Barbara J. Cox*

I am somewhat uncomfortable participating on this panel in the role of commentator. My discomfort comes from the fact that I just started reading the recent literature about race, ethnicity, and sexual orientation after Frank Valdes1 asked me to be a member of this panel. After agreeing to participate, I decided to look at my own scholarship, which discusses various gay and lesbian legal issues, and see whether it seemed "unduly disconnected" from issues of race, ethnicity, and class. I would like to share my discoveries in this essay and the thoughts that have come from reviewing my scholarship, that of the panelists, and the other literature that exists.

Before doing the research to prepare for this discussion, I had spent time thinking about the intersection, cosynthesis, or analogy between race, ethnicity, class, and sexual orientation. As someone who is somewhat familiar with fem crit, race crit and queer crit theories,2 I recognize that each and all of our many identities impact both on theory and practice in solving the issues that confront us.

Additionally, my first two articles paid close attention to issues of race, ethnicity, and class while discussing the needs of gay and lesbian families to obtain domestic partner (or as I called them then, alternative family) benefits. My first article on domestic partner benefits explored the many ways in which restricting the definition of family to those in traditional, marital nuclear families negatively impacted gay men and lesbians.3 Some of the issues I analyzed also showed that the negative impact was more severe for some members of the gay and lesbian community, particularly people of color. For example, I discussed Moore v. East Cleveland,4 which considered the constitutionality of a zoning ordinance that distinguished between nuclear and extended families. The court struck down the ordinance, noting that the "nation's tradition of family life includes uncles, aunts, cousins and especially grandchildren sharing a household along with parents and children."5 Even the United States Supreme Court recognized that restrictive definitions of family in zoning ordinances negatively impacted more people of color who more frequently than whites lived in extended families. My project was to show how those restrictive definitions also significantly impacted gay and lesbian families, and especially those gays and lesbians who are people of color.

My second article specifically explored how restricting family recognition to heterosexual, nuclear families or even two-person domestic partnerships had a particularly negative impact on poor and working class families, people of color, and gay men and lesbians who tend to form extended alternative families and oftentimes cannot fit within the restricted definitions used of "two adults....and their dependent children."6 I argued that the negative impact increases, oftentimes exponentially, when those affected are gay and lesbian people of color who are poor or working class.

The article concentrated on the perspectives of women and the impact of patriarchy on the subordination of women within many families.7 The article discussed alternative family rights in a context which included the perspectives of women of different races, classes, and sexual orientations. I felt these perspectives were necessary to any "meaningful critique of the accepted family definition because lesbians, poor and working class women, and women of color form families outside the traditional definition more often than do heterosexual, white, middle-class women."8

I was concerned in both articles about the impact of family definitions on poor and working class ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 1--------------------------------------- people, recognizing in both situations that the impact of racism in our society has led to a disproportionate percentage of people of color being trapped in the economic underclass. I was particularly concerned with the restriction of family benefits to the traditional nuclear family because that meant that benefits which were intended to provide economic support to families were denied to these alternative families which compounded their financial problems.

In the past four years, my scholarship has focused on same-sex marriage and conflicts of law. There has been much disagreement among lesbian and gay activists and scholars about whether the gay and lesbian community should seek the freedom for same-sex couples to marry. Some of the objections raised by various scholars, including Darren Hutchinson,9 Nancy Polikoff,10 and Paula Ettelbrick,11 have been that marriage would simply provide more benefits to those persons in our communities who are middle- or upper-class and would not address problems of gay and lesbian people who are poor or working class.

I disagree with that perspective. The ideas explored in my domestic partnership articles indicate that obtaining the freedom to marry for gay and lesbian couples may result in providing significant economic benefits to the poor and working class members of our communities. It is true that marriage may negatively impact some people who are receiving government benefits because their spouse's income and property would then be imputed to their own in determining benefit eligibility.12

But it is equally true that members of the working poor and working class who would be eligible for family health insurance, educational, and other benefits if they were married, would obtain significant benefits from being able to choose whether marriage is consistent with their own views of their relationships.13 Additionally, because many of the poor, working class, and middle class do not have access to lawyers to draft documents to protect their relationships and may be unaware or unable to get advice on how to limit the negative effects of a heterosexist society on their lives, they may find that marriage will provide them with the same automatic protections that are currently afforded to other married couples. They would not have to spend scarce resources having wills, powers of attorney for property and health care, and other documents drafted to protect their families. The regime of protections that currently recogize and protect marital relationships without necessitating any additional documents would mean added protections for many of these families.

To me, it is unimportant where one falls when discussing this and other issues. The points made by all are valuable to consider. What is important is that we have the conversation--meaning that when discussing the pros and cons of seeking the freedom to marry for same-sex couples, we must consider those pros and cons for all members of the gay and lesbian community, not just those who are white and economically advantaged.

