Abstract
Excerpted From: Elvia R. Arriola, Encuentro En El Ambiente De La Teoría: Latina Lesbians and Ruthann Robson's Lesbian Legal Theory, 8 New York City Law Review 519 (Fall 2005) (69 Footnotes) (Full Document)
Dear Ruthann, some of my essay is a public apology for having misunderstood your project in lesbian legal theory back in the early nineties.
Someday, historians of the critical legal theory movement of the late twentieth century will note the bold and courageous contributions made by Ruthann Robson when she first offered lesbian legal theory. I wish I had been more welcoming of her initial ideas, which she presented at a women and violence conference at the university where I began teaching law. I was barely starting out as a feminist legal theorist and now, looking back, see how hopelessly wedded I was to the feminist attack of masculinist liberal legalism in my own scholarly beginnings. It seemed easier to extend that critical gaze to the new lesbian legal theory than to see how far it leaped over all existing critical frameworks in its seemingly outrageous call to place the lesbian experience at the center of legal analysis. I would see in time that the paths opened up by lesbian legal theory would be as powerful and as controversial for legal theory as Adrienne Rich's essay, Compulsory Heterosexuality, which called for lesbian centering, had been for feminist thought.
But this essay is more than an apology and late acknowledgement of the promise of lesbian legal theory. It is a little bit of an explanation and hopefully an effort to go deeper into the possibilities for lesbian legal theory as it applies to the conditions of the Latina lesbians and lesbians of color I worried might be left out by Robson's work. Looking back at my early criticism, I now see an awkward effort to find a place for my experiences as a Latina lesbian. But I could not completely own the internal struggle that was going on within me as a working-class Chicana reading Robson's theories and metaphorically being asked to sit in a philosophy class so as to think aloud about our own existence, our places in history, culture, and legal thought.
Now I see that it was just too close for comfort. Cherríe Moraga wrote once of the piercing awareness she had when she first heard Ntosake Shange use the words that were at once familiar and painfully uncomfortable to a woman of color in a white dominant world. This awareness is an important aspect of what this essay will address: both the sources of that discomfort and the liberation from my initial fear of lesbian legal theory, as I came to recognize the opening it held out for interrogating my existence, and that of other Chicana lesbians.
Clearly reflected in my early criticisms of lesbian legal theory was a desire to make sure that whether labeled feminist, queer, gay, or lesbian, the new critical scholarship be sensitive to the complexity of les/gay/bi/tran (LGBT) existence. Yet, if I hadn't been so afraid to dig deeper, I might have seen that the absence of context I regularly found in white feminist writing wasn't necessarily in the new lesbian legal theory. Because upon a careful reading of Robson's ideas, one could find the invitation to explore all of the “possibilities” for lesbian legal theory. Taken literally, those words offer the possibilities for a rather nuanced, textured, contextual, and non-essentialist examination of lesbian existence, as it may be revealed in every aspect of its breadth and beauty. That would mean lesbian existence wherever and however it may appear, whether we like it or not. And that would have to include the lives, struggles and hope for Latina lesbians and other lesbians of color:
Somewhere between the fragmentation of the unrelentingly particular and the imperialism of the totalizing universal is a place where I can speak a language that might be lesbian legal theory. It is a place that allows the insistence upon the viability of a lesbian as a category and it is a place that realizes that lesbian does not mean a person who conforms to one specific ideology or specific bodily configurations and inscription. It is a place of unity and specificity, without privileging one or the other. To exercise that prerogative of such judgment is scary: almost everything in my life counsels against such an assumption of power and such an assumption of risk and responsibility.
But let me explain what I see as the fear-based approach I took to criticizing lesbian legal theory, for it has a story that will unfold in greater detail as I reconsider the possibilities for lesbian legal theory in the lives of Latina lesbians and lesbians of color. Fear? Yes, fear. For when I criticized lesbian legal theory with a feminist approach to the struggles of LGBT, I worked in an environment decidedly hostile to all forms of feminist/race critical theory. And the reality of that professional existence and context for my own explorations into critical scholarship had a dramatic effect on my potential for professional and personal growth. My own early ventures in critical legal scholarship often felt as if I were breaking unarticulated, yet strongly felt conventions in legal scholarship meant to shore up the foundations of the mainstream legal academy.
Meanwhile Robson had been embraced by an institution that to this day represents a bold counterpoint to that academy in its commitment to produce critical, progressive and socially conscious lawyers and teachers. With a bit of chagrin, I now see how my fear (and need for collegial acceptance) served as a context for some of the work I produced within the predominately white male (and heterosexist) environment in which I began teaching law. Now many years later, as I have re-read and reconsidered lesbian legal theory, I breathe an ahaa! I see the product of my early criticisms of lesbian legal theory as a mix of boldness and caution as a conservative institution's first woman of color on the tenure track, who had enough gumption to plunge the waters of critical thinking, but often came up gasping for air in a polluted and stifling environment.
