NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW VOL. 1, ISSUE 1

Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)

Coming Out and Stepping Up: Queer Legal Theory and Connectivity

Francisco Valdes1

[Copyright, 1993: Francisco Valdes]

                            Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .3
I.   QUEER LEGAL THEORY. . . . . . . . . . . . . . . . . . . . .5
     A.   Sexual Minorityhood and Queer Consciousness. . . . . .6
          1.   Pre-Stonewall . . . . . . . . . . . . . . . . . .6
          2.   Post-Stonewall. . . . . . . . . . . . . . . . . .9
     B.   Naming and Situating the Missing Voice . . . . . . . 12
          1.   Responsiveness and Accountability . . . . . . . 14
          2.   Joining Hands With Feminism 
               and Critical Race Theory. . . . . . . . . . . . 15
               a.   Queers, Feminists & the Sex/Gender Self. . 15
               b.   Critical Race Theory, Multiplicity
                      Intersectionality. . . . . . . . . . . . 17
     C.   Social Constructionism & Queer Legal Theory. . . . . 21
     D.   Lesbians, Gay Androsexism & Queer Legal Theory . . . 23

II.  CONNECTIVITY & COALITION. . . . . . . . . . . . . . . . . 25
     A.   Connectivity Defined . . . . . . . . . . . . . . . . 26
     B.   Psycho-Social Isolation & Connectivity . . . . . . . 28
          1.   Connectivity & the Past . . . . . . . . . . . . 28
          2.   Connectivity & the Present. . . . . . . . . . . 33
          3.   Connectivity & the Future . . . . . . . . . . . 35
     C.   A Note on Coalition and Connectivity . . . . . . . . 39

III. PERSONAL EPILOGUE . . . . . . . . . . . . . . . . . . . . 40

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     A.   Left-handed, Bald-headed Golfers and the Law . . . . 40
     B.   The Consciousness Curve. . . . . . . . . . . . . . . 41
     C.   My Selves, My Kinds. . . . . . . . . . . . . . . . . 41

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Introduction

It takes about a quarter century for us humans to grow into maturity as individuals, but this span of time amounts to less than a speck in the collective story of humanity. Yet, as a group, sexual minorities2 in this country have attained a maturity during the past twenty five years that is truly remarkable. In fact, the twenty five years that have elapsed since the Stonewall Riots have seen the birth and growth of an entire people at a rate that delights some, frightens others, but astonishes all.

During this time, sexual minorities have journeyed from total invisibility, shame-filled isolation, and unchallenged subordination to an unapologetic sense of self-definition and group identity. This journey, though relatively brief in time, has given rise to momentous developments, including the establishment of "sexual minorityhood" and the coalescence of "Queer"3 consciousness. In short, during this time we have progressed from the spontaneous combustion that produced the 1969 Stonewall Riots in New York City to the nationwide orchestration of time, energy, and resources that culminated in last year's March on Washington.

This Journal, whose inauguration coincides with the 25th anniversary of the Stonewall Riots, marks yet another step in this progression because this Journal bears witness to a growing Lesbian, Gay and Bisexual presence and sensibility within legal culture, a sensibility of openness and pride that simply did not exist a few years ago. As elaborated below, this sensibility is more generally rooted in, and benefits from, the evolution of Queer social identity during this past quarter century because these broad cultural developments helped to create a general climate of relative receptivity for the emergence of sexual minority scholars within legal culture. In great measure, Queer legal consciousness is the outgrowth of social Queer consciousness.

However, these developments also pose a challenge to legal culture, and more specifically to the nascent sexual minority communities within legal culture. By setting the stage for the emergence of sexual minority scholars, these developments poise legal culture for the emergence of a long-denied voice in critical legal scholarship: Queer Legal Theory. The creation of Queer legal theory is the challenge that Queerness poses to legal culture.

This essay traces the evolution of social consciousness that makes this new voice possible and urgent, delineates a basic statement of mission for Queer critiques of law that is responsive to this newfound Queer identity, and urges the development of a common front with Feminist and Critical Race scholarship in light of our common oppressions. Part I opens this essay with a call for the advent and cultivation of "Queer

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legal theory" as a cross-disciplinary and self-conscious exploration of way in which legal doctrines, customs, and practices impact on sexual minorities as sexual minorities. Part II addresses an ideal relationship between Queer legal theory and Critical Race theory and Feminism, introducing the concept of "connectivity" against the backdrop of multiplicity and intersectionality developed by Critical Race and Feminist scholars. Part III is a personal epilogue that considers some objections to Queer legal theory or to connectivity, and relies explicitly on my individual history and subjective sense of self/ves and community/ies to illustrate and underscore the theoretical points raised previously.

I.

QUEER LEGAL THEORY The initiation of Queer legal theory, as envisioned here, is made possible and necessary by the formation of a Queer community and consciousness that literally did not exist before the Stonewall Riots. Queer legal theory is made possible by this newfound sensibility because this new community has attained "sexual minorityhood"-- Gays, Lesbians, Bisexuals, and the trans- gendered now form bona fide and functional minorities akin to women and racial or ethnic minorities. The initiation of Queer legal theory is made necessary as well by the sense of resolute opposition to continued subordination that in recent years has arisen among sexual minorities and that increasingly seems to define sexual minority consciousness. This section therefore traces the progression of sexual minorities toward sexual minorityhood and Queer consciousness.

A. Sexual Minorityhood & Queer Consciousness

The twenty fifth anniversary of the Stonewall Riots, being commemorated this year, fairly may be viewed as marking a milestone in the development and maturation of sexual minorities as such because those riots mark the "big bang" in the formation of a cultural context for sexual minorityhood, a bang that was big enough to set off continuing repercussions.4 However, the formation of culturally cohesive sexual minorities in this country during the past several decades comprises four relatively distinct eras. Two of these mark the years preceding Stonewall and the other two mark the years since. During this time, Lesbians and Gay men left behind the terror and atomization of the past and began to coalesce culturally. Combining the production and development of a new consciousness with the creation and expansion of community structures, this coalescing has given rise to sexual minorityhood: today, sexual minorities have achieved a recognizable sense of group consciousness, have carved out public spaces for the needs and activities of vibrant and flourishing communities, and have secured privates spaces within them for our families. These years thus span the time during which sexual minorities became sexual minorities.5

1. Pre-Stonewall

The pre-Stonewall history of sexual minorityhood in this country can be arranged into two basic eras. The first is the era of atomization, and covers the years before World War II, during which sexual minorities did not yet exist as such. The

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second is the homophile era of the post-war years, during which a sense of group consciousness and of physical community began to form along the major cities of the East and West coast. These decades changed the world, and in doing so they set the stage for the formation of today's sexual minorities.

Before World War II, Lesbians, Gays, and Bisexuals by and large were scattered across the towns and plains of the country, isolated from each other and viewed by themselves and others as individual "perverts" without any connection to any of bona fide community.6 The recent spate of (auto)biographical accounts from that era show how this social and intellectual vacuum kept most Lesbians, Gays, and Bisexuals atomized, hidden, and cowered.7 Thus, rather than comprising a group fortified against the antagonism of the sexual majority by a sense of itself, inchoate sexual minorities were viewed instead as discreet sex/gender aberrations-- clinical cases and reviled statistics.

However, World War II ushered in a new era because combat conditions changed both the consciousness of a budding generation as well as the broader socio-economic landscape.8 Joined together for wartime efforts, men and women who intuitively or secretly identified as "homosexual" found each other in the ranks, and during those years forged both a sense of self as well as tentative links with likeminded others, and these two gains survived the war.9 In the home front, the nation's call for women to come out of the home and to go work in the factories as replacements for the men sent to war also brought together the previously isolated homosexuals among them.10 In this way, the nation's military needs during World War II served as the primary catalyst for the congregation of homosexuals in relatively concentrated places and numbers.

Upon demobilization, these youths did not return to the strictures of the towns, plains, and homes that previously contained them. Instead, they hung on to their newfound freedoms. Many former service members thus lingered and settled in the great ports of disembarkation used by the military on each coast while many wartime factory workers similarly lingered and settled into job opportunities that provided economic freedom.11 Thus, New York,12 Los Angeles, and San Francisco13 became the hometowns of the nation's incipient sexual minorities.14

In the west, Los Angeles and San Francisco witnessed some of the earliest organized resistance to what we now call homophobia after World War II. This resistance led to the formation of the Mattachine Society and the Daughters of Bilitis in conjunction with similar stirrings on the other end of country in New York City.15 Using the "homophile" self-denomination, these post- War efforts were led initially by politically radical activists but eventually settled into a calculated assimilationism that marks these years as a relatively distinct era in the history of sexual minorityhood.16 These early years were critical because they introduced individuals to each other; building networks, these pioneers broke the silence of the past and became the progenitors of our future communities.

