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Boutilier and the U.S. Supreme Court's
Sexual Revolution
MARC STEIN
In its controversial 2003 decision in Lawrence v. Texas, the U.S. Supreme

Court struck down state sodomy laws as unconstitutional violations of the
rights of consenting adults to have sex in private.' These laws, still in exis-
tence in thirteen states at the time of Lawrence, were infrequently enforced
in the late twentieth and early twenty-first centuries but were often used to
justify and legitimate sexual discrimination in employment, immigration,
marriage, the military, and other arenas of "private" and "public" life. In
this sense, they functioned like state laws against adultery, cohabitation,
and fornication. Rarely utilized and widely flouted, these prohibitions re-
mained on the books, available for use in struggles over sex and sexuality
2
and in debates about the parameters of sexual citizenship.
1. Lawrence v. Texas, 539 U.S. 558 (2003); 123 S. Ct. 2472. As is discussed in the conclu-
sion, the privacy right affirmed in Lawrence was qualified and limited in various ways.
2. For a review of these and other laws as of September 1994, see Richard A. Posner and
Katharine B. Silbaugh, A Guide to America's Sex Laws (Chicago: University of Chicago
Press, 1996). On sexual citizenship, see Lauren Berlant, The Queen of America Goes to
Marc Stein is an associate professor of history at York University in Toronto

<mrstein@yorku.ca>. Research on this essay was supported by grants from the
Social Sciences and Humanities Research Council of Canada and York University.
The author gratefully acknowledges the comments, suggestions, and invitations
of Henry Abelove, Mary Louise Adams, Mary Frances Berry, Stephen Brooke,
Angie Blake, Elspeth Brown, David Cruz, John D'Emilio, Karen Dubinsky, Marc
Egnal, William Eskridge, Ram6n Guti6rrez, Rick Halperin, John Howard, Laura
Kalman, Karen Krahulik, Molly Ladd-Taylor, Steven Maynard, Joanne Mey-
erowitz, Jorge Olivares, Liam Riordan, Leila Rupp, Abby Schrader, Christopher
Tomlins, Sharon Ullman, LeeAnn Whites, Rhonda Williams, and the anonymous
reviewers for LHR.
Law and History Review Fall 2005, Vol. 23, No. 3

© 2005 by the Board of Trustees of the University of Illinois
492 Law and History Review, Fall 2005
As was evident in Lawrence itself, such laws were not just vestiges of
older systems of sexual regulation and sexual production. In March 2000,
for example, the New York Times reported that Kimberly Henry and Rich-
ard Pitcher, an unmarried couple, had been charged with violating New
Mexico's statute against "unlawful cohabitation." Pitcher's ex-wife, who
had cohabited with Mr. Pitcher herself but became a born-again Christian
after her fourth marriage, had filed a complaint because of her concerns
about their children's exposure to a "nonfamily environment." The Times
also mentioned that Arizona's state legislature had recently "rebuffed ef-
forts ... to repeal its own eighty-year-old cohabitation law after a com-
mittee chairman described it as a bulwark against the 'decaying fabric of
society."' In April 2001 the CharlotteObserver reported on federal judge
Carl Horn, who frequently invoked a North Carolina law banning fornica-
tion and adultery in cases involving cohabiting defendants. Arguing that he
would not release a criminal defendant on bond "knowing that he or she
will break the law," Horn told defendants "they won't be freed on bond
until they agree to get married, move out of the house or have their partner
leave." One lawyer claimed that this had happened to his clients "five to
10 times a year" and in about half of the cases the clients agreed to get
married immediately. In one instance, the boyfriend of a female defendant
raised his hand in court and told the judge that he had been planning to
ask his girlfriend to marry him on her birthday. The judge then asked the
defendant if she would marry the man and the two were wed several weeks
later. According to the Observer,since 1993 "dozens of defendants" in this
situation had married. In 2003, just before Lawrence was announced, the
North Dakota Senate voted against repealing a state law that made it a crime
for a man and a woman to live together "openly and notoriously." As one
state senator declared, the law "stands as a reminder that there is right and
there is wrong." Even after Lawrence, the New York Times reported that
Washington City: Essays on Sex and Citizenship (Durham: Duke University Press, 1997);
Lauren Berlant and Michael Warner, "Sex in Public," CriticalInquiry 24, no. 2 (Winter 1998):
547-66; Cheshire Calhoun, Feminism, the Family,and the Politicsof the Closet: Lesbian and
Gay Displacement(New York: Oxford University Press, 2000); Margot Canaday, "'Who Is
a Homosexual?': The Consolidation of Sexual Identities in Mid-Twentieth-Century Ameri-
can Immigration Law," Law and Social Inquiry 28, no. 2 (Spring 2003): 351-86; Margot
Canaday, "Building a Straight State: Sexuality and Social Citizenship under the 1944 G.I.
Bill," Journalof American History 90, no. 3 (Dec. 2003): 935-57; Citizenship Studies 5,
no. 3 (Nov. 2001); Lisa Duggan and Nan D. Hunter, Sex Wars: Sexual Dissent and Political
Culture (New York: Routledge, 1995); Eithne Luibhrid, Entry Denied: Controlling Sexu-
ality at the Border (Minneapolis: University of Minnesota Press, 2002); Michael Warner,
ed., Fear of a Queer Planet: Queer Politicsand Social Theory (Minneapolis: University of
Minnesota Press, 1993).
Boutilier and the Supreme Court
Joanne Webb, a sales representative of Passion Parties, a sex toy company