The other time that my writing centered on how issues facing gay and lesbian families (my primary focus) are impacted by recognition of racism, ethnocentrism, classism, able-bodism, and other expressions of privilege was in working on a book proposal with Frank Valdes and Ruthann Robson. We were preparing a proposal for a book on sexuality and sexual orientation, and both Frank and Ruthann were very concerned that our material include the perspectives of and issues facing gays and lesbians who are poor, working class, people of color, disabled and the numerous combinations of each. I am reluctant to admit that, while I immediately agreed with the need to include such perspectives and materials, it was Frank and Ruthann who made that a primary focus of our book proposal, not me. Going along with the idea of having an inclusive perspective when someone else raises it is not and cannot be enough.

In preparing for this panel discussion, I have realized that perhaps I too readily accept my white privilege which permits me to wait for someone else to ask whether I am including these questions and perspectives in my scholarly inquiry. I have permitted that privilege to limit my focus and disable me from being among those who were primary in creating space for the dialogue that is occurring today. As a white person in a racist society, I am granted insider status, despite my identity as a lesbian, a woman, a recovering drug addict and alcoholic.

I can recognize my white privilege by many different indicia. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 2---------------------------------------

First, when I was chair of the AALS Section on Gay and Lesbian Legal Issues, the programs that I helped to organize for the 1991 AALS conference did not raise the questions that are being asked today. I could use the excuse provided by Frank Valdes in his recent Queer Margins, Queer Ethics article that gay and lesbian scholarship was in an essentialist first stage,14 and that "postmodern insights of multiplicity and intersectionality appeared relatively recently on the legal scholarly scene -- the late 1980s and early 1990s -- and thus perhaps tardy for meaningful incorporation into ongoing first-generation projects or agendas.15 But that would be primarily an excuse, not an honest answer for why I did not organize a panel such as this one for the 1991 annual conference.

Second, I have come recently to reading the scholarship on race, ethnicity, and sexual orientation that has been written by members of today's panel and other authors, many of whom are in this audience. I believe it is white privilege that has allowed me not to notice how our communities' discussions of gay and lesbian liberation have consistently not recognized that the questions and answers may be different depending on what other communities to which one belongs. When I look at gay and lesbian issues with the privilege given due to my whiteness, I do not have to recognize that the questions I ask and the answers I envision may not work for all members of the gay and lesbian community. White privilege permits me to retain my ignorance and not even recognize it as ignorance until appealed to by my colleagues. For example, I am embarrassed to admit that I had to ask Frank to give me a list of articles to read to prepare for this panel. I have now read most of them and recognize how my white privilege allowed me to be unaware of their existence.

Third, I have shared white privilege with many of the other chairs of this section. We have been, in large part, mainly white academics who focus on gay and lesbian issues. The question that bothers me (once I am conscious enough to ask it) is why is it most often a person of color who organizes a discussion like this one. The same can be said for other outsider groups as well--when a woman becomes chair, she oftentimes sees different issues and sees the same issues differently because she is a woman; when a lesbian becomes chair or when a person with a disability becomes chair, they too see differently than the privileged ones before them. So too in this instance: when a Latino gay man became chair, he asked why it is that we are not discussing race and ethnicity at the same time we were discussing sexual orientation.

Because privilege can often blind us to questions that are obvious to those who are not blind, those of us with white privilege many times wait until a person of color asks us to think about race, ethnicity, and sexual orientation. We do not take responsibility ourselves to see what so clearly disturbs our colleagues. Secure in our privilege, we too often limit our vision of the things that need to be discussed, the ways they need to be discussed, and the questions and answers that come from discussing them.

I find it difficult to write this essay and take responsibility for having white privilege. I feel a need to try to explain to you, and perhaps to myself, that I am someone who has tried to recognize that I have white privilege, learn what it means both to have that privilege and not to have that privilege, and spend my energy both diluting the power of that privilege, as well as seeking understanding of the ways in which it clouds my vision. I want to try and explain to you that I have done much work on recognizing my white privilege and my racism, that I have asked myself to learn and not wait to be taught by people of color, that I have tried to understand that my work is to help other white people recognize the privilege that we receive from our whiteness and help to destroy or, at least, dilute it.

But even while I want to explain all that, to show how some of my scholarship does include a clear recognition of issues of class, race, and ethnicity in structuring ways to address the legal issues facing the gay and lesbian community, I too must be honest in recognizing that I have had the choice to include or not include, a choice that is always based on privilege.

