On April 2 Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, testified before the US House Committee on the Judiciary in support of the Equality Act, proposed legislation that would prohibit discrimination on the basis of sex, gender identity, and sexual orientation. The bill was introduced in March by US Representative David Cicilline (D-Rhode Island).
In his testimony, Yoshino said that the Equality Act would codify existing legal precedents while providing needed protections against the discrimination that LGBTQ people still face.
“A majority of federal circuit courts nationwide have already interpreted laws prohibiting sexual discrimination to Include discrimination based on gender identity and sexual orientation,” he said. “By codifying this sound set of precedents, Congress would ensure that applicability of federal law does not depend on where one resides.”
Yoshino pushed back against arguments that the proposed law would infringe First Amendment protections for religious freedom. “This claim…scants the safeguards instilled in the Free Exercise Clause of the United States Constitution,” he said.
He pointed to the Supreme Court’s 2018 Masterpiece Cakeshop decision, a victory for a baker who had refused to bake a wedding cake for a gay couple on religious grounds. The Court ruled that a state civil rights commission had failed to act with the religious neutrality required by the US Constitution when it ruled that the baker could not treat same-sex and opposite-sex couples differently.
“Any misapplication [of the Equality Act] predicated on religious animus would swiftly falter,” Yoshino said.
Yoshino concluded his prepared remarks by citing his own experiences as an Asian American and a gay man.
He recounted that when first offered his chair at NYU Law, he refused the title “Chief Justice Earl Warren Professor of Constitutional Law”—knowing that Warren, as California’s attorney general, had helped intern Japanese Americans during World War II. But then-dean Richard Revesz persuaded him otherwise, Yoshino said, by pointing out how Warren’s views had changed over time: Not only did Warren express regret for his role in the internments, but he authored many of the nation’s most pivotal civil rights decisions.
“I now wear this title with pride,” Yoshino said, “wondering in how many countries a racial minority could move so quickly from being outside the protection of the constitution, to holding a place of honor as a scholar and teacher of that document.”
Likewise, Yoshino noted, relatively recent judicial and legislative decisions have allowed him and his husband to marry and raise two children. Even so, he added, he and his family can still face exclusion.
“In the last half-century I have walked two versions of the American dream,” Yoshino said. “That journey has led me to believe that the experience of discrimination on the basis of race on the one hand and discrimination on the basis of sexual orientation or gender identity, on the other, are not entirely different. And it has led me to believe the dignity the law can bestow in welcoming us into the light of the public sphere is entirely the same.”
Posted April 8, 2019