that uses '"Tupperware-style marketing," had been arrested for violating a
Texas law that prohibits the sale of obscene devices, defined as materials
"designed or marketed as useful primarily for the stimulation of human
genital organs." 3
In the aftermath of Lawrence, critics on the right warned that laws against
adultery, bestiality, bigamy, cohabitation, fornication, incest, pedophilia,
polygamy, and same-sex marriage were now vulnerable to challenge, while
critics on the left attacked the ruling for not touching sexual discrimination
in the public sphere and not protecting consensual sex outside the bounds
of committed, monogamous relationships. 4 At stake in these discussions
were sharply conflicting views about the proper role of the state in society,
an issue that divides both the right and the left in the United States.5 Yet
despite these disagreements, the vast majority of commentators agreed
with the view expressed in Justice Anthony Kennedy's majority opinion
that the ruling in Lawrence was consistent with Supreme Court precedents
established from 1965 to 1973.6
This essay argues that this view is based on a fundamental misunder-
standing (or a dramatic re-appropriation) of what the Court did thirty to
forty years ago in a set of cases concerning abortion, birth control, ho-
mosexuality, interracial marriage, and obscenity. In reality, Lawrence not
only reversed the Court's 1986 ruling in Bowers, its decision upholding
Georgia's sodomy law, but also revised the heteronormative vision of sexual
freedom, equality, and citizenship that had guided the Court since the
1960s.7 The essay advances two main historical claims. First, in the period
3. New York Times (NYT), 25 Mar. 2000, A7; Albuquerque Journal, 11 Mar. 2000; Char-
lotte Observer 4 Apr. 2001; NY, 4 Apr. 2003,A12; NY, 20 Jan. 2004,A12. See also Jewish
World Review, 25 Oct. 2000.
4. In fact, these responses preceded and anticipated the announcement of the decision.
See, for example, the April 2003 comments of U.S. Senator Rick Santorum, widely reported
in the press. For an early critical response from the left, see "Did Gays Get All They Want
from the Supreme Court? (Really?)," History News Network, 7 July 2003, http://hnn.us/
articles/l 542.html.
5. See Sara Diamond, Roads to Dominion: Right-Wing Movements and PoliticalPower
in the United States (New York: Guilford, 1995).
6. Kennedy wrote, "There are broad statements of the substantive reach of liberty under
the Due Process Clause in earlier cases ... but the most pertinent beginning point is our
decision in Griswold." Kennedy went on to discuss other precedents, including Eisenstadt
and Roe.
7. Bowers v. Hardwick, 478 U.S. 186 (1986). I refer to "sexual freedom, equality, and
citizenship," as opposed to "sexual privacy," as a way of moving beyond the limitations of
the latter to encompass the Court's doctrine in such realms as immigration, marriage, and
speech, to emphasize the importance of sexual publicity, and to resist the negative aspects
of private/public binaries and hierarchies. See the works cited in note 2.
from 1965 to 1973 the Court developed a sexual doctrine that was not
broadly libertarian or egalitarian but instead was based on the supremacy
of adult, heterosexual, monogamous, marital, familial, domestic, private,
and procreative forms of sexual expression. This heteronormative doctrine
was applied in distinct ways in different areas of the law, but it shaped
the Court's rulings across free speech, immigration, marriage, and privacy
cases. 8 Second, although liberal activists and advocates challenged some
aspects of the status quo, they joined their conservative counterparts in
contributing to the development of this doctrine as they worked within
and against the constraints of the legal system. When the mass media, law
journals, public officials, state and federal courts, and academic historians
subsequently misrepresented the development of the new legal regime,
they suggested incorrectly to various types of sexual criminals (including
heterosexual adulterers, cohabitants, fornicators, and sodomites) that their
rights to engage in illegal behaviors had been recognized by the Court.
This mystification had the effect of binding such sexual criminals to the
dominant heteronormative order, even though their rights had not been
secured. 9 Without understanding this history, the U.S. public in the post-
Lawrence era is again in danger of misperceiving the nature of the rights
that have been affirmed by the Supreme Court.
In a series of rulings announced in the midst of the sexual revolution,
the U.S. Supreme Court redefined relationships between law and sexual-
ity in the United States. In Griswold (1965), the Court ruled five to two
(with two additional judgment concurrences) that a state law forbidding
the use of contraceptives by married couples unconstitutionally intruded
upon rights of marital privacy. 0 In Fanny Hill (1966), six of nine justices
restricted the scope of obscenity laws, with a plurality of three declaring
that only texts that were "utterly without redeeming social value" could
8. On heteronormativity, see the works on sexual citizenship cited in note 2.

9. I discuss this dynamic in "Inventing Rights and Wrongs: Rulings, Reception, and
Revolution on the U.S. Supreme Court, 1965-1973," presented at the American Histori-
cal Association annual meeting, San Francisco, Jan. 2002; The 1950s and 1960s in North
America conference, Wesleyan University, Apr. 2003; the Canadian Lesbian and Gay Stud-
ies Association annual meeting, Halifax, Jun. 2003; the Sexual Worlds, Political Cultures
conference, Social Science Research Council, Washington, D.C., Oct. 2003.
10. Griswold v. Connecticut, 381 U.S. 479 (1965). See also William N. Eskridge, Jr., and
Nan D. Hunter, Sexuality, Gender, and the Law (Westbury, N.Y.: Foundation Press, 1997),
3-24; David J. Garrow, Liberty andSexuality: The Right to Privacyand the Making of Roe v.
Wade (Berkeley: University of California Press, 1994), 196-269; Leslie Friedman Goldstein,
The Constitutional Rights of Women: Cases in Law and Social Change, 2d ed. (Madison:
University of Wisconsin Press, 1989), 298-324; N. E. H. Hull and Peter Charles Hoffer,
Roe v. Wade: The Abortion Rights Controversy in American History (Lawrence: University
Press of Kansas, 2001), 76-88.
Boutilierand the Supreme Court
be restricted." In Loving (1967), the Court ruled unanimously that laws

prohibiting marriages between people of different races violated the U.S.
Constitution. 2 In Eisenstadt(1972), the Court issued a four-to-one ruling
(with two additional judgment concurrences) that struck down a state law
banning the distribution of contraceptives to unmarried people. 3 And in
Roe (1973), seven of nine justices found that laws that prohibited abortions
in the first six months of pregnancy unconstitutionally infringed upon rights
of reproductive privacy. 4 In apparent contrast, in Boutilier (1967) six of
11. A Book Named "John Cleland'sMemoirs of a Woman of Pleasure" v. Attorney General