This incremental creation of a group identity on both coasts eventually coincided with the general tumult of the 1960s, which gave rise to a social fecundity that helped to ignite a more

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militant "Gay" consciousness.17 Perhaps most significantly, in 1969 events led up to the "Stonewall" riots when the patrons of the Stonewall Inn, a bar in Greenwich Village-- mainly Puerto Rican drag queens-- unexpectedly rebelled at the continuing harassment and extortion of homosexual bars and patrons.18 For several nights, fearsome rioting ensued. In a flash, the news of this unprecedented defiance electrified the likeminded across the country, and introduced a new wave of youthful radicalism that marks the next era in the modern history of sexual minorityhood.

2. Post-Stonewall

The post-Stonewall years also can be arranged into two basic eras that mark relatively distinct stages in the formation of sexual minorityhood. The first of these, during the 1970s, was the era of activism and hedonism, which began in the immediate wake of the Stonewall Riots. The second of these, the era of pandemic and resurgence, began with the onset of HIV and continues today with the ascendancy of a strident but sophisticated Queer consciousness forged directly from the alienation, radicalization, and mobilization that has spread through the survivors, their families of affinity, their neighbors, and their friends. These decades therefore lead up to today's Queer consciousness sexual minorityhood.19

The months and years immediately following the Stonewall Riots witnessed the rise of bacchanalia and revelry in the Gay bathhouses20 and Gay discotheques that sprung up in cities across the country,21 as well as the rise of the Gay Liberation Front, whose permissiveness of lifestyle and politics of confrontation set it apart from the assimilationist moderations of the homophile movement.22 During this time, the 1970s, the Gay male community predominated23 and, though some of these Gays cried, "Out of the closets and into the streets," many others saw no urgency in that cry.24 This era thus may be seen as one of acute flux between pleasure without politics and between the politics of pleasure.25

This third era in the modern history of sexual minorityhood shut down as the onset of AIDS began to terrorize and devastate formative Gay communities. But terror and devastation soon turned to bitterness and fury, and this profound change in the attitudinal zeitgeist made way for the fourth and current era. Beginning in the early 1980s, a new era-- the current one-- characterized by a new militancy was launched by a new generation of activists that included Lesbians with increasing prominence.26 Epitomized by ACT-UP and Queer Nation, this new era thus far has produced a potent mix of pride, politics and pleasure that has taken sexual minority consciousness beyond the limits of the Gay years. This new activism is acutely aware of "sexual orientation" as a highly politicized construct and is unapologetic in its indulgence of (homo)sexuality as pleasure politics, or as political defiance to sexual and cultural subordination.27 This palpable, exponential emergence of Queer consciousness perhaps is the most starting result of the post- Stonewall years in the United States, a result that has rippled across the nation and that now has its parallels throughout the world as well.28

To be sure, sexual minorityhood is recent, but nonetheless authentic and secured. Indeed, the 1990s generate daily examples

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that show how sexual minorities in fact function as a "minority" in every sense of the word: sexual minority communities include identifiable neighborhoods with community-identified businesses, community-oriented services and organizations, and community interests and concerns that are viewed and addressed as such.29 These communities also have produced literature,30 art,31 and entertainment.32 More significantly, these communities have produced political leadership and leaders like Harvey Milk, Gerry Studds, Roberta Achtenberg; these communities, in other words, have produced a culture, a tribal sensibility that is discernible even if not homogeneous.33 Thus, as a practical matter, a minority culture defined by minority sexual orientation(s) has come into existence and this sub-culture, delineated both by consciousness and geography, is active in, if not central to, civic and economic life in some of the nation's most prominent cities.34

These changes could not help but to affect legal culture because the law is a prime tool in the repression of sexual minority life.35 The gains of sexual minorities since the Stonewall Riots thus ensured that the repressive uses of law would be questioned and challenged both from without and within legal culture. Consequently, the law's historical role in the subordination of sexual minorities increasingly is being contested. The post-Stonewall advances thereby pose a basic challenge to legal culture: creation of a scholarship that is cognizant of and responsive to the new landscape.

B. Naming and Situating the Missing Voice

The social and political developments of the past quarter century recounted above thus situate us at the threshold not only of finding but also of naming this missing voice because naming always has been uncertain and problematic for sexual minorities. During the past century our most prominent sobriquets have included homosexual, queer, dyke, Gay, Lesbian, Queer. Each of these terms comes with its past, its lineage, its baggage. Thus, naming the emergent legal scholarship on sexual minorities unavoidably forces a choice that signals self-definition.

As the preceding listing suggests, Queer is the latest of terms for sexual minority identity. It represents the most recent culmination of self-made Lesbian, Gay, Bisexual, trans- gendered communities and identities. Thus, though all the terms speak to the past, only Queer also speaks as part of a new vocabulary that invokes a self-made vision of a better future. In this way, the history of sexual minorities effectively crystallizes the choice that we face over self-denomination: we either embrace or reject in legal culture the new, liberational significance of "Queer" in the cultural life and discourse of sexual minorities as a whole.

I, for one, opt to cast my lot in favor of the Queer self- denomination. Not only is it self-made and forward-looking, this term also increasingly connotes the advances secured by sexual minorities socially and culturally in recent years; even though it still can evoke the terrors of a not too distant past,36 Queer increasingly signifies self-empowerment. Queer signifies a sense of egalitarian inclusiveness that encompasses all sexual minorities-- Lesbian, Gay, Bisexual, and the transgendered-- and that therefore invites wide-ranging critiques of sex/gender

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issues. Queer legal theory thereby appropriately denotes a sense of mission and scope that comports with the character of the challenges that face sexual minorities. Thus, Queer signifies an activist sense of self that is useful and beneficial in the tasks that face sexual minority legal scholars.

As envisioned here, Queer legal theory faces three basic tasks. The first task is to create a body of legal scholarship that is responsive to Queer life and identity. The second task to make the law accountable for its actual impact on the lives and fortunes of sexual minorities. The final task is to join with Feminism and Critical Race theory in the quest for liberation from subordination under law.

1. Responsiveness and Accountability

The first two tasks-- responsiveness and accountability-- go hand in hand. Fortunately, the attainment of sexual minorityhood and the coherence of Queer consciousness in society at large has occasioned an explosion of research among the social sciences that can fuel Queer legal theory from the outset.37 The use of knowledge charted by the law's sister disciplines can help Queer legal theory make itself more responsive to its constituency by facilitating the law's tracking of pioneering insights. In this way, Queer legal theory can help to illuminate the law's ignorance or to check the law's malice, and thus help to make the law both more responsive and accountable to sexual minorities.

The continuing focus of Queer legal theory, as envisioned here, therefore must be to incorporate explicitly and determinedly the experiences of sexual minorities as sexual minorities into the law's fabric at every level and in every relevant context. Only in this way may Queer legal theory inform and reform a legal culture that is replete with neglect or mistreatment. However, Queer legal theory additionally must make itself responsive and accountable as well; the scholarship must begin and stay grounded to lived experience. If this scholarship is to speak for us with integrity, Queer legal theory must represent the diversities and realities of sexual minority lives in all that it does.

