Kenji Yoshino, Gay Marriage, and the Importance of Being ‘Equal Enough in Dignity’

“Let’s heap praise on those who led the movement, not condemn those who took longer to join it. It’s never too late to do the right thing.”

The recent Supreme Court hearings on the issue of gay marriage represent several years’ worth of truly historic developments in American civil rights. In his new book Speak Now: Marriage Equality On Trial, constitutional law professor Kenji Yoshino recreates the timeline of events leading up to 2012's groundbreaking verdict on the issue, guiding readers through every phase of the Hollingsworth v. Perry case which demolished Prop 8 and paved the way toward shifts in public opinion on everything from same-sex parenthood to gay conversion therapy.

Now himself a husband and father, Yoshino speaks with us about the aftershocks of this ruling, and what they mean on a personal level — even for those who do not wish to marry.

Tom Blunt: As well as a blow-by-blow of the Hollingsworth v. Perry case, this book represents a thrilling journey for you, both as a law scholar and a married man. How is your life different today than it was before the trial?

Kenji Yoshino: My life is unimaginably different. Between the time the case was filed and when it was decided in the Supreme Court, I married my husband and we welcomed a daughter and a son into the world. It’s truly bizarre to have social milestones track personal ones in this way. It’s like walking down a corridor and having padlocked doors fly open as you approach.

TB: This week the Supreme Court is hearing arguments on the issue. Can you summarize for those who are less familiar with H v. P. what the significance of this upcoming event is, and how much impact that landmark trial is likely to have on the SCOTUS judgment?

KY: We now have 37 states and D.C. that have legalized marriage, but no ruling making the ability of same-sex couples the law of the land. This upcoming case could — and I think will — usher in that reality. The Perry trial is not likely to have a direct effect on that ruling, as it was a different case whose record will not travel up to the Court. But I think it may well have an indirect effect, given that so much has been done to publicize it already — ranging from Dustin Lance Black’s play “8,” to the Cotner/White documentary, to books, including mine.

TB: People often cite popular culture events as signs of public “readiness” to face certain social issues, but the arguments by the proponents of Prop 8 included misreadings of everything from Brave New World to “Brokeback Mountain.” Does representation in pop culture really have the kind of reach and influence among opponents that we like to think it does?

KY: As you say, gay parenting was compared in early papers filed in the Perry case to the “persuasively dystopian vision” of Brave New World. The pages cited described a world in which babies are raised communally in Hatcheries and in which some of those babies are electrocuted to prepare them for life as slaves. I was flabbergasted when I read it. But that claim vanished once Judge Walker called for a trial. I think the lawyers swiftly realized how embarrassing it would be to introduce that kind of inflammatory statement in open court. To say that pop culture doesn’t reach everyone sets too high a bar; nothing does that. I would confidently wager that the median voter today is more likely to associate a gay parent with “Modern Family” than with Brave New World.

TB: There’s a double standard in the public perception of civil rights struggles: larger issues like Federal recognition of gay relationships seem like too much to ask for, yet smaller ones are considered unworthy of anyone’s attention. You describe the latter phenomena in terms of “microaggression,” in which small, daily instances of inequality end up having a significant cumulative effect on a person or population. Do significant events like H v. P or the SCOTUS hearings trickle down and resolve some of these smaller issues, even for those who do not intend to marry?

“Even if you choose not to avail yourself of the right, it’s important to know that you are equal enough in dignity to have that choice.”

KY: Yes, I do think these big decisions have positive ripple effects, even for those who do not intend to marry. As a historian testified at trial, marriage is the “happy ending to all our tales.” It’s a way of imagining yourself forward in life. Even if you choose not to avail yourself of the right, it’s important to know that you are equal enough in dignity to have that choice. Remember as well that these cases had to settle other issues along the way, such as the fact that most people (gay or straight) experience their sexual orientation as immutable, which I believe has helped to discredit the so-called “reparative therapy” movement. But of course, the struggle will continue long after gays achieve full equality in the eyes of the law. As we’ve seen in the race and gender contexts, microaggressions still occur in infinite and infinitesimal ways. So we can’t declare victory too soon.

TB: As you point out in the book, the large gay organizations guiding the national conversation about gay rights don’t always agree on the best courses of action. How has that playing field changed since the surprising events of H v. P, and do you believe there is more consensus now that gay marriage victories have rippled across the country?

KY: I would put it a bit differently. In Perry, the large gay organizations spoke almost with one voice about how it was too soon for Boies and Olson to file a challenge to a state ban in federal court. Fortunately, Boies and Olson’s gamble paid off. I think after that significant rift, both sides behaved extremely well.

TB: Many political figures have spoken up in support of a Federal gay marriage ruling, including those who’ve changed their position in order to do so, such as the Clintons. Is there room in the celebration bandwagon for politicians who only jump on after a critical mass of support has been reached?

KY: Absolutely. If we need to make distinctions, let’s heap praise on those who led the movement, not condemn those who took longer to join it. It’s never too late to do the right thing.

TB: Marriage remains a contentious issue in the gay community among those who fear assimilation into traditionally straight cultural norms will impair the unique, diverse culture we've created for ourselves in the margins. As a married man who did not grow up with the expectation of being able to live that life, how do you respond to concerns like these?

KY: I understand that we all find ourselves along a spectrum with regard to assimilation. But we’ll never know where we are on that spectrum until we’re given enough freedom to find our place on it. I say candidly in my book that I ended up being more conventional than I thought I would be; when conventions are closed to you, it’s hard not to have a “sour grapes” attitude about them. But the point for me was to be authentic, not to assimilate for the sake of assimilating. I hope I’ll always fight for the rights of other gay people to find their authenticity. For starters, the freedom to marry should also encompass the freedom not to marry, just as the freedom of speech encompasses the freedom not to speak.

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law. A graduate of Yale Law School, where he taught from 1998 to 2008, he is most recently the author of Speak Now. Yoshino’s writing has appeared in the Los Angeles Times, the New York Times, and the Washington Post. He lives in New York with his husband and two children.

This article originally appeared on Biographile.

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