of the Commonwealth of Massachusetts (commonly referred to as Fanny Hill), 383 U.S. 413
(1966). See also Edward de Grazia, Girls Lean Back Everywhere: The Law of Obscenity
and the Assault on Genius (New York: Random House, 1992), 436-43; Bob Woodward and
Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon and Schuster,
1979), 15-16, 169-77, 192-204, 244-53, 279-82, 364-65, 403. Other obscenity rulings in
this period include Ginzburg v. U.S., 383 U.S. 463 (1966); Mishkin v. New York, 383 U.S.
502 (1966); Redmond v. United States, 384 U.S. 264 (1966); Redrup v. New York, 386 U.S.
767 (1967); Landau v. Fording, 388 U.S. 456 (1967); Teitel Film Corp. v. Cusack, 390 U.S.
139 (1968); Ginsberg v. New York, 390 U.S. 629 (1968); Interstate Circuit v. Dallas, 390
U.S. 676 (1968); Lee Art Theatre v. Virginia, 392 U.S. 636 (1968); Stanley v. Georgia, 394
U.S. 557 (1969); Walker v. Ohio, 398 U.S. 434 (1970); Blount v. Rizzi, 400 U.S. 410 (1971);
Byrne v. Karalexis, 401 U.S. 216 (1971); UnitedStates v. Reidel, 402 U.S. 351 (1971); United
States v. Thirty-Seven Photographs, 402 U.S. 363 (1971); Kois v.Wisconsin, 408 U.S. 229
(1972); Rabe v. Washington, 405 U.S. 313 (1972); Papish v. Board of Curators,410 U.S.
667 (1973); Miller v. California,413 U.S. 15 (1973); ParisAdult Theatre I v. Slaton, 413
U.S. 49 (1973); Kaplan v. California,413 U.S. 115 (1973); United States v. Orito,413 U.S.
139 (1973).
12. Loving v. Virginia, 388 U.S. 1 (1967). See also Rachel F. Moran, InterracialIntimacy:
The Regulation of Race andRomance (Chicago: University of Chicago Press, 2001); Renee
C. Romano, Race Mixing: Black-White Marriagein PostwarAmerica (Cambridge: Harvard
University Press, 2003); Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of
'Race' in Twentieth-Century America," in Sex, Love, Race: CrossingBoundaries in North
American History, ed. Martha Hodes (New York: New York University Press, 1999), 464-90;
Robert J. Sickels, Race, Marriage,and the Law (Albuquerque: University of New Mexico
Press, 1972); Walter Wadlington, "The Loving Case: Virginia's Antimiscegenation Statute in
Historical Perspective," Virginia Law Review 52 (Oct. 1966): 1189-1223; Peter Wallenstein,
"Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860s-1960s," Chicago-
Kent Law Review 70, no. 2 (1994): 371-437; Peter Wallenstein, Tell the Court I Love My
Wife: Race, Marriage,and Law-An American History (New York: Palgrave, 2002). For a
related case, see McGlaughlin v. Florida,379 U.S. 184 (1964).
13. Eisenstadt v. Baird, 405 U.S. 438 (1972). See also Eskridge and Hunter, Sexuality,
Gender,and the Law, 24-30; Garrow, Liberty and Sexuality, 457, 473-599; Goldstein, The
ConstitutionalRights of Women, 322-33.
14. Roe v. Wade, 410 U.S. 113 (1973). See also Eskridge and Hunter, Sexuality, Gen-
der and the Law, 30-36; Marian Faux, Roe v. Wade: The Untold Story of the Landmark
Supreme Court Decision That Made Abortion Legal (New York: New American Library,
1988); Garrow, Liberty and Sexuality, 473-599; Goldstein, The ConstitutionalRights of
Women, 334-59; Norma McCorvey, with Andy Meisler, I Am Roe: My Life, Roe v. Wade,
Law and History Review, Fall 2005
nine justices ruled that "homosexuals" could be excluded and deported

from the country under the "psychopathic personality" provisions of the
15
1952 Immigration and Nationality Act.
and Freedom of Choice (New York: HarperCollins, 1994); Leslie J. Reagan, When Abor-
tion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973 (Berkeley:
University of California Press, 1997), 216-45; Eva R. Rubin, The Abortion Controversy:A
Documentary History (Westport, Conn.: Greenwood, 1994), 117-69; Sarah Weddington, A
Question of Choice (New York: Putnam's, 1992); Woodward and Armstrong, The Brethren,
165-89, 229-40. For other abortion rulings in this period, see U.S. v. Vuitch, 402 U.S. 62
(1971); Doe v. Bolton, 410 U.S. 179 (1973).
15. Boutilierv. the Immigrationand NaturalizationService, 387 U.S. 118 (1967). Boutilier
has attracted minimal attention by historians, but more by legal scholars. See Maurice A.
Roberts, "Sex and the Immigration Laws," San Diego Law Review 14 (1976): 9-41; William
T. Reynolds, "The Immigration and Nationality Act and the Rights of Homosexual Aliens,"
Journal of Homosexuality 5, nos. 1-2 (Fall 1979-Winter 1980): 79-87; Marc Bogatin,
"The Immigration and Nationality Act and the Exclusion of Homosexual Aliens: Boutilier
v. INS Revisited," Cardozo Law Review 2, no. 2 (Winter 1981): 359-96; Rachel A. Hexter,
"Immigration - Naturalization," Suffolk TransnationalLaw Journal6, no. 2 (Spring 1982):
383-94; Robert Poznanski, "The Propriety of Denying Entry to Homosexual Aliens: Examin-
ing the Public Health Service's Authority over Medical Exclusions," University of Michigan
Journalof Law Reform 17 (Winter 1984): 331-59; Samuel M. Silvers, "The Exclusion and
Expulsion of Homosexual Aliens," Columbia Human Rights Law Review 15, no. 2 (Spring
1984): 295-332; Peter N. Fowler and Leonard Graff, "Gay Aliens and Immigration: Resolv-
ing the Conflict Between Hill and Longstaff," University of Dayton Law Review (1985):
621-44; Philip Girard, "From Subversion to Liberation: Homosexuals and the Immigration
Act, 1952-1977," CanadianJournal of Law and Society 2 (1987): 1-27; Richard Green,
"'Give Me Your Tired, Your Poor, Your Huddled Masses' (of Heterosexuals): An Analysis
of American and Canadian Immigration Policy," Anglo-American Law Review 16 (1987):
139-59; William N. Eskridge, Jr., "Gadamer/Statutory Interpretation," ColumbiaLaw Review
90 (Apr. 1990): 609-81; Shannon Minter, "Sodomy and Public Morality Offenses under
U.S. Immigration Law: Penalizing Lesbian and Gay Identity," Cornell International Law
Journal 26 (1993): 771-817; William N. Eskridge, Jr., Dynamic Statutory Interpretation
(Cambridge: Harvard University Press, 1994), 48-80; Robert J. Foss, "The Demise of the
Homosexual Exclusion: New Possibilities for Gay and Lesbian Immigration," HarvardCivil
Rights-Civil Liberties Law Review 29, no. 2 (Spring 1994; dated Spring 1993 on the inter-
net): 439-75; William N. Eskridge, "Challenging the Apartheid of the Closet: Establishing
Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981," Hofstra
Law Review 25 (Spring 1997): 817-960; Eskridge and Hunter, Sexuality, Gender and the
Law, 175-89; William N. Eskridge, Jr., Gaylaw: Challengingthe Apartheid of the Closet
(Cambridge: Harvard University Press, 1999), 35-36, 69-70, 132-34, 383-84; Barney Frank,
"American Immigration Law: A Case Study in the Effective Use of the Political Process,"
in Creating Change: Sexuality, Public Policy,and Civil Rights, ed. John D'Emilio, William
B. Turner, Urvashi Vaid (New York: St. Martin's, 2000), 208-35; Joyce Murdoch and Deb
Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York: Basic,
2001), 103-34. Helpful works by historians and ethnic studies scholars include William B.
Turner, "Lesbian/Gay Rights and Immigration Policy: Lobbying to End the Medical Model,"
Journalof PolicyHistory 7, no. 2 (1995): 208-25; Luibhrid, Entry Denied,77-101; Canaday,
"'Who Is A Homosexual?"' For related cases in this period, see Rosenberg v. Fleuti, 374
U.S. 449 (1963); INS v. Lavoie, 387 U.S. 572 (1967); Tovar v. INS, 388 U.S. 915 (1967).
Historians of the post-World War II sexual revolution have produced