I would come to appreciate the significance and my fear of lesbian legal theory when I finished healing from being hit by the “spiritual two by four,” which is what it was like to get only heat for the scholarship I produced in support of my first tenure candidacy. I look back and see a lesbian of color surviving as best as she could, engaging in a fiery battle alone, and making the decision eventually to resign from the tenure track rather than fight a losing battle. I had to come to terms with the cost of visibility, of a lesbian of color standing outside of the closet when she cannot escape the visibility of her race, class, or ethnicity. I had to embrace the journey and the process that led me as an Out Dyke Chicana Feminist to become the first female law professor of color at a historically white male-dominated institution and clueless of the significance of that placement. It is also possible that I was sufficiently “[a]lienated from [my] mother culture” and from other progressive colleagues in legal academia. I felt as if I was in a desert without a survival kit, surrounded by snake-like colleagues who rattled and hissed loudly with disapproval, ready to bite my nalgas.
I find it ironic now, that although my Texas students were reading Gloria Anzaldúa and being challenged to get out of their linear way of approaching life and the law, that I myself was doing with Anzaldúa what I'd done with Robson--either not read her carefully, or not appreciate the personal relevance in her bold and courageous message. Had I more thoroughly examined the powerhouse of critical thinking in Anzaldúa's collection Borderlands/La Frontera, I would have run into her meditation on assimilationist terrorism and found a metaphor for what I regularly encountered among my Anglo-Texan colleagues. I was only vaguely aware that I was in an unsafe world, living out one small example of the brown/lesbian woman's “history of resistance.” Instead, I wandered about for a few years silently begrudging the only recipe for success I'd been handed: to act like everyone else, which I didn't do; to water down my feminism, which I wouldn't do; to not be so out as a lesbian, which I simply could not do--or else be out of a job. As Anzaldúa wrote:
Chicanos and other people of color suffer economically for not acculturating. This voluntary (yet forced) alienation makes for psychological conflict, a kind of dual identity--we don't identify with the Anglo-American cultural values and we don't totally identify with the Mexican cultural values. We are a synergy of two cultures with various degrees of Mexicanness or Angloness. I have so internalized the borderland conflict that sometimes I feel like one cancels out the other and we are zero, nothing no one. A veces no soy nada ni nadie. Pero hasta cuando no lo soy, lo soy.
And so my essay today is not just an apology, or an explanation for my own need to reconsider lesbian legal theory. It is also a small tribute to the life and works of the recently deceased Gloria Anzaldúa, the brilliant and brutally honest Latina lesbian poet and cultural theorist, whose works, together with Ruthann Robson's, have provided the essence of healing balms for the tired feet of this penitent pilgrim. This is why the title of my essay uses the Spanish term, “encuentro,” which translates into “meeting.” This essay is a search for a meeting between the ideas of two lesbian theorists--Robson and Anzaldúa. But it has a second meaning taken from my contact with Mexican workers struggling for justice in the maquiladoras at the border. For these workers, having encuentros or solidarity gatherings with allies to strategize, symbolize empowerment against the mammoth power of the global corporations who employ them and whose policies account for the increasing divisions between the world's rich and poor. Symposia of this kind, in which we all celebrate the radicalism and beauty of thinkers like Anzaldúa and Robson, strike me as a kind of encuentro with the possibilities for our empowerment as queer folk, lesbians, and people of color.
In preparing for this symposium, I re-examined some of Robson's work on lesbian legal theory and the work of Latina lesbian theorists, but especially Anzaldúa, whose concept of mestiza consciousness and the metaphor of the “borderlands” remains one of the most powerful analytic models for examining multifaceted oppression. As she was being publicly mourned by institutions that are a living legacy of her ideas, I was rereading both writers and thinking about the theoretical power of these two lesbian theorists--Robson, the white lesbian separatist thinker and writer, and Anzaldúa, the Chicana lesbian poet and essayist whose life and genius defied the derogatory stereotypes held by Anglos about the Tejana/os (Texans of Mexican descent) who grow up in the impoverished region of South Texas known as the Valley. Anzaldúa's courageous writings have forced me to shed any self-doubts of the need for a Latina lesbian feminist critical perspective in the law, and also to understand my initial reluctance to connect to lesbian legal theory. I can now see it as a “psychological canceling out” produced not just by the system of approval I faced from a few rabid anti-feminists and anti-critical-race theorists, but also from my mere presence as an Out Dyke Chicana Feminist in an institution burdened with a history of exclusionary attitudes and practices in the Southwest.
Fabricando Teorías: Locating Lesbian Legal Theory in a Mestiza Consciousness
Internal strife results in insecurity and indecisiveness. The mestiza's dual or multiple personality is plagued by psychic restlessness.