2. Joining Hands With Feminism and Critical Race Theory

Though they constitute two principal tasks, responsiveness and accountability are not, and cannot be, the entire work of Queer legal theorists. Thus, in addition to responsiveness and accountability, Queer legal theory should and must consciously situate itself among the liberationist schools of legal theory that have sought in recent years to pry the law from its narrow traditionalisms. Both Feminism and Critical Race theory provide natural role models and allies. Ideally, the advent of Queer legal theory thus should signal a gathering of critical insights and perspectives based on two sources of commonality: a common interest in social and legal equality and a historic and current situational kinship. The common interest in social and legal equality is addressed in the two sections that follow below and the situational kinship based on Psycho-Social Isolation is considered afterwards.

a. Queers, Feminists & the Sex/Gender Self

The additional task facing Queer legal theory, as -------------------------------END PAGE 7---------------------------------

envisioned here, is to join with Feminist (and Critical Race) theory in the quest for equality. Perhaps the joinder with Feminism seems more compelling at first blush because both women and sexual minorities may be thought to have a special interest in dismantling the hetero-patriarchal regulation of human sexualities. In this sense, the joinder of Queer and Feminist interests may be thought as being reflected in the Feminist battle cries, "Your body is a battleground" and "The personal is the political." Indeed, our bodies and personalities are the battleground on which the sex/gender politics over control of the self are waged. Indeed, viewed in a broader social-historical context, the Feminist and Queer claims for control of our sex/gender selves represents another increment in the development of the "self" in Western legal culture.38

Hence, it is no coincidence that contemporary Feminist and Queer agendas resemble each other: both seek an end to the ideological occupation of our jobs, homes and hearts-- our selves. Likewise, it is no coincidence that Feminist and Queer progress is opposed by common adversaries: traditionalist forces that oppose sex/gender equality and that argue for a "return" to "traditional values" (by which they mean a return to heightened societal control over bodies, personalities, desires, and aspirations) are the main adversaries both of Feminists and of Queers. In the courtrooms, legislatures, and streets of the land, women and sexual minorities spook the same forces because we pursue the same sex/gender goals; in both instances the pursuit of equality is clashing with the traditions of hetero- patriarchy.39

Feminist and Queer goals thus invite critical collaborations toward the accomplishment of sex/gender equality. However, collaboration depends on mutuality. And, therefore, Feminism must reciprocate. To do so, Feminism must overcome its history of neglect regarding sexual orientation issues within its critiques of sex and gender.40 In other words, like Queer legal theory, Feminist legal theory must learn to recognize and to address the commonalities of our sex/gender oppressions and of our social and legal interests in modern culture.41

This joining, moreover, extends beyond the direct scope of sex/gender oppressions that unify the interests of women and of sexual minorities under hetero-patriarchy. This joining properly extends to the remediation of inequality more generally because the three forms of oppression that confront us respectively-- heterosexism, androsexism, and racism-- are inter-linked.42 The joining urged here therefore extends to Critical Race theory as well.

b. Critical Race Theory, Multiplicity & Intersectionality

Though it focuses on issues especially relevant to race and ethnicity, Critical Race theory, like Feminism and Queer legal theory, is devoted to the eradication of subordination under the law. Thus, it bears emphasis that solidarity between and among liberationist critical legal theories need not, nor should be, limited to sex/gender issues; though humans inhabit categories built on these problematized traits, humans also inhabit categories built on class, race, color or ethnicity, as well as other problematized traits. These traits all count in

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the calculus of privilege and discrimination because society and its legal system fawn or bite on these bases.

The advent of a Queer/Feminist collaboration therefore should signal a new, sustained alertness to this "layering"-- the stacking of bigotries in layers that reflect the intersections of target problematized traits like race, religion, ethnicity, class, sex/gender, sexual orientation, and others. The path toward this sustained alertness already has been pioneered by the recent works of Feminist Critical Race legal scholars who have illuminated notions of multiplicity and intersectionality. Multiplicity recognizes that human identity "is multiplicitous, not unitary" and that, therefore, "differences are always relational rather than inherent."43 Intersectionality in turn recognizes this "multi-dimensionality" to show that subordination does not operate on a "single-axis framework" and to emphasize that critical legal theories therefore must recognize and confront the "complexities of compoundedness" in the fight against social and legal inequalities.44 These voices, bridging the gap between race and sex and between Feminism and Critical Race theory thus have pointed the way to a further joining that includes sexual orientation issues and Queer critiques in a common critical front.

Consider for a moment the Lesbian of color. Under a heterosexist, androsexist, racist socio-legal regime, her multiplicity adds up to a highly problematized identity based on sexual orientation, sex, and race. Because she is, all at once, a prime target for racial, androsexist, and heterosexist bigotries that rage throughout American society, she embodies the intersection of traits and bigotries that overlap the apparent domains of Queer legal theory, of Feminism, and of Critical Race theory. The Lesbian of color thus personifies the overlapping constituencies and interests of Queer legal theory, Feminism, and Critical Race theory. None of these critical legal theories could hope ever to represent her, or to address the interlocking isms that shape her (and our) subordination(s), if they limit themselves to a single-axis or even a dual-axis critical framework. Clearly, then, a Queer/Feminist collaboration must make the layered impacts of race, color, class, and other problematized traits organic to its critiques.

Beyond that, however, Critical Race theory likewise must join Queer/Feminist scholarship to illuminate the historic and contemporary intersectionality of race, sex, and sexual orientation in social and legal arenas. To do so, Critical Race theory, like Feminism, also must reciprocate by ending the neglect or omission of sexual orientation from its discussion of racial and ethnic legal issues. This type of effort already is underway beyond the law, as Gay and Lesbian people of color have begun to expose the racism (and androsexism) of sexual minorities as well as the homophobia of racial minorities. For instance, one Latina Lesbian recounted recently how, as a young activist in New ork City during 1979-80, she "was shocked into realizing that the lesbian and gay community is just about as sexist, racist and homophobic as the straight community."45 At the same time, Gay males of color also have begun to explore our internalization of this homophobia of color.46 As these two examples illustrate, people of color in sexual minority communities-- or should we be called sexual minorities in

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communities of color?-- are beginning to build a discourse and a consciousness that over time can help to calm the personal and group divisions engendered by the respective prejudices of our brothers and sisters.47

Though barely discernible, this type of effort is underway within legal culture as well. For instance, articles with a race-identified perspective slowly but surely are beginning to note sexual orientation issues.48 Perhaps reflecting this increasing awareness, the 1994 Critical Race Theory Workshop devoted one plenary session (of three) to the intersection of race and sexual orientation.49 Though the examples from legal culture are relatively few, their recent vintage and growing prominence indicates an expanding recognition of intersectionality and multiplicity that in time may yield a sense of commonality between women, sexual minorities, and racial minorities.

If so, these examples may one day stand as a beginning point for mutual collaborations that will deepen and broaden the continuum of experience and insight from which all of us may draw liberating legal principles. If so, these collaborations may allow us to put together the building blocks of a broad-based theory of subordination and liberation.50 At the very least, a mutual cultivation of common knowledge and experience can delineate the contours of our cultural consanguinity. Thus, Queer/Feminist/Critical Race legal critiques must adopt and fulfill an exacting standard of inclusiveness against which liberational legal scholarship always must measure itself.

Thus, while striving to air marginalized voices, Queer legal theory, like Feminism and Critical Race theory, must resist homogenizing the experience of all sexual minorities into an essentialized singleness. The insights afforded by "multiple consciousness" permit the acknowledgment that no gain is achieved by obscuring difference.51 Law operates on multiple levels, and touches us in varying ways depending on where we're standing in relationship to it at any given moment. So, while forging a common cause with Feminism and Critical Race theory to face common challenges and common legacies, Queer legal theory must also define and address difference and diversity.

C. Social Constructionism & Queer Legal Theory

The time is auspicious for the initiation of Queer Legal Theory for another reason. During the past decade or so, the law's sister disciplines have been developing a critical theory that today is a powerful tool available for importation into and application within legal culture. This critical theory, known as social constructionism, is a powerful critical tool, both outside of and within legal culture, because it's basic point advances a fundamental insight: that the human condition is a social construction, and not a "natural" or necessary condition.52

Generally, social constructionism challenges the notion of an "essential" or inherent reality, and thereby it questions the validity of the status quo as a set of conditions that can be justified as such. Instead, social constructionism focuses on the way in which conditions or circumstances thought to be "just so" are in fact arranged by socially dominant forces. By reminding us at all times that the status quo is a humanly constructed reality, social constructionism reminds us that the

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status quo cannot make claim to inherent value or legitimacy.

This reminder is critical to the emancipation of sexual minorities, women, and people of color because it rejects the premise for existing cultural hierarchies. Those hierarchies, as we saw above, are premised on notions of inherent inferiority that dominant forces have imputed to traditionally disfavored groups.53 Thus, social constructionism invites sexual minorities, women, and people of color critically to re-examine any deference accorded to the status quo based on its ostensible representation of a natural state of affairs, and to imagine alternatives that perhaps might have been thought beyond the pale. Queer legal theory therefore must embrace and deploy this knowledge to help mount its challenge of the hetero-patriarchal status quo.

D. Lesbians, Gay Androsexism & Queer Legal Theory

Finally, Queer legal theory must confront a danger that could undermine its integrity, a danger that already has been identified as a reason to eschew Queer legal theory in favor of more specific versions of this enterprise.54 This danger is that Gay male androsexism will marginalize Lesbian voices, experience, and interests in the same way that androsexism more generally has subordinated the female to the male. This danger thus anticipates that the inclusiveness and expansiveness of Queer legal theory will operate to overwhelm the participation and influence in this enterprise of at least one sub-set of persons within the broader category of sexual minorities.

