What is your initial reaction to the notion that we all fall into groups of people who are “dominant” and “dominated?”  Some are content and accept that having privileges, or a lack thereof, is merely a way of life.  However, should we consciously choose to live in a society where the roots of domination have been strategically placed and disseminated to suppress people of color, forcing them into lower-income brackets, or that the same roots perpetuate patriarchy and prevent both women and men from attaining equal footing with one another?  Mari Matsuda’s, Where is Your Body: And Other Essays on Race, Gender, and the Law, contains a collection of speeches given at various conferences, fund-raisers, and other local events, highlighting the connection between race, gender, and poverty and the nuances of which social justice lawyers must be aware of in order to do effective work.  Matsuda writes that “changing [the pattern of dominance] will require affirmative, non-neutral measures designed to make the least the most and to bring peace, at least, to this land (p. 10).”  As the first tenured Asian American female law professor, Matsuda challenges her listeners to always consider the context and multiple layers of oppression that not only we ourselves face, but all groups, including those perpetuating dominance, because we are all contributors to each other’s subordination.  A review of Matsuda’s book offers several concepts of social justice, which will allow us to unearth forms of dominance, and if we better understand patterns of inequality, we can choose to withhold water from the tree of oppression altogether.

The definition of social justice varies depending on one’s personal experiences and awareness.  Important elements to incorporate into the meaning of social justice include race, societal integration, and participation in a democratic process as “affirmative, non-neutral measures.”  From there, a social justice lawyer is able to define her own personal identity, role, and values.  This essay utilizes personal experiences from the Asian immigrant and gay communities, including my own, in revealing where social justice has failed and to further elaborate on social justice through theories introduced by Matsuda.

Creating Change: Affirmative, Non-neutral Measures

Whatever the plans are to create societal change, the will of the people must agree with the means of carrying out said change.  Getting people to agree with your idea is a difficult task but not impossible.  Matsuda describes Anne Scales’ “rachet principle” as “legal tools that have a progressive effect, defying the habit of neutral principles to disappoint (p. 23).”  Examples of the rachet principle include such non-neutral measures like affirmative action, reparations, or the criminalization of racist propaganda, which is implemented through “formal rules, formal procedures, and formal concepts of rights (p. 23).”  The rachet principle is applicable when,

Progressive legal victories occur because of the surrounding social circumstances.  If those circumstances support material as well as ideological gains, well and good.  And, of course, as long as those circumstances are stable, the legal victory will be so as well.  But, if circumstances change, the “rule” could be eroded or, more interestingly, interpreted to support anti-progressive change.1

Therefore, if the present social environment is religiously conservative and against granting marriage rights to same-sex couples, a court ruling that barring gay couples from marrying is unconstitutional will bear no weight if the municipality votes to uphold marriage as between a man and a woman.  Matsuda wrote that “timing is an element of jurisprudential inquiry (p. 11).”  How much the oppressed hope to change at this moment requires working with and garnering support from the majority.

Delving further into non-neutral measures to achieve change, I remind myself that while the Constitution was not written specifically for me, I can make it my own, using my chosen consciousness as a gay person of color “to give substance to those tantalizing words “equality” and “liberty (p. 11).”  Let us all engage in bettering our world by contributing our individual consciousness at the “conversation” table.  Matsuda says that “we are here in the particular physical sense of our personal genealogies because we are the children of survivors, of people who judged correctly which fights to fight, when to lay low, and when to assert personhood (p. 26).”  But some of you may be more prideful, believing that no challenge should be ignored, because to do so would be a step backwards.  So, let us take survival a step further and assert our personhoods at every occasion, because there are opportunities that should be afforded to us merely because we are human.  By living, sans oppression, we would have achieved change.

Race and Integration: An Asian American Case

I can trace the how and why for my being in law school back to when my grandmother’s family lost their wealth prior to the Communist Revolution in China, thereby allowing them to survive a bloody revolution.  I am here today because my paternal great-grandfather entered the United States illegally as a “paper son” and sponsored my father.  My mother is in America because her family was able to escape a military regime in Burma.  While I do not discount the hard work my family has put into raising me, I also cannot close my eyes to how chance and “illegal” actions permit me to live as I do today.  But what happens to the thousands of immigrants (people of color) who cannot escape poverty and continue to abide by the laws of the United States?  A partial solution lies within the deconstruction of racism, which can be accomplished in two ways: (1) Racial integration and (2) accepting that we all have privileges and engage in subordination, but can choose not to if we choose to be conscious of our actions.