groundbreaking studies exploring various dimensions of change and con-
tinuity but have not paid much attention to the Supreme Court. When
mentioning the Court they usually highlight the liberalizing aspects of
rulings in the 1960s and early 1970s and situate conservative decisions
in the context of rightwing backlash in the late 1970s, 1980s, and 1990s.
Discussing Griswold, most do not point out that the majority affirmed the
constitutionality of laws against adultery, fornication, and homosexuality.
They typically do not emphasize that on the very day that the Court an-
nounced its ruling in Fanny Hill it upheld obscenity convictions in cases
dealing with fetishism, homosexuality, and sadomasochism. When ex-
ploring Loving, they generally do not mention the passage that based the
ruling on the notion that marriage is necessary for reproduction. Nor do
they acknowledge that Eisenstadt and Roe embraced reproductive rather
than sexual privacy. The problem is not that these historians are wrong
in emphasizing that the Court was moving in a liberal direction, but their
work has obscured the conservative and limiting elements of the Court's
rulings. In other words, they have made reformers appear like revolutionar-
ies. None of the most notable books on the history of the sexual revolution
even mentions Boutilier.16
Leading historians of the sexual revolution appear unfamiliar with the
voluminous literature produced by legal scholars, who for decades have
been offering critical interpretations of the Court's sex rulings. 7 But dis-
cipinary divisions have also limited the work of legal scholars. In general,
they have not undertaken original historical research on the full range of
movements responsible for bringing sex cases to the Court and the popu-
lar reception of major sex rulings during the era of the sexual revolution.
No legal scholar, for instance, has examined the Philadelphia-based Ho-
mosexual Law Reform Society (HLRS), which supported the litigation
16. See David Allyn, Make Love, Not War: The Sexual Revolution, An Unfettered History
(Boston: Little, Brown, 2000), 38, 55-70, 263-66; Beth Bailey, Sex in the Heartland(Cam-
bridge: Harvard University Press, 1999), 7, 15, 129-30, 182; Nancy F. Cott, Public Vows: A
History of Marriageand the Nation (Cambridge: Harvard University Press, 2000), 199-201,
210-16; John D'Emilio and Estelle Freedman, Intimate Matters: A History of Sexuality in
America (New York: Harper and Row, 1988), 250, 277, 287-88, 315, 327, 350; Kevin White,
Sexual Liberation or Sexual Licence?: The American Revolt againstVictorianism (Chicago:
Ivan Dee, 2000), 137-41, 161, 176.
17. For an influential early contribution, see Thomas C. Grey, "Eros, Civilization and the
Burger Court," Law and Contemporary Problems 43, no. 3 (Summer 1980): 83-100. For
an insightful review of the literature, see David B. Cruz, "'The Sexual Freedom Cases'?
Contraception, Abortion, Abstinence, and the Constitution," University of Southern Cali-
fornia Law School Olin Working PaperNo. 99-20, Feb. 2000. For a helpful recent work by
a literary critic, see Deborah Nelson, Pursuing Privacy in Cold War America (New York:
Columbia University Press, 2002).
in Boutilier.18 Moreover, the conventions of legal scholarship ordinarily

distinguish between (and keep separate) different types of sex cases. Many
legal scholars would argue, for example, that what the Court does in the
realm of privacy law might have no necessary relationship to what the
Court does in the distinct realms of immigration, marriage, and speech law.
The Court might protect the free speech and privacy rights of gay citizens,
for instance, but deny the immigration rights of gay aliens. 19 This helps
explain why the legal literature on Boutilierhas tended to remain separate
20
from the legal literature on the other cases examined in this essay. Many
legal scholars would also argue that challenges to the constitutionality of
statutes have to be distinguished from challenges to the application and
enforcement of statutes. Insofar as they regard Griswold, Loving, Eisen-
stadt, and Roe as constitutional cases and Boutilier as a statutory case,
they rarely discuss them together. 21 Unfortunately, these tendencies have
prevented many legal scholars from considering the underlying structure of
18. When discussing gay, lesbian, and bisexual movements before the Stonewall riots of
1969, legal scholars generally rely on and cite John D'Emilio, Sexual Politics, Sexual Com-
munities: The Making of a Homosexual Minority in the United States, 1940-1970 (Chicago:
University of Chicago Press, 1983). Sexual Politics is a groundbreaking work that remains
the standard treatment of the homophile movement, but it is now more than two decades old
and its conclusions have been supplemented and revised by a number of works, including
Nan Alamilla Boyd, Wide Open Town: A History of Queer San Francisco to 1965 (Berke-
ley: University of California Press, 2003); Gay and Lesbian Historical Society of Northern
California, "MTF Transgender Activism in the Tenderloin and Beyond, 1966-1975," GLQ
4:2 (1998): 349-72; David K. Johnson, The Lavender Scare: The Cold War Persecution
of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press,
2004); Martin Meeker, "Behind the Mask of Respectability: Reconsidering the Mattachine
Society and Male Homophile Practice, 1950s and 1960s," Journalof the History of Sexuality
10, no. 1 (Jan. 2001): 78-116; Joanne Meyerowitz, How Sex Changed: A History of Trans-
sexuality in the United States (Cambridge: Harvard University Press, 2002); Marc Stein,
City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia,1945-1972 (Chicago:
University of Chicago Press, 2000). For exceptional works by legal scholars that address
pre-1970s social movements and reception, see Patricia A. Cain, Rainbow Rights: The Role
of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (Boulder, Colo.:
Westview, 2000); de Grazia, Girls Lean Back Everywhere; Garrow, Liberty and Sexuality;
Murdoch and Price, Courting Justice; Sickels, Race, Marriage,and the Law; Wallenstein,
"Race, Marriage, and the Law of Freedom." Grey also discusses reception. Note, however,
that of these legal works only Courting Justice addresses Boutilier in any depth, and none
explores Boutilier's social movement advocates.
19. As many scholars have noted, the Supreme Court has tended to assert itself in the
realm of free speech but has proven very deferential to Congress on matters of immigration,
in part because aliens do not have the same rights as citizens.
20. This is true of nearly all of the legal and literary works cited in notes 10-17, with the
important exceptions of works by Eskridge, Hunter, and Murdoch and Price.
21. Boutilier is often regarded as a statutory case, though, as is discussed below, one of
the main arguments challenged the Immigration and Nationality Act on the grounds that
the law was unconstitutionally vague.
Boutilierand the Supreme Court 499
heteronormative thought that influences outcomes across different realms

