'Equality, I Spoke that Word/As If a Wedding Vow': Mental Disability Law and How We Treat Marginalized Persons

Abstract

This article introduces a Symposium on Perspectives on Mental Disability Law that appears in the most recent issue of the New York Law School Law Review.

The articles deal with a variety of perspectives on mental disability law - the status of sex offenders, the role of advocacy organizations, assisted outpatient treatment, institutional rights - but each explores the tensions present when the question is raised as to whether institutionalized persons are being treated "as human beings" (Falter v. Veterans Administration, 502 F.Supp. 1178, 1185 (D.N.J. 1980) (Ackerman, J.). All share a constant leitmotif: the ways that we as a society, simply put, do not take seriously the impact of institutionalization on persons with mental disabilities, and the ways that we continue to marginalize and dehumanize such individuals, sometimes under the guide of public protection, sometimes under the guise of benevolence.

We come to these conclusions when looking at this cohort of articles: 1. Our "ordinary common sense" about persons who are institutionalized is usually wrong. 2. Sanism and pretextuality continue to dominate our social policies. 3. Issues of mental disability cannot be meaningfully uncoupled from other social issues such as race or class discrimination 4. Therapeutic jurisprudence is a necessary palliative to remediate the factors just discussed..

The individuals written about in the essays here are all marginalized. Their marginalization has led to their being treated as somehow less worthy of legal protection than others. For nearly three decades, we have continued to ignore Judge Ackerman's cautionary advice - to treat them "like human beings."

Keywords: sanism, pretextuality, mental disability law, sex offenders, afvocacy, counsel, outpatient treatment, institutional rights