Gloria Anzaldúa's theoretical framework for Latina lesbians requires an appreciation of the poetic vision she offered in her collected works titled, Borderlands/La Frontera. In these essays and poems, Anzaldúa introduces the elements of history and culture embodied in the concept of mestizaje--hybridism--and of a new mestiza consciousness. Each essay or poem provides an unrelenting confrontation with the brutality of racism, sexism, homophobia, whether in the legacy of European Conquest or the raping of the land and people by the encroachment of Anglocentric power in the Southwest. Because it is a historical examination of the mestiza identity, la Chicana, it is a confrontation with the history riddled as much with mythic legend and story about our indigenous roots as with hard fact. Thus lyrical analysis also pours out the facts of pura sangre, a bloody reality of life for Tejano/as at the hands of white Texan political heterosexual power, along with the brutal reality of seeing how one's deepest ways of knowing and being embody the hybrid cultures, white and indigenous, that reach into periods long before there even was a Texas. Anzaldúa's methodology is one of holding the mirror of self-analysis, to expose the truth, the pain, the grief, and the darkness in narratives and poetry that remind me of the brutal honesty of a Frida Kahlo painting.
The self-analysis is like a questioning--where in my history can I find the essence of who I am as a brown, female, queer woman growing up poor in the Texas valley? What are the conditions of the Mexican woman's existence, her strengths, her weaknesses, her desires, her sources of rejection from within and without, and her survival? As I reread Anzaldúa, I speculate on the period of her coming out and coming to terms with her Latina lesbian existence. When Anzaldúa was writing, in the late seventies and early eighties, few venues existed for men and women to come out that didn't involve the dark spaces of bars and clubs. For many of us during the eighties, “coming out” still meant going to the bars and it meant struggles for acceptance by our families and communities. My memories of that period of my own coming out include seeing the evidence not only of racial and ethnic segregation among bar lesbians, but rather distinct patterns of role playing among Latina lesbians that I personally felt uncomfortable with. Racial and ethnic diversity among lesbians was seen more often at women and the law conferences, i.e., feminist settings or some other higher education environment. The seventies feminist movement opened spaces for a lesbianism freed of the closeted-ness and role playing of pre-Stonewall America. However, closeted-ness and role playing appeared to characterize the lives of black and Latina lesbians long after white feminist lesbians were defining their sexuality and identities freed of the butch/femme roles that defined the community of the forties, fifties, and sixties. But it was also this very context in which white feminists failed to acknowledge the diversity of women, by including either lesbians or women of color that provided the catalyst for the powerful lesbian of color voice found in such collections as This Bridge Called My Back.
These realities may have grounded some of the inquiry by Anzaldúa and others like Moraga, who explored the good and the bad of being born Mexican and lesbian, knowing that white/European blood runs through our veins, understanding how we internalize its values and simultaneously reject them in defense of our culture; the same that we know painfully oppresses its women by teaching subservience to men and further instills en la loca, marimacha, lesbiana, the dread of coming out to one's family and community for fear of being rejected and left without a home at all. In the white world, we are incomplete and in the Mexican world, we are a defiance of all that is precious to the Mexican cultural values struggling for survival under the thumb of Anglo dominance and the pressure of assimilation.
The healing of these kinds of splits must happen, according to Anzaldúa, with a re-defining of that history toward a healed, “new” mestiza consciousness. That new perspective would see the ways in which our lives reflect the historic warring of cultures --la India y el Conquistador, the dark brown and the white, acceptance and rejection of powerful, enslaving Christians who rejected the nakedness of Indian identity, who replaced any hint of shame-free sexuality with rigid gender norms rooted in heterosexist patriarchy and Christian hatred for non-procreative pleasurable sex and/or variant sexuality.
The value of the history lesson is a place for locating the roots of our own un/conscious resistance to the reality of lesbianism and lesbian existence. What does resistance look like? We act on our desire. We then deny that we have it. Or we stick our head out like a turtle and then run back into the hard shell of community, closeted-ness, and comfort in the denial of who and what we are. The resistance passages in Anzaldúa's writings bring back the memories of so many, many times I pushed back the feelings of my desire to know a woman's body. As a traditionally educated Catholic, merely thinking about same-sex desire felt like the worst of sins, barring murder, in the hierarchy of sinfulness. The messages of the culture were too strong, telling me that the thought, the idea, the desire were all wrong, bad, a violation of the gender-norming I had learned from a young age. These elements are the reason for what Anzaldúa called the “constant internal struggle of borders,” or the unconscious need to “cancel out” our very own existence. For the Latina lesbian in particular the need to cancel out, to deny one's lesbian sexuality is particularly strong. Robson would appreciate this as well in her own explorations of lesbian legal theory as she problematized it and drew support from Anzaldúa: “es un problema.” Anzaldúa wrote further, “[f]or the lesbian of color, the ultimate rebellion she can make against her native culture is through her sexual behavior.”