One solution to ending racism is the integration of students of color in public schools through affirmative action.  Affirmative action is believed to increase the likelihood that “students who are educated in an integrated environment” would “live in integrated environments as adults.”2 Yet, affirmative action has run up against much opposition, where students from privileged backgrounds often argue that affirmative action fails to accept students based on individual merit, and that the act of affirmative action is itself, racist.  However, as many of our prestigious public universities continue to admit one Black student for every ten White students (based solely on merits gained by privilege and wealth), the absence of affirmative action will never balance the disparities between ethnic groups.  Oppositionists pose that “if ethnic identity is the cause of ethnic strife, the solution is for everyone to stop claiming ethnic identity and be “just like me;” but to be “just like you” is an “obvious move away from recognizing the effects of systems of domination like racism or class exploitation (p. 18).”  Preventing actual integration through programs like affirmative action allow racism and violence to persist because the “educated elite” will continue to remain those who have always had access to education in the United States – Whites.

To further clarify why the notion of to be “just like me” fails to eradicate racism, Matsuda explains that:

Words and acts are inseparable where acts of discrimination could not happen without an ideological base.  Ideology creates violence, and violence creates ideology.  Racist words promote racist deeds, and racist deeds promote racist words.  Degrading images generate degraded status, and degraded status generates degrading images.  The relationship between the ideological and the material world is a dialectic (p. 166).

To believe that racism is a system of the past and disconnected from the present would be to ignore the ongoing racial violence in our public schools.  If society can accept that by ignoring racism, racism is only perpetuated, then the only other alternative would be to address the issue head on.

In the realm of academia, the dominant group has placed negative stereotypes upon the dominated – labels such as “subordinate, inferior, untrustworthy, lying, [and] cheating” – which could force the dominated group to retaliate in a racial fashion (p. 166).  In December 2009, a group of Black students attacked at least 26 Asian American students in the hallways of South Philadelphia High School.  District officials refuse to admit that the fighting was racially motivated despite victims stating that the attackers checked classrooms during instructional time to determine which classes had Asian students.3 What district officials fail to recognize is that, as Matsuda writes:

Racism is not just a few crazy, embittered holdouts engaging in intentional acts of violence or discrimination.  Racism is located in all of us, in the images we have absorbed, in the hate words we know, and in the stereotypes about race that are embedded in popular discourse in America.  This reality suggests collective responsibility to identify and counter racist ideology (p. 167).

For the Asian students and community, the fact remains that the attacks personally felt racial in nature.  To not recognize the personal feelings of the Asian victim, or even facilitate some mode of communication between the Black and Asian community is tantamount to allowing racial hatred and tensions to fester by both groups.  On the other hand, one could speculate that the South Philadelphia Black students may have attacked Asian students due to resentment towards White students, where Asians were seen to have sided with White students, but as a minority, were easier targets.

The year is 2010, and many ask as Matsuda did in 1995, “Why racial identity – why now? (p. 15)”  My answer is because people of color have never forgotten the color of their skin.  Daily interaction and the environment alone remind people of color everyday what it means to not be White.  People who are shocked that racial identity is still a modern issue should consider their privileges and assess how they contribute to the racial hierarchy.  Matsuda has a section titled “We will not be used; Are Asian Americans the Racial Bourgeoisie?”  The chapter is especially important because it is crucial to the belief that racial integration can end racism, but warns that Asian Americans must not fall victim to the racial institution that would use them as a mechanism to further oppress other races.

“Asian Americans are in danger of becoming the racial bourgeoisie,” also known as the racial middle-class (p. 149).  As Matsuda explains,

the role of the racial middle can reinforce white supremacy if it deludes itself into thinking it can be just like white if it tries hard enough.  Conversely, the middle can dismantle white supremacy if it refuses to be the middle, and refuses to abandon communities of black and brown people, choosing instead to forge alliances with them (p. 150).

Indeed, we should never allow ourselves to believe that we are better than another race, and always realize that the dominant race still considers us “subhuman,” like any other race.  As Asian Americans, to believe that we are better than another race would be to shroud ourselves in “self-delusion and false pride (p. 151).”  Arguably, the belief by some Asian Americans that they are better than Blacks could partially explain the South Philadelphia High School attacks; there is enough blame to share.  Matsuda states that “the fact remains, in every field where [Asian Americans] have attained a measure of success,” Asian Americans are still “underrepresented in the real power positions (p. 153).”  Therefore, successful Asian Americans should refrain from looking down on immigrants who are struggling to establish a life in America.  Merely because your family has succeeded in some general sense does not mean that another family was afforded the same privileges and opportunities that come along with race.

