights norms as being gradually applied in informal social interactions, the term “civil rights” usually refers to enforceable legal rights, which is what Yoshino, in the end, does not think most rights against covering demands are. 

Perhaps Yoshino’s lack of interest in real civil rights is not so surprising, given his central focus on gay issues. People usually are not disgusted by the religions of others. (There are exceptions: the Mormons come to mind, and perhaps the Jehovah’s Witnesses.) So those inequalities are amenable to legal redress, and even in colonial America people could understand that liberty of conscience is something precious to all, as much to those one considers damned as to those one considers saved. When people are disgusted by the sex acts of others, by contrast, law is a pretty blunt instrument, as Yoshino in the end concludes. People who are disgusted really do not believe that liberty of sexual self-expression is valuable for all. Law can tell people that they cannot turn their disgust reactions into legal penalties, and that, at last, is something. Sodomy laws are no more, and in many areas of life gays and lesbians have also won protections against workplace discrimination. In some places they are winning at least the civil rights associated with marriage, if not marriage itself. To counter the persistent demand for covering, however, it seems likely that time and social change will be necessary, because law has done almost as much as it can do on its own.

Yoshino calls for public debate and reasoned conversation. Those are good things to call for. But the issue demands more. It demands also an effort of culture: works of art, high art and popular art, that touch the public imagination and inspire it to feel empathy with relationships that are now viewed with loathing. To that humane public poetry, Yoshino’s lyrical and thought-provoking book makes a significant contribution.

Martha C. Nussbaum is a professor at the University of Chicago Law School and the author of Frontiers of Justice: Disability, Nationality, Species Membership (Belknap Press). This article appeared in the March 20 & 27, 2006 issue of the magazine.