When I re-read these words, I understood how some of my own unconscious wars might have formed a part of my negative reaction to lesbian legal theory. On the one hand, I could be grateful to Robson for taking on the feminist essentialists; on the other, I was so uncomfortable--yet not sure why. I was too preoccupied with sorting out the feelings of coming out publicly even if in settings that would never reach my beloved Abuelita or Mom whom, given their humble backgrounds, were unlikely to pick up and read one of my law review articles or attend some conference where I might talk about gender and queer law. In the years following my divorce, my family would hear nothing about new men in my life and at best got details about socializing and traveling with girlfriends. I look back on that period and see myself desperate to keep my family connections while they struggled to accept the unspoken, but obvious reality of my new exclusively female intimate private life.
The power of Anzaldúa's analysis is in not only identifying the source and location of one's internal wars as a brown, lesbian queer, but to transcend the revelation of one's learned verguenza and pena (shame and embarrassment) into a blending of the warring parts for a new identity--the new mestiza. This new mestiza might choose either to engage with the dominant culture and stand on “both shores” seeing through both “the serpent and eagle eyes,” or decide completely to disengage from the dominant culture.
The Idea of Latina Lesbian Legal Theory
It has been a long and personal journey to this place of recognition. I wanted to express my roots even as I was disconnected from them. I realized that although the subversion of my identity as a lesbian woman of color certainly had contributions from external forces, it also had some of my own cooperation. Only now, healed from the split that “makes for loquería, the crazies,” am I somewhat poised for asking whether it is possible to theorize a Latina lesbian legal theory. What if Gloria Anzaldúa had been the one with the opportunity to merge her theories of a mestiza consciousness with lesbian legal theory? What would it mean to confront the hybrid Latina lesbian identity in the context of legal doctrine, history, and systems of justice? Is it possible to locate the Latina lesbian in a legal context, a place where the merging of Latina/o culture and taboo, race, ethnicity, language, and sexuality or gender finds expression in case law or in the legal system? What can it mean to theories of justice to incorporate the realities of brown and lesbian queer? I have suggested that if there could be a Latina lesbian legal theory, it would have three elements to begin: history, honesty, and hope.
A Latina Lesbian History
We need to continue the archeological digs begun by Anzaldúa into the roots of our learned need to cancel ourselves out. Her diggings for Latina lesbians at once blend and depart from some of the earliest radical efforts to find the historical basis for the “lesbian image.” One of the best books I have read is The Lost Chronicles of Terra Firma, a fictional work, speculating on the relations between European conquerors and indigenous South Americans, from the standpoint of its impact on the women of both continents. The work beautifully centers the different approaches to sexuality and sexual expression among the upper-class women that were brought as companions to military explorers and the women who were taken as lovers as part of their exploits. The open nakedness and self-acceptance of the indigenous people is portrayed with a poignancy of lost innocence, ravaged by a clothed, rigid mandate for covered female bodies, each body destined for specific use and abuse by los Conquistadores.
I would hope that some day we could continue to speculate about what happened to the non-homophobic attitudes that I suspect existed among many indigenous cultures in the Americas before contact with the Spaniards, Portuguese, Dutch, French, or English. Through this inquiry, we may trace how contemporary attitudes toward homosexuality or lesbianism betray the warring of cultural values. For example, I find it fascinating from the perspective of comparative law that some Latino countries never had the legal history of anti-sodomy statutes, yet that has not prevented the institutionalized homophobia that invites wrath and violence upon those who try to fight for the rights of LGBTs.
A Latina lesbian legal theory might try to analyze how conflicting cultural attitudes operate in the possibilities of lesbian identity or of lesbianism whether within dominant Anglo society and its systems of law or internationally. It might help us understand how migrating anti-lesbian attitudes play out within new immigrant communities that are already struggling with the gendered transitions that accompany relocation to another country. It certainly would have to address the call to the queer scholars of color to create a theory that is sensitive to the “borderlands,” to the multidimensionality of our lives, which means our U.S. lives as well as our lesbian existence globally. Obviously, Latina lesbian existence and lesbianism cannot be viewed strictly from the U.S. experience especially given the migratory patterns of so many Latino groups in the U.S. So while attitudes and the law improve domestically, there is no guarantee that such relaxed attitudes will be exported to other countries where being out invites not just discrimination, but violent forms of harassment, persecution, and even death. I see here the possibilities for personal narratives validating the existence of the people who survive as they transgress the rigid gender and sexuality norms of their cultures, sometimes defiantly coming out, sometimes living closeted lives, sometimes wanting to come out, but prevented from doing so because the penalties from community and family rejection appear stronger than the lack of any law that prohibits discrimination on the basis of sexual orientation.