What I wish for myself is that when Frank had called me to discuss this panel, I would not have needed to ask for a set of ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 3--------------------------------------- reading materials. Instead, I would have read them already, knowing that I needed to be aware of the perspectives offered in that discussion. I feel comfortable claiming a certain expertise and awareness of the legal literature discussing the issues facing the lesbian and gay community. But my comfort has been shaken because I was unaware of an entire portion of that literature. While I know that, thankfully now due to its vast expression and development, I cannot have read everything, I also know that, for most other legal issues facing the gay and lesbian community, I have at least a passing acquaintance with the literature. I could once again try to excuse myself by saying that I can extrapolate from the fem/race/lat/queercrit reading on some of the issues that have been discussed by these authors. But that would be a weak excuse, and would ignore that there were many issues that I had not considered and much knowledge that I did not have. I have now read most of that literature and recognize how white privilege allowed me to lack knowledge of its existence.

My hope is that all of us who participated in the discussion at the AALS conference, and all of us who hear the tape of that conversation, and all of us who are reading or writing for this symposium issue will take heed of how important this discussion is. We need to change the whiteness of gay and lesbian scholarship. We need to recognize its monolithic viewpoint. We need to make sure that the next time we discuss these issues, two things have happened. First, we need to make sure that the articles, the symposia, the theory cannot all be listed on a single sheet of paper, because many of us will have delved into the questions that have been asked today and the questions that remain to be asked and discussed.16 Second, we need to ask ourselves to alter our own scholarship to eliminate white privilege from it; to eliminate a notion that, when we talk of issues concerning gay and lesbian liberation, we are only talking about liberating white people from the heterosexism of our society. If we do what these panelists, moderator, and organizers ask of us, then we can really talk about liberation for the gay and lesbian community in a way that is inclusive while recognizing our differences as well as our similarities.


* Professor of Law and Associate Dean for Academic Affairs, California Western School of Law.

1 Professor of Law, University of Miami, Chair of AALS Section on Gay and Lesbian Legal Issues, and organizer of this panel.

2 See generally, Frank Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory and Politics of "Sexual Orientation," ___ Hastings L.J. ___, nn. 3-19 and text (1998)(forthcoming).

3 Barbara J. Cox, Alternative Families: Obtaining Traditional Family Benefits Through Litigation, Legislation and Collective Bargaining, 2 Wis. Women's L.J. 1 (1986)[hereinafter referred to as Alternative Families].

4 431 U.S. 494 (1977).

5 Cox, Alternative Families, supra note 3, at 17.

6 Cox, Choosing One's Family: Can the Legal System Address the Breadth of Women's Choice of Intimate Relationship?, VIII St. Louis U. Pub. L. Rev. 306 (1989)[hereinafter referred to as Choosing One's Family].

7 Id. at 307.

8 Id.

9 Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 Conn. L. Rev. 561, 585-602 (1997).

10 Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 4--------------------------------------- Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 Va. L. Rev. 1535 (1993).

11 Paula Ettelbrick, Since When Is Marriage a Path to Liberation?, in LESBIANS, GAY MEN AND THE LAW 401 (William B. Rubenstein ed., 1993); Paula L. Ettelbrick, Wedlock Alert: A Comment on Lesbian and Gay Family Recognition, 5 J.L. & Pol'y 107 (1996).

12 Ruthann Robson, To Market, To Market: Considering Class in the Context of Lesbian Legal Theories and Reforms, 5 S. Cal. Rev. L. & Women's Stud. 173, 182 (1995); Hutchinson, supra note 9, at 599 n. 153.

13 Cox, Choosing One's Family, supra note 6, at 310, indicating that family health insurance benefits for a working-class, lesbian family of 6 cost that family $2400 per year to replace benefits that would have been provided by one adult's employer if the employer had not restricted coverage to traditional families.

14 Valdes, supra note 2, at ___ (forthcoming)

15 Id.

16 Id. at n. 12, listing the following scholarship of this "internal racial critique." Hutchinson, supra note 9; Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay "Victories," 4 Law & Sexuality 83 (1994); Cynthia Petersen, Envisioning a Lesbian Equality Jurisprudence in LEGAL INVERSIONS: LESBIANS, GAY MEN AND THE POLITICS OF LAW 118 (Didi Herman & Carl Stychin eds., 1995); Isabelle R. Guning, Stories from Home: Tales from the Intersection of Race, Gender and Sexual Orientation, 5 So. Cal. L. Rev. Women's Stud. 25 (1995); Mary Eaton, Homosexual Unmodified: Speculation on Law's Discourse, Race and the Construction of Sexual Identity in LEGAL INVERSIONS, supra at 46; Eric Heinze, Gay and Poor, 38 How. L.J. 433 (1995); Ruthann Robson, supra note 12.