of the law. Also, they have restricted the ability of legal scholars to read
different types of cases against one another. Boutilier may not be a free
speech or privacy case, for example, but, as I discuss below, Boutilier's
speech acts about sex acts that took place in private led to his deportation.
And the U.S. government's arguments against Boutilier suggest that one of
its animating concerns was that gay privacy and secrecy might allow de-
ceptively respectable homosexuals to gain entry to the country. In addition,
understanding that the Court in Boutilier was willing to allow Congress to
define homosexuality as a psychopathology casts light on how the Court
in other cases could allow states to refuse to extend privacy protections to
homosexual acts (since the Court does not recognize a right to be psycho-
pathological in private). In other words, there is much to be learned about
the character and limits of privacy and free speech doctrine by examining
a case that does not apparently concern privacy or free speech. Finally, to
omit Boutilier in discussions of the Court's sex rulings because Boutilier
was an alien, not a citizen, makes us complicit in the production and polic-
ing of sexual, legal, and national borders.
Examining Boutilier in the context of these other cases has great po-
tential for expanding our understanding of the scope and limits of the
Court's and the country's sexual revolution. Among other things, it moves
Boutilierout of its placement exclusively within gay rights jurisprudence
and helps us to see how the law constructed normative heterosexuality
and deviant homosexuality in dynamic and hierarchical relationship to
one another. Such an analysis demonstrates that the Court in Boutilier did
not contradict the arguments advanced in its liberalizing rulings but used
relatively consistent logic. The Court majorities offered a vision of sexual
citizenship that was not broadly libertarian and egalitarian; they did not,
for example, endorse the principle that consenting adults may do as they
please in private. What the Court did was to develop a narrowly framed
doctrine that privileged and extended special rights to adult, heterosexual,
monogamous, marital, familial, domestic, private, and procreative forms of
sexual expression. Insofar as its doctrine was based on family, sexual, and
reproductive discourses and formations that were historically and culturally
associated with middle-class white male hegemony, the Court simultane-
ously helped institutionalize class, gender, and race privilege. Viewed from
these perspectives, post-Roe decisions, often seen as reversing or limiting
the earlier Court's liberalization, now appear consistent with the Court's
prior rulings.22 In short, the broadly libertarian and egalitarian rights of
sexual freedom that many U.S. Americans assume are enshrined in the
22. Bowers was widely criticized along these lines, as was Doe v. Commonwealth, 425
U.S. 901 (1976).
2
U.S. Constitution were not recognized by the highest court in the land. 1
Instead, the Court helped institutionalize classed, gendered, and racialized
principles of heteronormative supremacy.
The first section of this essay, aimed primarily at historians, builds on and
extends the work of legal scholars to establish the basic parameters of the
argument about the conservative nature of the Court's liberalizing rulings
from 1965 to 1973. This discussion frames the critical analysis of Boutil-
ier that follows. The second section introduces Boutilier and then pairs
conservative and liberal arguments in the case, first in the circuit court's
majority and minority opinions and then in the opposing briefs submitted
to the Supreme Court. The third section follows Boutilier to the Supreme
Court, this time pairing the Court's majority ruling and minority dissents.
By tracing Boutilier as it moved through the courts and highlighting the
ways in which conservatives and liberals joined together in promoting nega-
tive judgments about homosexuality, the second and third sections show
that the Court's heteronormative decisions were authored not only by the
justices and their clerks but also by legal advocates and social movement
activists. While these sections emphasize the conservatism of Boutilier's
defenders, the fourth and final section takes another look at the social
movement strategies used in Boutilier,exploring the relationship between
the sexually respectable activities of HLRS and the sexually transgressive
work of HLRS's homophile supporters. In the end, the essay demonstrates
that the Court, working at times with conservative concepts also endorsed
by liberal advocates and activists, acted to. regulate and set limits on what
many perceived as a dangerous and disorderly sexual revolution.
Sexual Liberalization
Notwithstanding later interpretations by the mass media, law journals, pub-

lic officials, state and federal courts, and academic historians, key passages
in the rulings from Griswold to Roe make clear that the Court rejected a
libertarian and egalitarian vision of sexual citizenship. Other passages may
have suggested a broader vision, but the presence of conservative language,
available for use in later contexts, meant that sexual freedom and equality
had not been secured.
In the majority opinion in Griswold, for example, William 0. Douglas
asked with dramatic rhetorical flourish, "Would we allow the police to
search the sacred precincts of marital bedrooms for telltale signs of the
23. Popular beliefs are suggested in the tone of surprise conveyed in the articles cited in
note 3.
use of contraceptives? The very idea is repulsive to the notions of privacy

surrounding the marriage relationship." He continued, "We deal with a right
of privacy older than the Bill of Rights-older than our political parties,
older than our school system. Marriage is a coming together for better or
for worse, hopefully enduring, and intimate to the degree of being sacred.
It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social
projects. 2 4 In Douglas's formulation, marriage was a pre-constitutional
institution whose privileged space was the bedroom. Protecting that space
was the concept of privacy, which Douglas located at the boundaries of
marriage, "surrounding" it. Outside of these boundaries were politics, com-
merce, and society. Inside was a relationship between two people that was
sacred, intimate, and harmonious. Elsewhere Douglas used different spatial
metaphors, but he repeatedly linked privacy with marriage, and specifically
with a type of romanticized, idealized, and privatized marriage historically
25
connected to the bourgeois, male-dominated, and white nuclear family.
Arthur Goldberg's concurring Griswold opinion, signed by Earl Warren
and William Brennan, also endorsed "the right of privacy in marriage,"
declaring that "the fact that no particular provision of the Constitution ex-
plicitly forbids the State from disrupting the traditional relation of the fam-
ily-a relation as old and as fundamental as our entire civilization-surely
does not show that the Government was meant to have the power to do
so." Noting in contrast that "the discouraging of extra-marital relations"
was a "legitimate subject of state concern," state "regulation of sexual
promiscuity or misconduct" was "proper," and the constitutionality of laws
prohibiting "adultery and fornication" was "beyond doubt," Goldberg em-
phasized that the problem with Connecticut's statute was that it interfered
with marital rights. Goldberg also included an excerpt from John Harlan's
dissent in Poe (1961), which had declared, "Adultery, homosexuality and
24. Griswold, 485-86.