Like Matsuda, I too want to remember the times when Asian Americans stood side by side with African Americans, Latinos, and progressive whites to demand social justice.  But I have little faith of this actually happening in Hawai`i unless history is taught to and retained by students and we enforce at home and in school the need to overcome social injustices.  Hawai`i, being the youngest state in America and being so far removed from the mainland, is too disconnected from the American Black and Latino civil rights movement.  Even the most progressive Caucasians, African Americans, and Latinos have difficulties infiltrating Hawai`i’s Asian American inner circle.  Combine these circumstances with the fact that the indigenous people of Hawai`i have been so subjugated results in societal apathy that prevents the many minorities of this state from unifying and defying subordination.

Patriarchy and Homophobia Preventing Participation in Democratic Society

Oppression takes on many forms, but the root lies in the foundation of patriarchy, a social system that assigns cultural characteristics to the male and female sexes and uses that characterization, along with other instruments of power (including state power), to perpetuate the subordination of female to male, gays and lesbians to heterosexual males and females (p. 30).  By bringing our attention to other forms of oppression beyond racism, one can understand how other minorities are limited in participating in the American democratic process.  Mari Matsuda invites everyone to engage in coalition building and recognizes the intersections of the various forms of oppression.  However, our coalitions must include more than antiracism because some of us have overlapping identities and because the civil rights movement of the 1950s and 1960s has since progressed beyond Black identity and equality (p. 66).

Just as “race is a social construction, not a natural division of humankind,” homophobia is also socially developed.4 We can draw a trajectory from patriarchy to homophobia, and ultimately, the exclusion of not just gays and lesbians, but also people of color, the elderly and youth, disabled people, and other minority groups who identify as gay and lesbian from full equal status in American society.  The mistreatment of gays and lesbians is perpetuated by those who make others believe that the love between same-sex partners is “unnatural,” thereby grounding intolerance as acceptable because only heterosexuality can be innate.  Prejudicial assumptions translate to the prevention of gays and lesbians from attaining civil liberties, including property ownership.

Martha Mahoney told her Property students,

You do not feel as if you hold partial interest or particular sticks in a bundle of rights in the structure you inhabit, nor does it feel as if land-use regulation shaped your structure, street, and community.  This is home, where you roll out of bed, smell the coffee, reach for clothing, and inhabit the “reality” of the house.  The physicality of home and community … tends to make our lived experience appear natural.  The appearance that this is “the way things are” in turn tends to make prevailing patterns of race, ethnicity, power, and the distribution of privilege appear as features of the natural world.5

As a gay-American, I only recently discovered that gays and lesbians could be left out of property ownership; thus, the feeling of security and “home” that Mahoney describes is lost amongst many gays and lesbians.6 Matsuda asks us to consider whose voice is missing from a conversation?  What aspects of human life do we not have laws for (p. 31)?  How was land lost, and from whom and to whom?  How did the law facilitate [or fail to prevent] this process (p. 32)?

To answer these questions, I bring forward a real example of a Californian gay couple who had been together for 20 years.  In 2010, Harold Scull was injured in a slip-and-fall accident at home.7 Immediately after being hospitalized, Harold’s partner, Clay Greene, was never allowed to see him again as Harold died three months after the injury.8 Without authority, Sonoma County took control of the house Harold and Clay shared for over two decades and auctioned off all their possessions.9 Scull and Greene were separated “despite having documents naming each other as agents for each others’ medical and financial decisions.”10 From this case, we find that the voices of gays and lesbians are still prevented from joining the conversations that shape our existence.  If society continues to treat gays and lesbians as second-class citizens, or hope that we merely cease to exist, laws will not be made to protect us.  Consequently, a gay couple could lose their home and land through a process backed by the law.  While gays and lesbians are not prevented from actually voting, the fact that the government continues to put our civil rights up to a popular vote will ensure that gays and lesbians do not advance in our society, limiting our participation in the democratic process.

Two emerging patterns of oppression to overcome barriers of full participation in a democratic society come from Matsuda: (1) All forms of oppression involved taking a trait, x, often with attached cultural meaning, and using x to make some group the other, reducing their entitlements and powers; and (2) We learn in coalition that all forms of subordination are interlocking and mutually reinforcing, even as they are different and incommensurable (p. 64).  Again, the trait can be something simple like one’s sexual orientation where being gay culturally translates to inferiority, casting out gays and deeming them outsiders.  Applying the second element, we can see that the subordination of gays is also linked to the mistreatment of straight men.  A straight man that is not athletic enough, or fails to demonstrate a high level of testosterone behavior is an easy target for harm and abuse.