Sex/gender history and experience shows that these dangers are real and that such wariness is well-founded. But these concerns should not foreclose a Lesbian and Gay male Queer collaboration because that approach would narrow unduly the base of experience from which Queer insights would be drawn and thus would preclude possibilities for joint empowerment that are too valuable to forego. Queer legal theory is a must precisely because it can help to bridge the reality and the perception of difference among and between various sexual minority sub-sets. The inclusiveness and expansiveness of Queer legal theory, as imagined here, goes beyond the specificity of critiques anchored to one or another sexual minority sub-set, a specificity that does not lend itself well to connective projects. Thus, though the inward or singular focus of such critiques may project a particular viewpoint with special force or insight, they are less likely than inclusive Queer critiques to help cultivate connectivity as a strategy toward sex/gender equality.

Moreover, the narrowness of focus in a Lesbian-specific (or, for that matter, a Gay male-specific) legal theory may engender a kind of incompleteness similar to the limitations of critiques that ignore multiplicity and intersectionality. In other words, while a focused viewpoint may voice with clarity a singular perspective it also may limit the peripheral vision of that viewpoint. Specific legal theories therefore are more likely to overlook sex/gender commonalities than would a self-consciously inclusive Queer critique. An inclusive Queer legal theory therefore is uniquely positioned to promote expansive critical insights into the various species of interlocking isms that keep women and sexual minorities down.

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At the same time, Queer legal theory cannot and should not be thought to deny room for, or to obviate the usefulness of, Lesbian-specific or other similarly focused critiques. Room and use exists for both because the two types of critiques can help to fuel each other and, in tandem, can help chip away at the heterosexist domination of legal culture and legal doctrine. The primary point urged here is that this type of specific critique should not deemed to deny or obviate Queer critiques because Queer inclusiveness and expansiveness can add dimensions that, by definition, are more likely to be missing from the more specific efforts; Lesbian legal theory can (co)exist with(in) Queer legal theory, but cannot substitute for it.

Thus, in the final analysis, the concern over Gay androsexism and the danger that it poses for Queer legal theory should serve to heighten our individual and collective vigilance against the potential for a wholesale or creeping influence of androsexism within Queer critiques. By definition the term Queer reflects and invokes this type of heightened awareness for sex/gender egalitarianism and against sex/gender imperialism. The key, then, is to live up to the standards of the term. Additionally, this type of heightened awareness is integral to the broader commitment of Queer legal theory to connectivity. The challenge, then, is to fulfill the ideals of this commitment.

Because it counters the tradition of male supremacy that has run through Western history, this heightened vigilance may not come easily, but it also is not impossible.

II.

CONNECTIVITY & COALITION The preceding sections attempt to explain why Queer legal theory, Feminism and Critical Race theory ought mutually to join hands in recognition of overlapping constituencies and interests.

However, this joinder is warranted by more than this overlapping. The situational kinship mentioned earlier, based on historical circumstances, also points sexual minorities, women, and racial minorities toward each other. This situational kinship results from inter-locking subordinations based on sexuality/sexual orientation, sex/gender, and race/ethnicity that consequently bestow on sexual minorities, women, and people of color a latent sense of cultural connectivity, or capacity for cultural connection, that we need to awaken, foster, and deploy toward the common aim of social and legal equality. More specifically, this kinship results from the uses of similar strategies to impose and sustain heterosexist, androsexist, and racist biases in law and society. Calling this strategy Psycho-Social Isolation, this section therefore urges that Queer legal theory should and must pursue and occasion an active sense connectivity and interconnection.

A. Connectivity Defined

I first encountered the term "connectivity" a few years ago while leafing through computer journals in order to make a decision about which computer I ought to purchase. The term, I learned at that time, signified the "capacity for connection" of a computer component to another component in order to expand or

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magnify the power of both. However, this concept also contemplates the interconnection of multiple components in a "network of networks" that is open, interactive, flexible, and adaptable to various applications.55 Thus, connectivity and interconnection signify the active linkage of individuals to form networks and the active linkage of such networks to form a network of networks.

Since then, I have come to realize that this technical term in fact has a much more important potential application to the broader cultural context in which we live today. In fact, since then I have come to realize that the term captures precisely a point that I consider fundamental to the empowerment of traditionally disfavored groups in American law and society: that people of color, women, and sexual minorities not only should, but must, come together as individuals, as groups, and as networks of groups to realize and activate our mutual connectivities based on our cultural commonalities. Perhaps the most basic level of cultural commonality is the construction of people of color, women, and sexual minorities as the Other.

People of color, women, and sexual minorities have a tremendous, if relatively latent, capacity for connection based on the past, the present, and the future that we share, or have shared, as Others within America. People of color, women, and sexual minorities thus share a common past of arbitrary exclusion and subordination. People of color, women, and sexual minorities also share a common present in our struggles against the legacy of the past, a legacy that still envelopes and suffocates us today. Finally, people of color, women, and sexual minorities share a common vision of a future in which our quests for empowerment and equality will have been realized. To elaborate substantively this concept of situational kinship or cultural connectivity, the sections below begin with the commonality of our past and its continuing repercussions today, and then touch on the significance of difference to the realization of connectivity in our present, and finally move to the commonality of our vision and march toward a future based on empowerment and equality.

B. Psycho-Social Isolation & Connectivity

Beginning with the past and its continuing repercussions, I would like to focus on a unified account of a common history and a common present shared by people of color, women, and sexual minorities. To anchor a unified account that brings to the surface our cultural connectivities, we must focus on the common denominator, or strategy, that has given shape and still drives our historical disempowerments and subordinations. I call this common denominator, or strategy, "Psycho-Social Isolation" because this strategy has been, and is, targeted at all of us both as individuals and as members of traditionally disfavored groups. In other words, Psycho-Social Isolation is calculated to disable us both internally, or psychologically, and externally, or socially, so that we never learn who we are, who we can be. Psycho-Social Isolation is targeted at us both within ourselves and outside of ourselves, it is intended to obscure us from our own selves, from others like us, and also from the social mainstream. And thus, Psycho-Social Isolation keeps us inchoate, both as individuals and as communities.56

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1. Connectivity & the Past For people of color, Psycho-Social Isolation has been and still is implemented through confinement to the ghetto. Historically, ghettos were defined by stark geographic boundaries, and were differentiated from society at large in very visible and concrete ways.57 Herded into these ghettos were the humans that dominant social forces defined as inferior by ynature and indelibly rendered so merely by coloring.58 Of course, this Psycho-Social Isolation was enforced by law for most of the nation's history. Monuments to this history include Dred Scott v. Sandford,59 Plessy v. Ferguson,60 and Korematsu v. United States.61 Indeed, some of the nation's greatest upheavals, including the Civil War, have stemmed from the Psycho- Social Isolation of people of color.

Today, even though the support of the law supposedly has been withdrawn, such ghettos continue to exist. However, the ghetto now extends beyond stark physical constructs and includes forms of confinement that, though shaded more subtly, are just as constricting. These new forms of quasi-covert racism have taken their places alongside the traditional ghetto and have yielded a "permanent underclass."62 Now, both overt and covert acts of ghettoization support the continuing Psycho-Social Isolation of people of color both as individuals and as a group.

Consider, for instance, tokenism which exaggerates small gains or concessions to create the illusion of real or substantial improvement. Tokenism in the social, political and economic systems of the country simply create small pockets-- or ghettos-- of people of color within certain sectors of social, political, and economic mainstreams.63 In this way, the ghettoization of people of color remains intact, even though physically we may have transcended historical limitations and even though ostensibly we have entered into the nation's social or economic mainstreams. Thus, in a metaphorical as well as a literal sense, tokenism is the new ghetto: the rise of the "permanent underclass" shows how tokenism works as the new ghetto by keeping people of color concentrated at "the bottom" of social, political, and economic life, and thus relatively controlled, disempowered, and impoverished. Consequently, tokenism is both an illusion and an excuse that serves the modern-day purposes of Psycho-Social Isolation: it creates an illusion of progress while keeping people of color isolated, and creates an excuse for the waning of efforts to combat the vestiges of the past.64

For women, Psycho-Social Isolation has been and continues to be implemented through confinement to the home. Historically, socially dominant forces carved up human existence into so-called "private" and "public" spheres.65 The woman, also defined as inferior by nature, was relegated to the home, the "private" sphere of human existence that made and kept women sealed off from the rest of human discourse. As with people of color, the Psycho-Social Isolation of women also has been enforced by law throughout most of the nation's history.66 Once again, therefore, the monuments to this past are to be found in the nation's law books. Monuments to this history include Bradwell v. Illinois,67 Goesaert v. Cleary,68 and Hoyt v. Florida.69 Thus, the history of sex relations in this country, like the

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history of race relations, has been a history of domination and subordination, of power for the dominant and isolation for the subordinated.

