Obligations at the Gay Bar William B
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Hastings Law Journal Volume 48 | Issue 6 Article 3 1-1997 In Communities Begin Responsibilities: Obligations at the Gay Bar William B. Rubenstein Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation William B. Rubenstein, In Communities Begin Responsibilities: Obligations at the Gay Bar, 48 Hastings L.J. 1101 (1997). Available at: https://repository.uchastings.edu/hastings_law_journal/vol48/iss6/3 This Introduction is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Essays In Communities Begin Responsibilities: Obligations at the Gay Bar by WILLIAM B. RUBENSTEIN David Wilkins asks: [W]hat difference will it make to the long term struggle to end the legal,. economic and political subjugation of blacks in the United States that a substantial number of the most talented and best educated black lawyers are likely to spend some or all of their careers in corporate law prac- tice?1 David Wilkins answers: It depends. Wilkins argues that black cor- porate attorneys have the potential to contribute to the eradication of ra- cial subjugation, but that this potential will be fulfilled only if two pre- conditions are met. First, black attorneys must "recognize that they have moral obligations running to the black community"; Wilkins calls this the "obligation thesis." 2 Second, law schools must assist black law students to "develop the critical skills and obtain the empirical knowledge that they will need to define the scope of this race-based obligation and to reach coherent and morally defensible judgments about how this duty should be incorporated into their lives as corporate lawyers." 3 * Acting Professor, UCLA School of Law. This Essay began as remarks given as the introduction to the Hastings Law JournalSymposium on March 29, 1997. At the time, I was a visiting professor at Stanford Law School, which I thank for its support. I am also grateful to the UCLA School of Law, under whose auspices my remarks were turned into this Essay, and particularly for conversations with, and comments that I received on an earlier draft from, Richard Abel, Alison G. Anderson, Devon Carbado, David Chambers, Mitu Gulati, Janet Hal- ley, Nan Hunter, Arthur Leonard, Martha Minow, Anne Simon, and David Wilkins. 1. David B. Wilkins, Two Paths To The Mountaintop? The Role of Legal Educaton in Shaping The Values ofBlack CorporateLawyers, 45 STAN. L. REv. 1981, 1983 (1993). 2. Id. at 1984. 3. Id. [1101] HASTINGS LAW JOURNAL [Vol. 48 I would like to introduce this audience-one composed primarily of lesbian, gay, and bisexual attorneys and those interested in queer law-to Wilkins' obligation thesis (for those unfamiliar with it) and to begin (in the limited time that I have) a preliminary exploration of the application of this thesis to the gay bar. Thus, I ask: what difference will it make to the long-term struggle to end the legal, economic and political subjuga- tion of lesbians, gay men, and bisexuals in the United States that a sub- stantial number of the most talented and best educated gay lawyers-fe- male and male, white and people of color-are likely to spend some or all of their careers in corporate law practice? My preliminary answer, like Wilkins', is: It depends. I will argue that if lesbian, gay, and bisexual corporate attorneys are to become agents of social change, three factors unique to these communities must coalesce: First, the lesbian/gay community generally, and the gay bar specifically, must attend more self-consciously than it has to date to the concept of intra-community "responsibilities"; second, particular obliga- tions of lesbian/gay corporate attorneys must be identifiable and identi- fied, and, most specifically, "coming out" must be seen as neither suffi- cient nor, perhaps, always necessary to social change; and finally, queer communities must develop more sophisticated means for reproducing in- tra-community obligations inter-generationally. My Essay will proceed in three major parts. In Part I, I will per- form the function I promised the Hastings Law Journal I would-I will assess the changes in lesbian/gay law that have occurred in the eighteen years since the Law Journal last held a symposium on this subject. In Part II, before turning to a consideration of the obligations of "lesbian, gay, and bisexual attorneys," I pause to reflect on a prior question-who are these people? One of the limitations of speaking of the gay bar is that there does not yet exist a sufficient description of the history, traditions, and institutions of such an entity, much less a careful struggle with the definitional question. Thus, in Part II, I sketch a brief history of the gay bar and initiate a discussion of this question: What does it mean to be a "lesbian, gay or bisexual lawyer"?4 Finally, in Part III, I will turn to the obligation