25. As various scholars have shown, this conception of marriage had roots in the rise
of the bourgeois, male-dominated, white nuclear family in the eighteenth and nineteenth
centuries. Moreover, while the model of the two-parent, child-centered family that practiced
birth control had cross-class and cross-racial appeal in the United States, it was a model that
middle-class whites had used historically to differentiate themselves from their perceived
class and race inferiors. And insofar as rates of formal marriage were higher among middle-
class whites than among other U.S. groups, the Court's affirmation of rights of privacy in
marriage effectively granted new privileges to the country's dominant class and race. See
Cott, Public Vows; D'Emilio and Freedman, Intimate Matters; Jacqueline Jones, Labor of
Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present
(New York: Basic, 1985); Christopher Lasch, Haven in a Heartless World: The Family
Besieged (New York: Basic, 1977); Eva R. Rubin, The Supreme Court and the American
Family: Ideology and Issues (New York: Greenwood, 1986).
the like are sexual intimacies which the State forbids... but the intimacy
of husband and wife is necessarily an essential and accepted feature of
the institution of marriage, an institution which the State not only must
allow, but which always and in every age it has fostered and protected."
While Douglas described marriage as pre-constitutional, Goldberg reached
back to set traditional family relations in the context of the founding of
"our" civilization. As Gail Bederman has pointed out, dominant discourses
of "civilization" in the United States have been presumptively middle-
class, male-dominated, and white, so Goldberg was invoking an imagined
classed, gendered, and racialized past in defense of marriage. Goldberg
also endorsed Harlan's position that the state's promotional relationship
to marriage had not changed over time. This implied that marriage was
a fragile institution, in need of state support, but it also provided means
by which the state could protect marriage: through laws that discouraged
extramarital sex, regulated sexual promiscuity and misconduct, prohibited
26
adultery and fornication, and forbade homosexuality.
Harlan and Byron White also made clear that the relevant rights were
marital rights. While Harlan filed a concurring opinion that reaffirmed his
dissent in Poe, White concurred by criticizing the Connecticut law "as
applied to married couples." Noting that "the statute is said to serve the
State's policy against all forms of promiscuous or illicit sexual relation-
ships, be they premarital or extramarital, concededly a permissible and
legitimate legislative goal," White wrote that he failed to see "how the
ban on the use of contraceptives by married couples in any way reinforces
the State's ban on illicit sexual relationships." White did not invoke the
term "privacy," preferring to concentrate on the Fourteenth Amendment's
"liberty" language, but he, too, argued that Connecticut's law violated the
rights of married people. And he, too, wrote in the midst of an intensely
classed, gendered, and racialized national discussion about promiscuous,
illicit, premarital, and extramarital sex that was linked with Daniel Patrick
Moynihan's controversial report on The Negro Family, which was submitted
26. Griswold, 495-99. Goldberg also cited a dissent by Louis Brandeis that had defended
"'the right to be let alone-the most comprehensive of rights and the right most valued by
civilized men."' Griswold, 494. Along similar lines, Brennan wrote privately to Douglas as
Douglas worked on his opinion: "It is plain that, in our civilization, the marital relationship
above all else is endowed with privacy." Brennan to Douglas, 24 Apr. 1965, Box 1347, Wil-
liam 0. Douglas Papers, Library of Congress. The justices in Griswold repeatedly referred
to the principles, traditions, and values of "our" civilization, "our" society, "our" people, and
"our" institutions, implicitly invoking traditionally classed, gendered, and racialized beliefs
about other civilizations, societies, peoples, and institutions. See also Poe v. Ullman, 367
U.S. 497 (1961); Gail Bederman, Manliness and Civilization:A CulturalHistory of Gender
and Race in the United States, 1880-1917 (Chicago: University of Chicago Press, 1995).
Boutilier and the Supreme Court 503
to President Lyndon Johnson in the same month in which the Court heard
oral arguments in Griswold.27
In short, the Court in Griswold was not invoking a broadly libertarian
right to sexual privacy (that might be claimed by homosexuals, unmarried
blacks, and various other groups) but a narrower right held by married
couples only (and especially those that conformed to white, middle-class,
family-limiting models). According to the Court's ruling, rights of privacy
do not establish a literal sphere (i.e., the "home") in which consenting
adults may do as they please. Instead, these rights create a quasi-literal and
quasi-figurative sphere in which married couples have certain privileges.
Later decisions built on this precedent, not to establish broadly libertarian
rights to sexual privacy, but to extend the doctrine of privacy to cover other
aspects of marriage and reproduction. For example, according to Warren's
decision in Loving, "The freedom to marry has long been recognized as one
of the vital personal rights essential to the orderly pursuit of happiness by
free men. Marriage is one of the 'basic civil rights of man,' fundamental
to our very existence and survival." Identifying marriage as fundamental
to "existence" and "survival," Warren's opinion offered a narrowly procre-
ative and heterosexual conception of marriage and a narrowly marital and
heterosexual conception of procreation. Invoking the historical rights of
27. Griswold, 502, 505. Harlan and White concurred in the judgment but not in the opinion
by Douglas. Under the strict scrutiny doctrine, White was more willing to entertain restric-
tions on marital rights, as long as statutes were "reasonably necessary for the effectuation
of a legitimate and substantial state interest, and not arbitrary or capricious in application"
Griswold, 504. See also Daniel Patrick Moynihan, The Negro Family: The Casefor National
Action, in The Moynihan Report and the Politics of Controversy, ed. Lee Rainwater and
William L. Yancey (Cambridge: MIT Press, 1967). Moynihan, an assistant secretary of labor
in the Johnson administration, argued that the most fundamental problem facing the Black
community in the United States was the "tangle of pathology" produced by the community's
low rates of long-term marriages and high rates of promiscuity, illegitimacy, and matriar-
chal, female-headed households. The literature on the Moynihan report is extensive. For a
helpful recent contribution, see Ruth Feldstein, Motherhood in Black and White: Race and
Sex in American Liberalism, 1930-1965 (Ithaca: Cornell University Press, 2000), 139-64.
Moynihan submitted his report to Johnson in March 1965; oral arguments in Griswold were
heard on 29 March 1965; the Court's decision was announced on 7 June. On class, gender,
race, and reproductive rights decisions, see Angela Y. Davis, Women, Race, and Class (New
York: Random House, 1981), 202-21; Linda Gordon, Woman's Body, Woman's Right: Birth
Control in America, rev. ed. (1974; New York: Penguin, 1990), 116-58; 249-401; Kath-
ryn Kolbert and Andrea Miller, "Legal Strategies for Abortion Rights in the Twenty-First
Century," in Abortion Wars: A Half Century of Struggle, 1950-2000, ed. Rickie Solinger
(Berkeley: University of California Press, 1998); Dorothy E. Roberts, Killing the Black Body:
Race, Reproduction, and the Meaning of Liberty (New York: Random House, 1997), 56-103;
Loretta J. Ross, "African-American Women and Abortion," in Abortion Wars, 161-207.
"free men," Warren rooted these conceptions in an imagined middle-class,