Today, women have managed to slip through the physical demarcations of the private/public dichotomy but women, like people of color, continue to be weighed down by new and more subtle forms of androsexism. The notorious "glass ceiling" and the so-called "mommy-track," for instance, tend to shunt women to the sidelines of social and economic mainstreams.70 In practice, these two devices help to justify different treatments of women in the workplace and help to excuse the perpetuation of customs and practices that undermine the independence and equality of working women individually and collectively.71 Though purportedly on equal footing in the workplace, cultural pressures and preferences thus exert a strong pull back into the traditional roles and strictures of the home even for the most determined and savvy women.

For sexual minorities, Psycho-Social Isolation has been and continues to be implemented through confinement to the Closet. Though the Closet, unlike the ghetto and the home, is not a physical construct, its boundaries and limitations were and are just as real and, in lived experience, just as tangible as well.72 Defined by dominant social forces as inferior or defective by nature, Lesbians, Gays, Bisexuals, and the trans- gendered, like people of color and women, were driven away from personal and professional opportunities and into a paralyzing sense of self-doubt, a fear of all and a loathing of self.73 For those who resisted the Closet, forcible institutionalization or worse awaited.74 Once again, the law has stood by to enforce the Psycho-Social Isolation of a disfavored and vulnerable group.

Though sexual minorities, like people of color and women, have begun to emerge from our traditional confines, the Closet continues to be the means through which society insists on marginalizing its Lesbian, Gay, Bisexual and trans-gendered members. The recent brouhaha over sexual minorities in the military is a poignant and Orwellian reminder of the Closet's potency: while recognizing formally the existence and contributions of sexual minorities in military life, dominant social forces nonetheless have insisted on erasing the existence and significance of this entire class of persons and, more insidiously, have insisted on punishing any objection or resistance to this blanket erasure.75 "Popular" initiatives such as Oregon's anti-Gay initiative76 and Colorado's notorious Amendment Two77 likewise seek to keep sexual minorities excluded and marginalized. Perhaps the most notorious legal monument to this history is Bowers v. Hardwick, in which the Court applauded the repression of same-sex love simply on the presumed belief that the majority disliked sexual minorities.78 So, as with people of color and women, exclusion, marginalization, and subordination continues to be the rule, the reality. For each group, Psycho-Social Isolation continues to be the weapon of oppression.

2. Connectivity & the Present

Turning to the present, our attention must focus on a question that can determine the measure of our success, or our

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failure. This question is the accommodation of "difference" and diversity within and among us. Of course, much has been said and written about "difference" and diversity during the past few years and, at times, real or imagined difference has threatened to fracture cooperative efforts toward empowerment and equality.79 These are real tensions, but they are not conclusive. Of course, we must air our tensions by talking with, not at, each other, and we also must open our ears and minds so that we not only listen but also hear the message of the words. Otherwise, we run of risk of reducing ourselves to the type of closed-mindedness that we all rail against.

At the outset, we must all recognize that the experience of confinement to the ghetto, to the home, and to the Closet, are not necessarily identical to each other. Indeed, no one Closet is necessarily identical to another. Nor is the experience of life within a ghetto identical among its inhabitants. Nor is the experience of every woman in her home the same. But each and every one of these experiences is about exclusion and erasure: exclusion and erasure are the central and common features for the experience of subordination based on race/ethnicity, sex/gender, and sexuality/sexual orientation. We must recognize that, within this range of common experience, there is no hierarchy of horror or suffering. On the contrary: the horrors of oppression afflict us all. This commonality should be a base of empathy from which to build affinity, and not a field of competing, divisive, self- defeating claims to greater measures of pain and suffering.

The challenge, then, is to animate our fundamental connectivity based on common experience without ignoring or denying real and relevant difference. Personally, I am an optimist on this score because I do not take a narrow view of connectivity, nor of my fellow humans. I have seen connectivity work.80 I have seen tension transformed into harmony, and potential failure thereby turned into unprecedented success.81 In these contexts, I have seen that difference, whether real or imagined, is something that we can transcend, and even affirmatively celebrate, as we undergo the process of building understanding and affinity. Difference, after all, is another word for diversity, and we profess to value diversity. We must come to appreciate that difference is what textures our experiential and situational connectivity.

The bottom line I urge is this: difference is not an obstacle to affinity. On the contrary, the accommodation of difference within an overarching consciousness of connectivity enables all of us-- people of color, women, and sexual minorities-- to make sure that we in fact dismantle in every respect the historic monopoly of consciousness that has disempowered and subordinated us all. By learning from each other the details and nuances of our respective subordinations we can reveal to each other the full range of the system that keeps us all down. In this way, we can make sure that we jointly combat Psycho-Social Isolation in all its aspects or facets, even those against which we have not personally brushed up or those which our respective experiences do not enable us to comprehend personally. By using our commonalties and our differences to confront and challenge Psycho-Social Isolation broadly and effectively, we increase our respective as well as our collective prospects of overcoming the shared legacy of our common past.

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Thus, connectivity does not suggest that people of color, women, and sexual minorities in each instance are situated identically, or that Feminist, Critical Race, or Queer scholarship must abide by some sort of "equal time" rule that might disallow concentration on one issue or another. Instead, connectivity suggests that all our respective inquiries would yield a higher grade of insight if informed by a broader base of experience and if guided by a sense of shared experience. In sum, connectivity denotes synthesis and synergy; it does not imply homogenization. Ultimately, then the fear we need to harbor about difference is its exploitation or exaggeration.

3. Connectivity & the Future

And so, finally, I turn to connectivity and our common vision of a future that takes us beyond Psycho-Social Isolation. The path toward this future, of course, is based on an understanding that the purposes and effects of Psycho-Social Isolation were and are identical for each group. In each instance, the first objective of Psycho-Social Isolation was and is ignorance. In each instance the second objective was and is invisibility. The two work in tandem to rationalize racist, androsexist, heterosexist domination. This rationalization, when internalized by people of color, women, and sexual minorities, serves to demoralize and demobilize us. Thus, ignorance, invisibility, and internalization in combination are the purposes and effects of Psycho-Social Isolation.

Psycho-Social Isolation was and is calculated to make and to keep us ignorant by making and keeping us atomized, separated from our kind, our tribes. Psycho-Social Isolation thus makes and keeps us ignorant of our selves-- of who we are-- and also of others like us. Psycho-Social Isolation additionally was and is calculated to make and to keep us invisible. Psycho-Social isolation invisiblizes us so that we remain hidden from each other, and from the social and economic mainstreams as well. Psycho-social Isolation thus subverts our capacity for group identity and distances us from the power centers of society. Thus, ignorance keeps us invisible, and invisibility keeps us ignorant.

Ultimately, Psycho-Social Isolation was and is calculated to establish a belief in white, male, heterosexual supremacy and, conversely, to instill a sense of inherent inferiority among people of color, women, and sexual minorities. Psycho-Social Isolation, as such, is a project of internalization that uses ignorance and invisibility as its tools. Through our internalization of inherent inferiority, dominant social forces cow us, and thus secure our acquiescence to our own disempowerment and our own subordination. Psycho-Social Isolation effectively keeps people of color, women, and sexual minorities from realizing our worth, our capacity, our power, and our potential both as individuals and as communities. Psycho- Social Isolation ultimately keeps us from realizing our connectivity.

At its core, then, the Psycho-Social Isolation strategy, whether implemented through confinement to the ghetto, the home, or the Closet, is an exercise in the monopolization of consciousness. Psycho-Social Isolation is an example of the "divide and conquer" strategy. It is the manipulation of power

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to serve the few at the expense of the many. Each of us, whether as people of color, as women, and/or as members of sexual minorities, are struggling to break up this historic monopoly and manipulation of consciousness and power, and to break out of our respective confinements. Each of us is trying to come out and step up: to realize ourselves, both as individuals and as communities, to realize empowerment and equality, both personally and collectively.

Accordingly, Feminist, Critical Race, or Queer scholarship sensitive to connectivity would be singularly equipped to subject racist, sexist and heterosexist legal emplacements to a critical examination of their significance to people of color, women and sexual minorities. The depth and scope of a unified critique could strengthen its incisiveness. Such a synthesis could amount to synergy.