thesis. There I will describe Wilkins' thesis about black cor- 4. I am here purposefully echoing Sanford Levinson's question, "What does it mean to be a 'Jewish lawyer'?" See Sanford Levinson, Identifying the Jewish Lawyer: Reflections on the Construction of ProfessionalIdentity, 14 CARDOZo L. REv. 1577, 1583 (1993). August 19971 IN COMMUNITIES BEGIN RESPONSIBILITIES 1103 porate attorneys, consider its application to lesbian, gay, and bisexual attorneys, and offer preliminary responses to some anticipated criticism.' In undertaking this consideration, I have been significantly motivated by two factors. First, when I practiced law at the ACLU, I came in contact with attorneys in corporate practice who devoted significant ener- gies to lesbian, gay, and bisexual rights and liberation. Their contribu- tions, while enormously important in the fight against legal and social homophobia, are often underacknowledged and thus do not serve as the models that they should for encouraging more of such activity.' A sec- 5. A set of anticipated criticisms that I want to address at the outset concerns the impli- cations of my borrowing Wilkins' thesis about black attorneys. First, it is important to bear in mind the overlap of the subjects of each of our explorations. A significant minority of Wilkins' subjects may also identify as lesbian, gay, and bisexual, while a significant percentage of les- bian, gay, and bisexual attorneys are people of color. (These overlaps are themselves merely subsets of the many identity categories that constitute the subjects of our discussions-black women in corporate law, lesbians of color at law firms, Jewish gay men in traditionally WASP environments, etc.) Wilkins develops his obligation thesis with a broad brush across all African Americans, though consciously acknowledging these dimensions; similarly, this initial discus- sion of a gay-obligation thesis speaks rather broadly (though in Part II quite self-consciously) of the lesbian, gay, and bisexual community as well. For those falling at the many identity inter- sections, it may be necessary to develop a far more sophisticated "multi-obligation analysis" than either Wilkins or I offer in sketching our theses. See also infra note 119. A second concern of mine in borrowing Wilkins' analysis is that I not effortlessly import strategies of the African American civil rights struggle into the gay rights movement. Thus, in Part m, I take pains to analyze Wilkins' claims rather carefully and to consider their relation- ship to what is clearly a different contextual setting than that of which he writes. Both of these concerns raise the interesting question of whether individuals' obligations to their communities-both in origin and content-differ depending upon the nature of the commu- nity, or, in this context, depending upon the nature of the oppression that the community has suffered. While I have preliminarily considered such questions elsewhere, see William B. Rubenstein, Since When Is The Fourteenth Amendment Our Route to Equality? Some Reflec- tions on the Construction of the "Hate-Speech" Debate From a Lesbian/Gay Perspective, in SPEAKING OF RACE, SPEAKING OF SEX: HATE SPEECH, CIVIL RIGHTS, AND CIVIL LIBERTIES 280 (1994), the limited scope of this Essay does not enable me to pursue my responses in more depth here. 6. At the risk of excluding others, those with whom I worked most closely and who are remarkable role models include Marc Wolinsky, a partner at Wachtell, Lipton, Rosen & Katz who litigated, inter alia, Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en bane); David Braff, a partner at Sullivan & Cromwell, who helped litigate Gay Teachers Ass'n v. Board of Educ. of N.Y., 585 N.Y.S.2d 1016 (1st Dept. 1992) and Able v. United States, 88 F.3d 1280 (2d Cir. 1996); Joe Tringali, a partner at Simpson, Thacher & Bartlett, who litigated, inter alia, Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994); David Hollander, who, while a partner at Morrison & Foerster, was the chair of the board of directors of Lambda Legal Defense & Edu- cation Fund; and the late Craig Davidson (Webster & Sheffield; Simpson, Thacher & Bartlett) and Michael Valentini (Skadden, Arps, Slate, Meagher & Flom), two of the founders of the Gay and Lesbian Alliance Against Defamation (GLAAD), see Craig J. Davidson & Michael G. Valentini, CulturalAdvocacy: A Non-Legal Approach to Fighting Defamation of Lesbians and Gays, 2 L. & SEXUALITY: REV. LESBIAN & GAY LEGAL ISSUES 103 (1992). HASTINGS LAW JOURNAL [Vol. 48 ond catalyst for my thoughts here, though, has been the unsatisfying dis- course within the legal academy about the career paths available to law students generally and to minority law students in particular. Part of the socialization of law school is an implicit inculcation that two career paths exist-public interest law for the good and everything else for the fallen.