28
male-dominated, and white past.
While Loving indicated that the right of privacy included rights to decide
whom and whether to marry, Eisenstadtdeclared that it included rights to
decide whether to reproduce. According to Brennan's majority opinion,
"Whatever the rights of the individual to access to contraceptives may
be, the rights must be the same for the unmarried and the married alike.
... If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether
to bear or beget a child."2 9 Left unclear was what else the right of privacy
might mean, but by taking issue with the state's claim that its birth control
statute was rationally related to its stated aims of discouraging "premarital"
and "extramarital" sexual relations, Brennan's opinion implied that laws
against premarital and extramarital sex remained constitutional. Moreover,
the Court echoed the oral arguments presented on behalf of Baird, which
included statistics on the high rates of nonmarital reproduction among
blacks and referred to "the whole social problem of our nation with re-
spect to the poor unwanted child and the welfare mother." In this respect,
the Court's decision was influenced by class, gender, and race anxieties.
Brennan's decision was signed by Douglas, Potter Stewart, and Thurgood
Marshall. Warren Burger dissented. White and Harry Blackmun concurred
in the result but not the majority opinion because, they pointed out, there
was no evidence introduced about the marital status of the woman given
contraception and therefore there was "no reason for reaching the novel
constitutional question whether a State may restrict or forbid the distri-
bution of contraceptives to the unmarried. '30 In other words, only four
justices affirmed the privacy rights of unmarried people, and these four
stipulated only that unmarried people have the right to decide whether to
reproduce.
In Roe, Blackmun wrote for the majority that earlier Court rulings had
recognized that "the right [of privacy] has some extension to activities relat-
ing to marriage .... procreation . . . ,contraception .... family relation-
ships .... and child rearing and education." Now the Court declared that
this right was "broad enough" to encompass abortion, a social problem that
28. Loving, 12. In support of this argument, Warren cited Skinner v. Oklahoma, 316 U.S.
535 (1942), 541, which had declared, "Marriage and procreation are fundamental to the
very existence and survival of the race." Skinner also affirmed "a right which is basic to the
perpetuation of a race-the right to have offspring" (536).
29. Eisenstadt, 453.
30. Oral arguments of Joseph D. Tydings in Eisenstadt, 17 Nov. 1971; Eisenstadt, 464-
was "complicate[d]" by "poverty" and "racial overtones." But according

to Blackmun, "It is not clear to us that the claim asserted by some amici
that one has an unlimited right to do with one's body as one pleases bears
a close relationship to the right of privacy previously articulated in the
Court's decisions. The Court has refused to recognize an unlimited right
of this kind."'" Moreover, in basing its various rulings on a conception of
privacy that restricted the scope of state involvement in marital, familial,
domestic, and reproductive matters, the Court limited its vision of sexual
freedom, equality, and citizenship. According to this conception, the state
was free to, for example, restrict funding for birth control and abortion,
act against public and commercial forms of sexual expression, and deny
relief in cases of marital and familial rape and abuse.32
Meanwhile, in the realm of obscenity law, the Court also made clear that
it did not endorse a libertarian or egalitarian position. Here, in cases such as
Fanny Hill, the Court developed a strict definition of obscenity but contin-
ued to place it outside the bounds of constitutional free speech protections.
And when it developed and applied these definitions, the Court privileged
certain forms of sexual expression over others. At times the Court protected
representations of non-marital, non-monogamous, non-reproductive, and
non-heterosexual forms of sexual expression, but at other times it judged
these forms of expression using discriminatory standards. For example,
the Court in One (1958) and Manual Enterprises (1962) established lim-
ited constitutional protection for respectable homophile periodicals and
male physique magazines. In Fanny Hill, however, the Court's definition
of obscenity referred to material that is "patently offensive because it af-
fronts contemporary community standards relating to the description or
representation of sexual matters." This formulation implicitly established a
hierarchy of sexual representations based on what was deemed acceptable
to the "community." Then in Mishkin (1966), the Court upheld an obscen-
ity conviction on the grounds that texts that dealt with "sado-masochism,
fetishism, and homosexuality" (elsewhere described as "flagellation, fetish-
ism, and lesbianism") must be judged in terms of whether "the dominant
theme of the material taken as a whole appeals to the prurient interest in
sex of the members" of a "clearly defined deviant sexual group" (and not
according to the earlier standard of whether the texts "appeal to a prurient
interest of the 'average person' in sex"). According to the logic of Fanny
31. Roe, 152-53, 116, 154.

32. See Rhonda Copelon, "From Privacy to Autonomy: The Conditions for Sexual and
Reproductive Freedom," in From Abortion to Reproductive Freedom: Transforminga Move-
ment, ed. Marlene Gerber Fried (Boston: South End, 1990), 27-43; Gordon, Woman's Body,
410-12; Kolbert and Miller, "Legal Strategies," 95-99; Carole R. McCann, Birth Control
Politics in the United States, 1916-1945 (Ithaca: Cornell University Press, 1994), 99-173.
Hill and Mishkin (which were announced on the same day), materials that
offended the majority and that aroused a group defined by the dominant
as deviant could be declared obscene, whereas materials that offended so-
called deviant groups but were acceptable to the majority were protected.
The Court had great trouble achieving majorities for its obscenity rulings
in this period, but when it did so in 1973 one of the criteria developed
was "whether 'the average person, applying contemporary community
standards' would find that the work, taken as a whole, appeals to the pruri-
ent interest." 33 By the law of averages, "deviant" representations received
unequal protection.
The Court's narrow conception of sexual freedom, equality, and citi-
zenship was the product of a complex dynamic in which the Court's prior
rulings shaped the arguments that legal advocates made and, in turn, the
arguments of legal advocates shaped the Court's decisions. In other words,
historical agency rested not only with the Court but also with legal advo-
cates, their clients, and the social movements that made litigation possible.
To maximize their chances, advocates often tailored their arguments to fit
prior rulings. If they succeeded, their arguments created new precedents.
To more fully understand the historical processes involved in these cases,
then, it is necessary to go beyond the texts of the rulings. Also important
to explore are the strategies used in selecting cases, mobilizing resources,
securing allies, developing arguments, generating publicity, and responding
to decisions. These strategies were shaped not only by the content of prior
rulings but also by various legal structures and conventions, including the
incrementalist tradition whereby the Court claims that it avoids making
rulings that are broader than necessary, the precedential tradition whereby
the Court claims that it prefers to rely on the language of prior rulings
rather than innovate with new formulations, and the advocacy tradition
whereby lawyers are supposed to act in the best interests of their clients
and not necessarily the larger causes that they represent.
Influenced by these traditions and constrained by the legal system, many
of the advocates in these cases relied on strategies that minimized the po-
tential challenges to the dominant order. For example, many birth control
and abortion rights supporters invoked population control and eugenic
arguments that reinforced U.S. class, race, and ethnic hierarchies (by dis-
couraging reproduction in socially disempowered groups and encouraging
reproduction in empowered ones). 34 Advocates in these cases also relied
33. One, Incorporatedv. Oleson, 355 U.S. 371 (1958); Manual Enterprise v. Day, 370
U.S. 478 (1962); Fanny Hill, 383 U.S. 413 (1966), 418; Mishkin, 383 U.S. 502 (1966), 505,
508; Miller v. California, 413 U.S. 15 (1973), 24. See also Landau, 388 U.S. 456 (1967).
34. See the sources on class, gender, and race that are cited in note 27.
on privacy claims that were compatible with conservative anti-government