C. A Note on Coalition & Connectivity

The concept and rhetoric of coalition-building is not a novelty to our communities. However, connectivity and coalition do not denote precisely the same things, though the two of course are quite related. Connectivity, as I have tried to elaborate, denotes an active and personal linkage of consciousness. It is a personal awakening to the commonalties that situate and have situated people of color, women, and sexual minorities in similar riptides of social discrimination and legal oppression. Connectivity is about understanding the ways in which each of our lives is prodded by dominant social and legal forces to follow common scripts of denial and denigration.

Coalition-building, on the other hand, denotes a strategic combining of forces in order to take collective actions or to effectuate coordinated plans. In this sense, coalition-building is about group tactics, rather than personal awakenings. But, I hope it is self-evident that connectivity precedes and facilitates coalition-building. By understanding our connectivity we pave the road for our coalition-building and also begin to appreciate the need for, and urgency of, coalition- building with our situational kin.82

Not surprisingly, I favor both connectivity and coalition. I think and I know that they go hand-in-hand. And so, though this essay focuses on connectivity (because it is the less- discussed subject of the two), I hope that a heightened sense of our commonalities will strengthen our sense of solidarity, and our coalition-building efforts. In turn, I hope that a strengthening of our solidarity and coalition-building efforts will enhance the durability and the effectiveness of our coalitions. In this way, each of us, as individuals and as members of our diverse and overlapping communities, can hasten the time when people of color, women, and sexual minorities will replace disempowerment and subordination with empowerment and equality, not just in theory, not just on the books, but in fact, in lived experience.

III.

A PERSONAL EPILOGUE If my personal discussions are any barometer of the broader legal landscape, the theoretical undertakings proposed here may raise an eyebrow or two. If serious discourse is thereby

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generated, all the better. To that end, I note the three clusters of skepticism that informal discussions leading up to this essay have pointed out.

A. Left-handed, Bald-headed Golfers  the Law

The threshold skepticism questions the propriety or viability of Queer legal theory altogether: what's next, a theory for left-handed, bald-headed golfers?83 The retort is relatively simple: any classification that dominant social forces concoct to stigmatize systematically the individuals pushed into them is worthy of critical re-examination. Fittingly, that re- examination should be as sweeping as the discrimination that it addresses. This standard follows from the guarantee that American society formally issues to all-- "equal justice under law."84 Applied to the Queer category, this standard shows abundant justification for the proposed venture.85 Whether other categories hypothesized by active imaginations also satisfy this standard is a question that, though interesting, frankly does not address this venture's value.

B. The Consciousness Curve

The second skepticism questions the practicality animating a sense of connectivity among and between women, sexual minorities and people of color. Is the notion utopian? Perhaps, but I think not: converging interests invite us in that direction. In fact, recent events indicate that an increasingly greater number of persons are beginning to recognize the social realities that undergird my arguments and aspirations.86 Though we cannot foretell where today will lead, the consciousness curve favors connectivity.

C. My Selves, My Kinds

Finally, the third skepticism wonders whether my optimism amounts to naivete. Perhaps it does, but I think not. Time will tell. If it is so, I can only hope that this optimism proves infectious: as a Gay Latino male, mutually exclusive affinities are unthinkable. I have no choice but to establish the connections that cohere my persona and my communities. Race/ethnicity, sex/gender, and sexuality/sexual orientation work in tandem to construct my self in ways that a blindsided mainstream cannot (nor cares to) fathom, and that I have yet to master. In the end, I do know one thing: my multiplicity is my contribution to coalition through connectivity. To others out there like me, though different from me, I invite dialogue and reciprocation.

Conclusion

The events of the past twenty-five years, and their impact on legal culture, have set the stage for the emergence of Queer legal theory. Sooner or later, and it ought to be sooner rather than later, Queer legal theory must take its place among, and make its contributions to, liberationist legal scholarship if the law is to become informed and reformed regarding sexual minorityhood, and if the law is to be responsive and accountable to sexual minorities. However, the advent of Queer legal theory should not simply expand the law's horizons regarding sexual minorities, though this expansion is much needed and long overdue

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in order to make the law responsive and accountable to Lesbian, Gay, Bisexual, and trans-gendered issues. Instead, the advent of Queer legal theory also should occasion an opportunity to discover the connectivity that people of color, women, and sexual minorities all share with and among each other. This sense of connectivity denotes a personal recognition of the past, present, and future commonalties that shape Critical Race, Feminist, and Queer quests and perspectives. This sense of connectivity also includes a celebration of our diversity based on the multiplicities that constitute us as layered individuals and as overlapping cross-communities. In sum, the advent of Queer legal theory must inform legal culture about sexual minorities, and should aid the accommodation and affirmation of difference and diversity within an overarching consciousness of connectivity,

1. Associate Professor of Law, California Western School of Law. J.S.D. Stanford Law School 1994; J.S.M. Stanford Law School 1991; J.D. cum laude University of Florida College of Law 1984; B.A. University of California-Berkeley 1978. This essay is based in part on a talk delivered at the 1993 California Statewide Minority Attorneys' Conference in San Francisco on September 11, 1993. My thanks go Lawrence Friedman and Paul Brest, who extended the earliest validation of my interest in the creation of Queer legal theory. My thanks go as well to Bob Weisberg, Barbara Fried, Angela Harris, Judy McKelvey, Lynne Henderson, Marnie Mahoney, Joan Mahoney, Marc Fajer, Mary Coombs, and Barb Cox for lending their ear and support at critical times.

2. As used in this essay, "sexual minorities" primarily refers to Lesbians, Gay men, and Bisexuals, but also includes the transgendered, which principally means transsexuals and transvestites.

3. As described below, the term principally signifies two concepts. First, Queer connotes a sense of inclusiveness and egalitarianism because it groups together Lesbians, Gay males, Bisexuals and the trans-gendered. Second, Queer denotes a sense of radicalism in the fight against sex/gender subordination because it symbolizes an assertive self-identity. By using the term here, the essay consciously seeks to invoke both concepts. See also JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 223-42 (1993) (discussing the theoretics of the term).

4. For a current history of the Stonewall Riots, see MARTIN DUBERMAN, STONEWALL (1993).

5. The best account of this process is JOHN D'EMILIO, SEXUAL POLITICS, SEXUAL COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES, 1940-1970 (1983) hereinafter COMMUNITIES. A companion book of essays amplifies this account. See JOHN D'EMILIO,

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MAKING TROUBLE: ESSAYS ON GAY HISTORY, POLITICS, AND THE UNIVERSITY (1992), hereinafter TROUBLE.

6. D'EMILIO, COMMUNITIES, supra note 5 at 9-22. See also ANDREA WEISS & GRETA SCHILLER, BEFORE STONEWALL: THE MAKING OF A GAY AND LESBIAN COMMUNITY (1988).

7. See, e.q., ERIC MARCUS, MAKING HISTORY: THE STRUGGLE FOR GAY AND LESBIAN EQUAL RIGHTS, 1~45-1990-- AN ORAL HISTORY (1992).

8. D'EMILIO, COMMUNITIES, supra note 5 at 23-39.

9. D'EMILIO, COMMUNITIES, supra note 5 at 24-28.

10. Id. at 29-31.

11. Id. at 31-33.

12. The New York story is told in D'EMILIO, COMMUNITIES, supra note 5 at 149-75.

13. The San Francisco story is told in D'EMILIO, COMMUNITIES, supra note 5 at 176-95.

14. But these pioneering activists had to fight fiercely to make new hometowns for themselves within the nation's urban centers because the cities did not cheerfully welcome these newcomers. See, e.q., Project, The Consentinq Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, 13 U.C.L.A. L. REV. 643 (1966); Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960-1980, 12 COLUM. HUMAN RTS. L. REV. 159 (1980-81). Today, Gays and Lesbians are fanning out into more rural areas and oftentimes find themselves receiving the same lack of welcome. E.q., Mississippi Burning: Lesbians and Intolerance in a Small Town, TIME, Dec. 20, 1993, at 33 (reporting the campaign of harassment, including nighttime shotgun blasts, mounted in 1993 by the residents of Ovid, Mississippi to drive out of town a women's retreat run by Lesbians).

15. D'EMILIO, COMMUNITIES, supra note 5 at 75-91.

16. See D'EMILIO, TROUBLE, supra note 5 at 237-39.

17. See D'EMILIO, COMMUNITIES, supra note 5 at 223-31.

18. D'EMILIO, COMMUNITIES, supra note 5 at 231-33. D'EMILIO, TROUBLE, supra note 5 at 239-41.

19. The account of this process, as it occurred in San Francisco specifically, is set forth in D'EMILIO, TROUBLE, supra note 5 at 74-95.