The Honesty
If we are to grapple with a Latina lesbian legal theory then we must also confront what is still uncomfortable about our existence, our cultures and our attitudes--including the ignorance and denial of our own existence and the perpetuation of stereotypes that keep us closeted, disempowered, and vulnerable. There is the homophobia that we must fight in the culture at large, but there is the homophobia that has the dual meaning Anzaldúa explains with a story of teaching a class in a New England college and having a discussion with students about the meaning of “homophobia,” who believed it meant “fear of going home.” She would later reflect on the ironic truth embedded in that naïve understanding of lesbian invisibility in the culture produced by the unconscious resistance “that if we reveal this unacceptable aspect of the self our mother/culture/race will totally reject us.” Just as lesbian invisibility is virtually the norm in American case law and jurisprudence as Robson has argued, Latina lesbian invisibility is likely to mirror the cultural attitudes or stereotypes within a particular Latina/o group because of its being taboo, erotic, pornographic, immoral, or just another “American export.”
The Hope
And we have to ask this honest question, why would we want to do this work? Robson provides an important criterion for works that consider lesbianism within the context of the law--will it contribute “toward the survival of lesbians, both as individuals and as identity” ? A member of this symposium has introduced a powerful reason why. The case of death row inmate Bernina Mata is a picture of the oppression made possible by the combination of racism, classism, and homophobia. When prosecutors are licensed by a homophobic culture to warp justice with racist homophobia, it hurts our cultures and it hurts our identities as lesbians of color. In this post-election era of public gay bashing, we need to marshal even more our strengths of analysis so that we engender hope for the Latina lesbian whose legal problem may reflect her disempowerment because of race, ethnicity, gender, class, or sexuality, but whose re-victimization by the legal culture is a reflection of her abandonment by the LGBT community that too easily splinters into factions along the categories of race and class.
Thus a venturing into Latina lesbian legal theorizing should be a documentation and a celebration, but it should also be an avenue for hope for all Latina lesbians. While Berta Hernandez-Truyol's work on Latina invisibility and her (and my) brief examination of anti-lesbian attitudes are an important aspect of the gender question in LatCrit theory, I would hope for a more specific analysis of anti-lesbian Latina/o cultural attitudes and their presence in the law or legal context.
Locating Anti-Lesbianism in Latina/o Culture Attitudes
In a constant state of mental nepantilism, an Aztec word meaning torn between ways, La Mestiza is a product of the transfer of the cultural and spiritual values of one group to another. . . . Like all people we perceive the version of reality that our culture communicates. Like others having or living in more than one culture, we get multiple, often opposing messages.
In this section, I will attempt to locate in the legal experience the illustration of Latina/o culture and attitudes that reflect the anti-lesbian messages of Conquest. Now, what I offer in the following passage is pure speculation on my own gut feeling as a Latina lesbian who struggled against her existence for many, many years and who managed, not easily, to maintain connections with her family only after literally hundreds of hours (and dollars) spent in therapy and support groups. These are, inter alia: forget that it ever happened, if you discover it, suppress it, first by rule, then by turning the oppression into penalty (sinfulness), then by metamorphosis--the oppression is transformed from rule into tradition, convention, the truth and finally transform the desire for self-acceptance and community into fulfillment of the convention, i.e., the Big Lie Becomes the Big and Only Truth: there are no lesbians, there never have been lesbians, even the indigenous hated lesbianism, lesbians exemplify the worst of what a woman is or could be, lesbians are make-believe men and what decent Latina would want to be like a man? This is colloquially identified by Hernandez-Truyol as a saying among Cubans as they observe their daughters' developing sexuality: mejor puta que pata--better whore than dyke, and finally, if I ever catch you trying to be lesbian you will a) go to hell; b) bring shame on our family; and c) be kicked out of the family and community to save everyone else's soul and the reputation of the community.
Narrative of a Remembered Dream
I am living in New York City. I am in my first lesbian relationship. It is not going well. I am acting like an adolescent who is discovering sexual feelings and cannot stay faithful to my lover who has been out since she was nineteen and wants to settle down. I am hurting her. I start therapy. Mother and Abuelita (grandma) emerge in the first discussions in their overarching matriarchal power--their words utter the messages of Catholicism, something they do well as each can always be found with rosaries in their pockets, silently, always, praying, praying for the salvation of their errant children and grandchildren. And I am one of them. I have left the fold of Catholicism. I have defied the rules of Mexican closeness of family by leaving Southern California to start out my legal career. I have defied the gender rules of the culture that said I should be married and in my early thirties I should have several children and a husband I dutifully clean and cook for and obey. Instead I am on my own, three thousands miles away and having sex, and enjoying it thoroughly, with women. As many as I can get ahold of. And the therapy begins to stir up dreams. Dreams of being in my bedroom, and the mother and the grandmother in a patio off the bedroom, very nearby as in a typical Mexican home with an indoor garden. As I hold my lover, my grandmother and mother sit on a garden seat praying and crying for me; and when I awake I am crying and depressed and very angry at my lover for demanding monogamy.
