Looking Over the Heads of Midgets

Looking Over the Heads of Midgets

Looking Over the Heads of Midgets

Slate's blog on legal issues.
March 20 2008 9:25 AM

Looking Over the Heads of Midgets

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Though Richard Ford and I sometimes have exciting fights, today I give him props twice in the space of an hour.   I agree that Obama’s speech was stunning.   As in other contexts where I’ve heard him, he refused to be a demagogue, staving off applause from the audience so he could get his ideas across.   And what an idea it was.

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What I took home from the speech was that in a pluralistic society, all individuals have an obligation to reflect on what part of their suffering arises from the human condition generally, and what part is specific to a particular demographic characteristic they hold.   Speaking for myself, I’m struck as I get older at how many of the things I thought were "gay issues" are much more universal than I thought—the difficulty of relationships, the fear of dying young, and so on.   Of course, that doesn’t mean gays do not face real oppression in this country, or that the challenges faced by different groups don't admit of degrees.   But to the extent that I don’t distinguish between the human condition and the gay condition, I hurt my ability to ameliorate the latter.   This is because potential straight allies will rightly resent that I cast them as obstacles to my human flourishing rather than as individuals who have a stake in that flourishing themselves.

 

What’s legal about this?   Well, over the past few decades, the Court has moved away from traditional group-based equality jurisprudence.   I’m thinking here of Cleburne v. Cleburne Living Center (1985) (intimating there will be no more heightened scrutiny groups) or Washington v. Davis (1976) (foreclosing disparate impact claims under the equal protection guarantees) or  City of Boerne v. Flores (1997) (restricting Congress’s power to pass civil-rights legislation).   At the same time, the Court has looked more favorably on a universal rights approach to civil rights.   I’m thinking here of Lawrence v. Texas (2003) (protecting general right to sexual intimacy) or Tennessee v. Lane  (2004) (protecting general right to access the courts).   The Court's move, though less easy to pinpoint, has a lot in common with Obama’s insight that we need to transcend groups when the interest in question is genuinely common.   Heather Gerken and I are going to have a debate about this in the next week or so that will flesh out this jurisprudential shift, for those who are interested.

 

In the meantime, I’ll be basking in the afterglow of that amazing speech.   As a colleague of mine said, Obama’s address made his political colleagues look like "normative midgets."   (I except Hillary Clinton from that characterization, though I'm not sure my colleague does.)  I like that characterization because the insight I'm celebrating feels more like normal science than rocket science.  But as Ford says, it's not something we hear from our politicians.  My colleague's phrase  reminded me of a rather ungracious honorary degree recipient who in his acceptance speech paraphrased Newton’s line about having seen further than his peers because he had stood on the shoulders of giants.   "If I’ve seen a little further than my peers," the honoree said, "It’s because I’ve looked over the heads of midgets."  In his commonsensical and fair-minded understanding of race, Obama stands tall.

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law and director of the Center for Diversity, Inclusion, and Belonging at NYU School of Law.