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20. See Arthur Bell, The Bath Life Gets Respectability ln LAVENDER CULTURE 77 (Karla Jay ¨ Allen Young eds. 1978) (describing both the delights and the grimness of life in the baths of New York City).

21. The intensity of this first wave of sexual exuberance is captured in JOHN RECHY, SEXUAL OUTLAW: A DOCUMENTARY (rev. ed. 1984) (depicting the promiscuous "sexhunts" of those years).

22. D'EMILIO, TROUBLE, supra note 5 at 242-46.

23. D'EMILIO, TROUBLE, supra note 5 at 246, 251-56.

24. See generally Allen Young, Out of the Closets, Into the Streets, ln OUT OF THE CLOSET: VOICES OF GAY LIBERATION 6 (Karla Jay & Allen Young eds. 1977)

25. "After all, sexual liberation meant doing what felt good, without guilt or shame, even though society believed otherwise." Bell, supra note 20 at 81.

26. D'EMILIO, TROUBLE, supra note 5 at 262-68.

27. See FRANK BROWNING, THE CULTURE OF DESIRE: PARADOX AND PERVERSITY IN GAY LIVES TODAY 26-54 (1993) (describing "Queer rage" in San Francisco and how it has produced a highly politicized and radicalized sensibility among today's community leaders). This rage, along with the heartbreak and bewilderment spread by the plunge into AIDS, is detailed in various other works. See, e.q., PERSONAL DISPATCHES: WRITERS CONFRONT AIDS (John Preston ed. 1989) (presenting a collection of essays by various authors); ANDREW HOLLERAN, GROUND ZERO (1988) (presenting a series of essays by the same author, and focused on the New York experience); PAUL MONETTE, BORROWED TIME: AN AIDS MEMOIR (1988) (describing the slow death of the author's partner in Los Angeles).

28. See, e.q., GAY VOICES FROM EAST GERMANY (Jurgen Lemke ed. 1991). See generally HOMOSEXUALITY: A EUROPEAN COMMUNITY ISSUE, ESSAYS ON LESBIAN AND GAY RIGHTS IN EUROPEAN LAW AND POLICY (Kees Waaldijk & Andrew Clapham eds. 1993).

29. See, e.q., Frances Fitzgerald, The Castro-- I, THE NEW YORKER, July 21, 1986, at 34 and Frances Fitzgerald, The Castro-II, July 28, 1986, at 44 (providing an in-depth look at the Gay and Lesbian community centered in the Castro district of San Francisco). See also Gayle Rubin, Thinking Sex, ln PLEASURE AND DANGER: EXPLORING FEMALE SEXUALITY 267, 296-97 (Carole S. Vance ed. 1984) (observing that "Gay pioneers occupied neighborhoods that were centrally

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located but run down" and then achieved "spectacular success... in creating a variegated gay economy").

30. E.g., MEN ON MEN: BEST NEW GAY FICTION (George Stambolian ed. 1986) and WOMEN ON WOMEN: AN ANTHOLOGY OF AMERICAN LESBIAN SHORT FICTION (Joan Nestle & Naomi Holoch eds. 1990).

31. E.g., ROBERT MAPPLETHORPE, BLACK BOOK (1986).

32. E.g., ARMISTEAD MAUPIN, 28 BARBARY LANE: A TALES OF THE CITY OMNIBUS (1990) (pulling together the popular "tales of city" series, which also were produced as a television mini-series during 1994).

33. See generally Michael Bronski, CULTURE SHOCK: THE MAKING OF A GAY SENSIBILITY (1984).

34. For instance, in the early 1990s, the San Francisco Board of Supervisors included Harry Britt, who served as President of the Board, Roberta Achtenberg, and Carole Midgen, all of whom were elected as openly Gay or Lesbian leaders. Moreover the mayor, Art Agnos, was a openly allied with the Gay and Lesbian political community.

35. See infra notes 56 to 79 and accompanying text.

36. E.g., David Link, I am Not Queer, 25 REASON 45 (1993) (arguing that Queer will always trigger negative connotations and that the radicalism of Queerness is unnecessary).

37. Much of this scholarship is incorporated in Francisco Valdes, Queers, Sissies, Dykes & Tomboys: Deconstructing the Conflation of Sex, Gender, and Sexual Orientation in EuroAmerican Law and Society, CAL. L. REV.(forthcoming).

38. See Lawrence Friedman, The Concept of Self in Legal Culture, 38 Cleve. St. L. Rev. 517 (1990).

39. The basics of this ongoing struggle is captured in JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA (1991) .

40. See, e.g., Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 BERKELEY WOMEN'S L.J. 191 (1989-90) (critiquing the general tendency to omit sexual orientation issues from Feminist legal scholarship).

41. See infra notes 57 to 82 and accompanying text.

42. See infra notes 57 to 82 and accompanying text.

43. Angela Harris, Race, Essentialism, and Feminist

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Legal Theory, 42 STAN. L. REV. 582, 608 (1990).

44. See Kimberle Crenshaw, Demarginalizinq the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 166 (1989) (introducing the concept of intersectionality); Kimberle Crenshaw, Mappinq the Margins: of Color, 43 STAN. L. REV. 1241, 1251-53 (1991) (developing and applying the insights of intersectionality).

45. Liz, My Name is Liz, ln COMPANERAS: LATINA LESBIANS (AN ANTHOLOGY) 77, 79 (Juanita Ramos ed. 1987).

46. E.q., Sleeping With the Enemy? Talking About Men, Race, and Relationships, OUT/LOOK, Winter 1992, at 30.

47. These two examples are not isolated instances, but part of a small though growing discourse. See also, e.q., Richard Fung, Looking for My Penis: The Eroticized Asian in Gay Video Porn, ln HOW DO I LOOK? QUEER FILM AND VIDEO 145-60 (Bad Object-Choices ed. 1991); Kobena Mercer, Skin Head Sex Thing: Racial Difference and the Homoerotic Imaginary, ln id. at 169-210.

48. E.q., Mari J. Matsuda, Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition, 43 STAN. L. REV. 1183 (1991).

49. However, reflecting the dearth of germane material from the law, most of the readings compiled for this workshop came from sources in other disciplines. See Readings for Plenary Session on Race  Sexual Orientation for the 1994 Critical Race Theory Workshop (Peter Kwan & Francisco Valdes eds. 1994) (copy on file with author).

50. Matsuda, supra note 48 at 1188.

51. See generally Mari Matsuda, When The First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 Women's Rights Rptr. 7 (1989) (introducing the concept of multiple consciousness as the ability to see how law operates on various levels simultaneously and sometimes inconsistently).

52. See, e.g., FORMS OF DESIRE: SEXUAL ORIENTATION AND THE SOCIAL CONSTRUCTIONIST CONTROVERSY (Edward Stein ed., 1990). See also John P. De Ceccon & John P. Elia, A Critique and Synthesis of Biological Essentialism and Social Constructionist Views of Sexuality and Gender, 24 J. HOMOSEXUALITY 1 (1993); Carole S. Vance, Social Construction Theory: Problems in the History of Sexuality, ln HOMOSEXUALITY, WHICH HOMOSEXUALITY?:

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ESSAYS FROM THE INTERNATIONAL SCIENTIFIC CONFERENCE ON LESBIAN AND GAY STUDIES (Carole Vance, Martha Vicinus ¨ Jeffrey Weeks eds., 1989).

53. See supra notes 57 to 79 and accompanying text.

54. RUTHANN ROBSON, LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW 22 (1992) (noting that the bulk of "sexual orientation" scholarship focuses on Gay male issues and arguing that "[i]f this trend continues, [Q]ueer legal theory will be gay male theory")

55. See Andrea L. Johnson, Legal And Regulatory Issues Confronting Cities in Developing an Interconnected Fiber Optic Network; The San Diego Model, RUTGERS COMPUTER & TECH. L.J. (1994) (manuscript on file with author).

56. The concept of Psycho-Social Isolation, which is sketched here, is developed in more detail in Francisco Valdes, Sourcing the Mutualities and Continuities of Heterosexism and Androsexism: Tracing the Conflation of Sex, Gender. and Sexual Orientation to Its Origins (forthcoming) (unfinished manuscript on file with author).