Culturally specific Latino attitudes about lesbian existence or about lesbianism can affect the presentation of evidence in a case, but cultural attitudes might also serve as a hidden aspect of the factual background to a case. This cultural specificity may offer a way of understanding how a party's social group identity (whether racial, ethnic, religious, class, etc.) sees lesbianism and may use it or abuse it. I want to make clear that I do not think the cultural specificity I am talking about here would necessarily change the outcome of reported cases, in particular cases involving violent crimes. Also, in the criminal area, it would be somewhat problematic to suggest that a culturally specific understanding of how anti-lesbianism appeared in a case should support claims for mitigation. Initially, I am more comfortable with asking whether we can place cultural specificity into the experience of lesbian identity or the appearance of anti-lesbianism. The latter may be especially useful in understanding the role that anti-lesbianism may play in the reinforcement of Latina gender roles. I concede the possibility that Latina lesbians per se may rarely show up in cases and that cultural attitudes may play no part at all in the presence of a Latina lesbian in the U.S. legal system. I was not surprised to get few results from my web search for cases where the terms lesbian or lesbianism were associated with Mexican, Latina, Puerto Rican, Cuban, Honduran, etc. I finally came up with two criminal cases and a lesbian custody case that offered some frameworks I will describe initially as cultural defense and cultural cop out.
a) Anti-Lesbianism and the Macho Cultural Defense
Latina lesbian theorist Carla Trujillo has argued that homophobia, an irrational fear of lesbians and gays, accounts not only for the heterosexist response to Chicana lesbians, but also poses a greater threat to the Chicano community because of its potential for disrupting male dominance and raising awareness among women of their need for greater independence. Therefore, to theorize the Latina lesbian existence, one must also analyze its relationship to Latino male supremacy and the hetero-patriarchal expressions designed to police gender that we label machismo. The less a woman conforms to the rules or the gendered role of La Buena Mujer (A Good Woman), the closer she moves in the direction of the outcast identity--lesbian. The range of controlling attitudes and behaviors vary and can take culturally specific forms that are clearly unrecognized in American legal discourse. It is not too difficult to find criminal cases with Latino defendants whose violent machismo is an illustration of Trujillo's point. The idea here is that the expression of the conduct may vary, but the goal of the controlling behavior is to reinforce male supremacy, female subordination or submissiveness, and to police the elements of gender conformity in many Latino groups--piety, self-abnegation, submissiveness and acquiescence to male power.
An example is found in the case of People v. Lopez where the defendant in a domestic violence and sexual abuse conviction had beaten his wife repeatedly over a ten year marriage and also sexually abused his stepdaughter. The abuse had become more intense when Alicia sought independence from Lopez by getting a credit card in her name. Certainly the violence offered an explanation for her refusing his sexual advances, but sometimes the attempted marital rape was accompanied by knives and verbal abuse that she was rejecting him sexually because she was a lesbian who deserved to have her clitoris cut off. Of course, one has to be very careful about the characterization of cultural attitudes that are Latina/o and their intersection with Anglo attitudes in society and the law. The homosexual panic defense (aka the provocation defense) is a perfect illustration of what Robson refers to as the inherent violence in the law, in producing violence while serving as arbitrator of the violent interactions between individuals. The case of California v. Gutierrez illustrates a cultural modification of this defense. The expert witness in this murder case testified that the defendant's outrage and violence toward his soon-to-be ex-wife was explained by the Mexican-American male's attitudes toward divorce and to the rumors that his separated wife had taken up with a woman. If accepted, the testimony would introduce a kind of mitigation based on the introduction of a cultural reality describing “lesbianism as particularly abhorrent” to Mexicans. On the one hand, one wants to applaud the recognition of cultural analysis; on the other, one could worry that such descriptions would turn into overgeneralizations that explain but do not confront the gender normativity and sexism that discourage open lesbian existence among Latina/os.
b) Cultural Cop Out in an Interracial Lesbian Divorce?