To have equal participation in society is then to dismantle oppression, but it is impossible to do this without dismantling every other form of domination.  If we believe that the answer is, “No person is free until the last and the least of us is free,” then we are heading in the right direction (p. 65).  Matsuda writes that “after years of stoic silence, of backing down, of enduring the daily insult of name-calling, … and of second-class citizenship,” there is the opportunity for the dominated to reclaim their human dignity by helping the dominant culture move toward its more progressive ideals (p. 75).  Furthermore, the determination invested in non-violent protest will signal to those in power that if they choose to resist change, they will have to face those who are willing to risk everything (p. 77).  If gays, lesbians, and their allies continue to protest, their victories will translate to gains for all groups.

Matsuda says the notion that things have to get very bad before they get better is a dangerous one; “people need not be starving and bleeding before they rise up and demand decent treatment (p. 77).”  How do we balance these words with the fact that some believe welfare must end so that people experience immense poverty in order to be motivated to work harder?  The practice in many cities is changing where the government is requiring people to have documented proof of their homelessness before they can gain admittance into a homeless shelter. Unfortunately, the present system demands that civilians hit rock bottom and recover their energy before attempting to swim upward.  Nevertheless, let us remind ourselves, that we must not travel towards the point of no return to realize that we are lost.  If we just look up and realize that we are heading in the wrong direction, the effort to correct our path would be a lot easier.

Conclusion: “Personal Identity, Role, and Values: Becoming a Lawyer, Staying Yourself”11

The ideas of social justice laid out in this essay are aligned with the primary demands of the feminist cause – decent education, jobs, housing, and health care for all (p. 44).  Patriarchy remains a source for oppression whereby change will come after people have safe homes, access to health care, and are empowered by education and work opportunity.  As Matsuda writes, “we are all deprived of knowledge and insights that can come only from learning to talk to each other (p. 126).”  Those empowered must have a space to talk non-confrontationally about race, gender, and sexuality, so that students can transform into teachers (p. 125).

Racism and the construction of race are central to understanding American law and politics.  Critical race theory uncovers racist structures within the legal system and asks how and whether law is a means to attain justice.  Law can translate into justice only if access to justice is available to everyone.  As we become social justice lawyers, let us be proud that we are conscious of race and danger from the time of our earliest memories, and that this is what will allow us to think and feel differently from other lawyers (p. 48).  Let our personal values permeate to the broader community, which has both the “special obligation to disadvantaged communities and affirmative duties to reverse longstanding patterns of exploitation and maldistribution.  Only then can the entire community flourish (p. 53).”

__________

 

 

 

  1. Mark Tushnet, The Critique of Rights, 47 SMU L.Rev. 23, 32-33 (1993).
  2. John A. Powell, The Tensions Between Integration and School Reform, in Social Justice: Professionals, Communities, and Law 625, 626 (1995).
  3. Teresa Masterson, 26 Asian Students Attacked at Philly High School, Dec. 4, 2009, http://www.nbcphiladelphia.com/news/local-beat/26-Asian-Students-Attacked-at-Philly-High-School-78528982.html
  4. Martha R. Mahoney, Segregation, Whiteness, and Transformation, in Social Justice: Professionals, Communities, and Law 867, 868 (1995).
  5. Martha R. Mahoney, Segregation, Whiteness, and Transformation, in Social Justice: Professionals, Communities, and Law 867, 868 (1995).
  6. Ruth Schneider, Abuse Allegations Make Case of Elderly Gay Couple Murky, Apr. 23, 2010, http://www.365gay.com/news/abuse-allegations-make-case-of-elderly-gay-couple-murky/
  7. Ruth Schneider, Abuse Allegations Make Case of Elderly Gay Couple Murky, Apr. 23, 2010, http://www.365gay.com/news/abuse-allegations-make-case-of-elderly-gay-couple-murky/
  8. Ruth Schneider, Abuse Allegations Make Case of Elderly Gay Couple Murky, Apr. 23, 2010, http://www.365gay.com/news/abuse-allegations-make-case-of-elderly-gay-couple-murky/
  9. Bridgette P. LaVictoire, Justice for Greene and Scull as Sonoma County Settles Outside of Court, Jul. 24, 2010, http://lezgetreal.com/2010/07/justice-for-greene-and-scull-as-sonoma-county-settles-out-of-court/

10.  Bridgette P. LaVictoire, Justice for Greene and Scull as Sonoma County Settles Outside of Court, Jul. 24, 2010, http://lezgetreal.com/2010/07/justice-for-greene-and-scull-as-sonoma-county-settles-out-of-court/

11.  John O. Calmore, Martha R. Mahoney, Stephanie M. Wildman, Social Justice: Professionals, Communities, and Law 207 (2003).

 


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