57. See generally Martha Mahoney, Note, Law and Racial Geography: Public Housing and the Economy in New Orleans, 42 STAN. L. REV. 1251 (1990) (using the New Orleans experience to examine how housing politics and policies have failed to overcome the physical segregation races through ghettos).

58. See, e.g., Thomas Ross, The Rhetorical Tapestry of Race: White Innocence and Black Abstraction, 32 WM. & MARY L. REV. 1 (1990) (showing the ways in which African-Americans have been constructed and represented as inferiors).

59. 60 U.S. (19 How.) 393 (1857) (in which the Supreme Court validated race-based slavery by defining African-Americans as "property" with no rights rather than as "citizens" with standing to invoke the protection of the courts).

60. 163 U.S. 537 (1896) (in which the Supreme Court validated the now-discredited "separate but equal" doctrine that in actuality kept African-Americans "separate" from the white majority but most certainly not "equal" to it).

61. 323 U.S. 214 (1944) (in which the Supreme Court validated the internment of persons with a Japanese ancestry and the resulting confiscation of their property). This case was one of several that approved the government's mistreatment of Asian Americans during World War II. See generally PETER IRONS, JUSTICE AT

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WAR: THE STORY OF THE JAPANESE AMERICAN INTERNMENT CASES (1983).

62. See, e.g., Roy L. Brooks, The Ecology of Inequality: The Rise of the African-American Underclass, 8 HARV. BLACKLETTER J. 1 (1991) (exploring the reasons for the continuing segregation of African-Americans in pockets of poverty).

63. See generally Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077 (1991) (exploring ways and means through which racial minorities may go beyond token gains in political arenas).

64. See generally DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM (1992) (considering the apparent permanence of racist ideology in law and society).

65. See generally Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982) (arguing that the distinction does not dictate judicial choices and rulings but that it facilitates desired outcomes motivated by other reasons).

66. See generally Wendy W. Williams, The Equality Crisis: Some Reflections On Culture. Courts & Feminism, 7 WOMEN'S RTS. L. REP. 175, 176-79 (1982) (reviewing judicial mistreatment of women).

67. 83 U.S. (16 Wall. 130 (1872) (in which the Court approved the exclusion of women from the practice of law, partially on the grounds that God meant for them to stay at home).

68. 335 U.S. 464 (1948) (in which the Court upheld the denial of bartending licenses to all women except the wives or daughters of male bar owners).

69. 368 U.S. 57 (1961) (in which the Court upheld the automatic exclusion of women from juries so that they could stay home and continue to serve as the "center" of family life).

70. E.q., Honorable Judith S. Kaye, Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality, 57 FORD. L. REV. 111 (1989) (a lecture in which Judge Kaye discusses how obstacles like the mommy track and the glass ceiling impeded the social and economic progress of women in law practice) and Leslie Bender, Sex Discrimination or Gender Inequality?, 57 FORD. L. REV. 941 (1989) (commenting on the Kaye lecture).

71. See, e.q., Ellen V. Futter, Women Professionals:

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The Slow Rise to the Top, 57 FORD. L. REV. 965 (1989) (discussing how women have been allowed into entry-level positions while remaining excluded from inner circles of power).

72. See generally THE ORIGINAL COMING OUT STORIES (Julia Penelope & Susan J. Wolfe eds. 2d ed. 1989) (describing the experiences of various men and women while in the Closet and while trying to "come out" of the Closet).

73. See generally MICHAEL SIGNORILE, QUEER IN AMERICA (1993) (describing and denouncing the continuing mistreatment of Lesbians and Gay men in American society).

74. E.g., Gene Weingarten, Fatal Abstraction: The Death and Life of Artist Carroll Sockwell-- An Investigative Obituary, WASH. POST, Sept. 27, 1992, at F1 (reporting that the artist had "been committed to [an institution] by his family because he was gay").

75. See, e.g., Francisco Valdes, Sexual Minorities in the Military: Charting the Constitutional Frontiers of Status and Conduct, 27 CREIGHT. L. REV. 381 (1994) (critiquing the history of the exclusionary policy and its acceptance by the courts, including the most recent "don't ask, don't tell" compromise issued by the Clinton Administration in 1994).

76. See Brad Cain, Anti-Gay Proposal Remains Divisive After Oregon Vote, SAN DIEGO UNION-TRIB., Nov. 8, 1992, at a-35 (reporting that the initiative, though defeated, nonetheless had "unleashed prejudice" against sexual minorities). See also Honorable Hans A. Linde, When Initiative Lawmaking is Not "Republican Government": The Campaign Against Homosexuality, 72 OR. L. REV. 19 (1993) (considering how "popular" initiatives that seek to formalize societal discrimination against unpopular groups may violate the constitutional guarantee of republican government).

77. Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (holding that efforts to embed the right to discriminate in the constitution effectively "fence out" minority groups from electoral opportunities to change the law and thus violate the right of all to participate in the political process on equal footing).

78. 478 U.S. 186 (1986).

79. See, e.g., Sheila Foster, Difference and Equality: A Critical Assessment of "Diversity", 1993 WISC. L. REV. 105 (critiquing current notions of diversity arguing that the goal of diversity should be to include individuals from groups that have been systematically excluded or marginalized in society and in law).

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80. The most recent example from my personal history is the San Diego County Bar Association Task Force on Diversity in the Profession, to which I belong. The task force was formed in 1991 to bring together representatives from traditionally marginalized groups within the legal profession in order to discuss problems and craft solutions. The task force has developed a first-ever bias survey that comprehensively addresses prejudice based on race, nationality, religion, sex, sexual orientation, and physical handicap. Based on personal participation, the deliberations and proceedings of the task force illustrate and demonstrate the potential power of connective sensibilities and efforts.

81. Another example from my personal history involves the Coalition for a Diversified Faculty at Stanford Law School during 1990-91, to which I belonged. This ad hoc group of students came together to help the school identify prospective candidates for faculty appointments, but the many needs to be filled coupled with the few positions available threatened to rupture the coalition. However, after much discussion, the group came to the consensus that the appointment of a woman of color and of an openly Lesbian or Gay candidate should take precedence over other needs because the faculty at that time included neither type of person. That year, two of the three appointments made went to a woman of color and an openly Lesbian candidate.

82. See generally Sharon Parker, Understanding Coalition, 43 STAN. L. REV. 1193 (1991) (describing coalitions as "something natural, an extension of kinship, like family and community").

83. This "category" was posed in an after-class discussion during the Legal Education Seminar offered at Stanford Law School in the Autumn 1991 term. I note with interest that the category overlaps somewhat with a similar query posed to Ruthann Robson in a different setting. See Ruthann Robson, Embodiment(s): The Possibilities of Lesbian Legal Theory in Bodies Problematized by Postmodernisms and Feminisms, 2 L. & SEXUALITY 37, 58 (1992) (the precise query posed there was "green-eyed golf aficionados"). I do not know what to make of the similarity in hypothesizing but note it for the record, as they say.

84. The words appear above the portico of the Supreme Court building in Washington, D.C., much like an advertisement on a corporate headquarters. See also, e.g., U.S. CONST. amend. XIV.

85. For a fairly comprehensive listing of inequalities, see Developments in the Law- Sexual

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Orientation and the Law. 102 HARV. L. REV. 1508 (1989).

86. E.g., Civil Rights Group Joins Boycott Effort, L.A. TIMES, Jan. 7, 1993, at A13 (reporting that the predominantly Black Southern Christian Leadership Conference had joined the boycott of Colorado called by Lesbian and Gay rights activists following the vote); Latino Journalists Vote to Move Convention Out of Colorado, L.A. TIMES, Jan. 10, 1993, at 23 (reporting that the National Association of Hispanic Journalists also had joined the boycott protesting passage of the amendment); HRCF Connects Choice With Gay/Lesbian Agenda at Nat'l March, GAY & LESBIAN TIMES, April 16, 1992, at 19 (reporting that the Human Rights Campaign Fund, the leading sexual minority political action committee, had linked reproductive choice with Lesbian and Gay issues); Gary Libman, Sharing a Political Platform, L.A. TIMES, Nov. 15, 1990, at E1 (reporting that Lesbian involvement in AIDS issues and organizations has reduced sexism among Gay males and helped to forge new alliances). See also The Hon. Thelton E. Henderson, Coming Out for Gay Rights, 3 YALE J.L. & LIB. 25 (1992) (arguing that the subordination of sexual minorities and or racial minorities are akin); Mari J. Matsuda, Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition, 43 STAN. L. REV. 1183 (1991) (urging that critical legal scholars look for and expose the inter-relationships of various bigotries).

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