I found a different and probably very strained angle to the Latina/o cultural analysis in a lesbian custody case, Maria B. v. Superior Court, involving an appeal from a child support order imposed on the ex-partner in an interracial lesbian relationship. I speculated on the ethnic identity of the women in the relationship as I read further into the facts. Elisa and Emily had exchanged rings in a ceremony. Elisa publicized her love for Emily with a tattooed heart on her arm bearing Emily's name and por vida next to it (in Spanish “for life”). Each encouraged the other to have a child through artificial insemination. The result of the case is depressing. Encouraged by Elisa, Emily became pregnant through artificial insemination and had twins while Elisa had one child. Several years later they broke up and Emily wanted child support from Elisa for the twins. It was evident that Elisa and Emily had been a family. Elisa had put the kids on her insurance plan and everything about their behavior suggested a conscious decision to act as family. Elisa, who allegedly made over $10,000 per month, continued to support Emily and the two children for about a year and half until she could no longer deal with the tensions in her interactions with Emily. Since Emily was on public assistance, the state pursued child support payments from Elisa. In an unfortunate example of the pattern of lesbians using the law to shirk responsibility, the attorney defending Emily argued that she was not a “father” under California's Uniform Parentage Act. In the alternative, she argued that the lack of any agreement between Emily and Elisa about how the children would be supported in the event of a breakup, precluded any reliance or estoppel claim upon which Emily could rely for imposing a child support obligation on Elisa as their de facto parent.
As I read the appellate court's decision, which overturned the child support order granted by the lower court, the Mexicana in me was really upset with Elisa. Everything about the facts suggested the creation of familia with its expectation of care and support for children. And then I had another thought about an explanation for the result that might be about culture and might not. The interracial relationship by other Latinas, especially politicized Latina lesbians, has been described as a cop out, a betrayal to one's culture, assimilation and giving in to the power of the dominant culture. However, other Latina lesbians have argued that lesbian love, dark and light, can make familia-centered values the color of café con leche. If love knows no colors, then the rules of love and family should not be thrown out just because it is a mixed love or a mixing of cultures.
I have always wanted to think that we lesbians and our courage to cross racial/ethnic/cultural borders in our intimate lives should engender a unique strength to endure the challenges of racism, classism, etc., within our relationships and the pressures from without. The circles I have moved in, professionals and educated lesbians have had a greater collection of interracial relationships. But when I move out to connections with lesbians who are not professionals, say among my sober friends, I find fewer and fewer interracial relationships. What I am trying to say is that cultural differences in a relationship bring unique stresses to a relationship, requiring special strengths. Who knows what level of strength and what level of support Emily and Elisa had for enduring the stresses of change in a relationship. For some reason it did not work out. Did Emily's family accept Elisa? Did Elisa's family welcome Emily as a white lesbian? Was Elisa's biological family just more comfortable with Elisa's having a child or children when the white lesbian lover was out of the picture? Did Elisa make the final break with Emily in order to regain connection with her own family? These are the kinds of questions that ran through my mind as I reflected on their breakup, as I could not help but reflect on my own interracial relationship and the unique effort my partner has made to speak Spanish and to understand my culture, which has made us so welcome as a couple in the home of my relatives. If Latina/o culture, so proud of its commitment to family unity and strength, would have anything to say here about what Elisa has done to Emily's children, it would judge her harshly for walking away from the kids, for not asking for help from the family to help the children she had mothered with Emily.
On the other hand, it may have a different explanation if the interracial relationship was a source of alienation for Elisa from her family. Unfortunately, I could imagine well that Elisa had made the choice--better to reject Emily and the kids than to lose the possibility of having any comunidad or familia at all and any of the support she might need in raising a child without a partner. What is tragic about this case is that it illustrates the point made by Robson quite often--that too many lesbians want the law to acknowledge the reality of our lives and our relationships and families, but then want to exploit the non-recognition of them in the law along with convenient homophobic attitudes held by judges to avoid taking responsibility.
Holding the Mirror and Letting Go
This time you must let go, Meet the dragon's open face And let the terror swallow you.
I started this essay by saying that I have evolved in my understanding of Robson's lesbian legal theory, that I did that first by experiencing tremendous pain around the politics that surrounded my bid for permanent employment at the major southwestern university that first hired me as a law professor. In that fiery engagement, I had to find and love all of the parts of me. I had to understand that my difficulties were not separable into convenient categories of just race, or sexism, or anti-lesbianism, or being Mexican and from a working-class background. It was all of those parts and it was essential to my knowledge of discrimination to hold, embrace and proudly proclaim my brown, working-class, lesbian identity.
Now looking back at my standing at the doors of the Texas flagship institution in 1991, I get the image of a pathetic Indian girl being fed to the mouth of an angry volcano. Someone had to be sacrificed for a better cause. Sometimes Patricia Williams's concept of “spirit murder” comes to mind. Certainly there was a level of disconnection. No other professors of color. Tired. Trying to do it alone. No real guidance for the intensity of the academic politics that were swallowing me up. It was just easier to resign. The next Latina tenure candidate in line would be heterosexual, married, had an Anglo last name and wouldn't write anything disturbing to the senses of the homophobic anti-feminist. Her tenure application was still not easy but it wasn't seriously challenged.
But now allow me to fast-forward to 1995 as I explain a bit more of my coming to appreciate lesbian legal theory and why I've wanted today to explore a Latina lesbian legal theory. By 1995-96, I had resigned from the tenure track. Very personal family reasons motivated me to stay on as a senior lecturer and to heal by just continuing to write and to become more politically active in racial politics. That was easy because I was sitting in the very institution that gave us Hopwood v. Texas, and there were students asking for support in a campaign to oppose the death of affirmative action. I'd also just met the Cubano queer, Frank Valdes, and accepted his invitation to speak at the first annual Latina/Latino Critical Legal Theory conference. It is in the midst of that experience that I began to realize that I am en las fronteras that Gloria Anzaldúa spoke of--the place where the borderland conflict is so strong that the different parts of me struggle against the others--the lesbian academic, the working-class Chicana, the feminist privileged writer, the well-salaried lecturer even in a demoted status at an upper-tier school, the Mexicana who remembers the struggle of getting through law school on loans and typing papers for other students to meet expenses. The former married heterosexual life with an Anglo husband and un-feminist Anglo last name, the change back to Rosales Arriola to reclaim the cultural difference that had factored into the breakdown of our relationship. For two days at the conference surrounded by women and men who remind me of familia, I am squirmy, jumpy and asking myself quietly what the hell am I doing at this conference? These people, mi gente, they'll never accept me as the Out Lesbiana Marimacha Pata Feminista. Who am I kidding? But I was wrong then too.
No doubt the queering of LatCrit offered an intellectual path out of the wilderness of my self-doubt over writing as a feminist Latina and lesbian. This is where all of the pieces began to fall into place. The Mexican in me needed to be there in my work along with my being a lesbian feminist. Like Natashia López's poem, I couldn't just be Dyke and couldn't just be Chicana, and like the relentless Anzaldúa, I needed a mestiza consciousness of being brown, female, lesbian, feminist and from a working-class background. From that reawakening I reconnected with Elvia Rosales Arriola, who was educated in a religious convent in Mexico in the 1960s, whose first crush was on the Mexican nun teacher and dormitory mother with skin the color of caramelo and wispy, fine reddish hair. And who was warned about the dangers of sexuality through coded language and strong hints of the necessary boundaries between girls who are far away from their familias and must not search for comfort at night in the bed of the next lonely girl just two feet away from her. Elvia, who remembered how desire was confined to permissible forms of girl-girl affection and bonding in prayer groups, Marian societies and discussions about the qualities of future husbands. And the Elvia who remembered that when the nuns discovered some incidents of lesbianism among their residents they simply shut down the residency program for the next two years rather than try to address any aspect of sexuality in a young Mexican woman's education. And how well her youthful desire for acceptance saw that action as a resounding NO! to the possibility of acknowledging her own sense of desire for bodily intimacy, love and spiritual connection with other women.
When I was a little girl, one of my caretakers named Lupe, from the tiny village of Jala, which is nestled at the foot of a live volcano in the state of Nayarit, had some very morbid bedtime stories for children who would not go to sleep. The Indians of that area had undoubtedly seen the days of the volcano opening up and literally eating up entire villages of adobe huts. So my memories of bedtime stories are of broken dolls that might come to life because the power of my misconduct might have opened up the earth and would either eat me up or it would unleash a devilish spirit who would take over the body of my dolls. I now look back and metaphorically picture myself as a little brown clay statuette picking herself up after the fiery engagement with the white Texan males, leaving the large Southwestern university a bit singed and patched up, but now breathing the spirit of a devilish marimacha professor. The next step would be to heal the neglected part of my Latinaness by thinking that I might write from a Latina critical legal perspective about the injustices for Latinas and Latinos that I now observed and felt more intensely.
Before long, I was looking at the Southwestern border with new eyes and a desire to explore the history of my roots and my culture. And that is where I still am today. Piecing together a mestiza consciousness that can include not only the stories of oppression, but also the stories of liberation from the internal attitudes of Christianizing domination in the lives of proud and gutsy Latina lesbians. Marimachas who embrace the beauty of our cultures while rejecting the messages of shame, sin and self-hatred for our sexuality passed on as ley, doctrina, tradición, or modos de la buena mujer Cristiana.
Since I came out, I have moved in a number of circles with people who worked with Gloria Anzaldúa or who knew her. I only knew her through her writings. Thus, I was never able to say to her --gracias --thank you for your courageous writings, for your gift to my existence as a Latina and as a lesbian. However, I do know and get to thank another person for her courageous and beautiful analysis of lesbian existence and her validation of my existence with specific frameworks for tackling the presence and the invisibility of Latina lesbians. Thank you Ruthann Robson, or as it is said in my culture, Mil Gracias.
Elvia R. Arriola is an Associate Professor of Law at Northern Illinois University College of Law, where she teaches Gender and the Law, Constitutional Law, Civil Rights Litigation, and a seminar course titled “Women, Law, and the Global Economy.”