and anti-statist politics. They often deferred to experts whose authority was
rooted in hierchical social structures. And they frequently deployed strate-
gies of respectability.35 Griswold's lawyers, for instance, put forward a case
that concerned married couples (not single individuals) who were given
birth control by a doctor (and thus someone who had high cultural status
on matters concerning health and reproduction). Fanny Hill's advocates
defended a work of recognized literary merit that featured a conclusion that
condemned prostitution. The lawyers who pursued Loving worked on behalf
of a white man and a black/Native American woman (a pairing historically
considered less transgressive than other interracial pairings). Eisenstadt
concerned a speaker (rather than a commercial distributor) who gave out
contraceptives to a university (rather than a less well-educated) audience.
And Roe's lawyers, though apparently aware of their client's lesbian past,
prior pregnancies, and loss of custody of two children, demobilized discus-
sion of this complicated personal history by using a pseudonym for Norma
McCorvey. Sometimes the strategies were part of a long-term litigation
plan; at other times they emerged in the crucible of legal circumstances;
in some instances they are best thought of as strategic in effect rather than
intention. But in each of these examples, liberal advocates secured victories
by appealing to conservative values. When these conservative values were
expressed in Court rulings, the results were important victories for marital
and reproductive privacy, but at the cost of limits on sexual freedom, equal-
ity, and citizenship.
Policing Sexual Borders
Examining Boutilier,the Court's most significant gay rights ruling in

the period between Griswold in 1965 and Roe in 1973, makes evident
the limited nature of the Court's sexual doctrine and the participation of
both conservatives and liberals in the development of the Court's views.
Immigration law has long been understood as an important site for the
regulation and production of class, ethnic, national, and race boundaries
and hierarchies in the United States (for example, by favoring middle-
class white Europeans and disfavoring others), but more recently scholars
have examined how these dynamics intersected with the regulation and
35. On respectability, see George L. Mosse, Nationalism and Sexuality: Respectability and
Abnormal Sexuality in Modem Europe (New York: Howard Fertig, 1985); Evelyn Brooks
Higginbotham, Righteous Discontent: The Women's Movement in the Black Baptist Church,
1880-1920 (Cambridge: Harvard University Press, 1993), 185-229.
production of familial, gender, reproductive, and sexual boundaries and

hierarchies (for example, by favoring heteronormative, white, middle-class
family "reunification" and disfavoring other migration processes).3 6 As
a major ruling in the development of the Court's classed, gendered, and
racialized doctrine of sexual freedom, equality, and citizenship, Boutilier
merits careful consideration.
The long historical background to Boutilierbegins with late nineteenth
and early twentieth-century federal immigration laws, under which the
United States denied entry to aliens who were "mentally defective," had
been convicted of "crimes of moral turpitude," or were "persons of constitu-
tional psychopathic inferiority." The 1952 Immigration and Nationality Act,
often referred to as the McCarran-Walter Act, revised the third category
to exclude aliens "afflicted with psychopathic personality." This change
reflected the rise of psychological models that de-emphasized or rejected
"constitutional" (biological, hereditarian, and/or congenital) explanations
of sexual deviance. According to William Eskridge, Jr., 292 people were
barred as "persons of constitutional psychopathic inferiority" from 1917 to
1924; 322 more were barred under this category from 1937 to 1952; and
47 were barred as "psychopathic personality" aliens from 1953 to 1956.
Margot Canaday argues that early twentieth-century immigration authori-
ties more frequently targeted "gender/sex deviants" by using provisions
denying entry to those likely to become "public charges" and those who
had committed "crimes of moral turpitude," but in the 1950s and 1960s
authorities began to favor the "psychopathic personality" exclusion. Eithne
Luibhrid emphasizes the classed, gendered, and racialized aspects of sexual
inclusion and exclusion, and her work suggests that many sexual "devi-
ants" were likely excluded in ways that would not be evident in official
statistics. This was true both before and after 1965, when, in response to
lower court rulings that found the phrase "psychopathic personality" to
be unconstitutionally vague, new legislation excluded aliens with "sexual
deviations." The new language was adopted after Boutilier was admitted to
the United States, so the INS action to deport Boutilier was based officially
on the claim that he had been excludable as a "psychopathic personality"
37
at the time of his original entry.
36. For especially helpful contributions, see Canaday, "'Who Is a Homosexual?"; Luibhdid,
Entry Denied.
37. See Act of 3 Mar. 1891, §1, 26 Stat. 1084; Immigration Act of 1917, §3, 39 Stat. 874;
Immigration and Nationality Act of 1952, Public Law 82-414, §212(a)(4), 66 Stat. 163,
182, 8 U.S.C. 1182(a); Eskridge, Gaylaw, 383-84; Canaday, "'Who Is a Homosexual?";
Luibhrid, Entry Denied; Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962); Act of Oct. 3,
1965, Public Law No. 89-236, §15(b), 79 Stat. 911,919, 8 U.S.C. Section 1182(a)(4). See
also, in addition to the works cited in note 15, "Developments in the Law: Immigration and
According to the facts agreed upon by both sides, Clive Michael Boutili-
er, a Canadian citizen born in Nova Scotia, was first admitted to the United
States as a permanent resident in 1955 at the age of twenty-one. In 1963,
he applied for U.S. citizenship and revealed to a naturalization examiner
that he had been arrested in New York City in 1959 on a sodomy charge,
later dismissed on default of the seventeen-year-old complainant. In 1964,
Immigration and Naturalization Service (INS) investigator James Sarsfield
interrogated Boutilier. The resulting affidavit was submitted to the Public
Health Service (PHS), which certified that Boutilier was "afflicted with
a class A condition, namely, psychopathic personality, sexual deviate" at
the time of original entry. On this basis, the INS began deportation pro-
ceedings. With the help of lawyers Robert Brown and Blanch Freedman,
the American Civil Liberties Union (ACLU), the New York Civil Liber-
ties Union (NYCLU), and the Homosexual Law Reform Society (HLRS),
Boutilier appealed.38
Boutilier's case was first heard by the Board of Immigration Appeals,
which affirmed the INS decision in 1965, and then by three judges on the
Second Circuit Court of Appeals in 1966. One of the three was Irving
Kaufman, who in the 1950s (a decade marked by linked anticommunist
Red and antigay Lavender Scares) had presided over the trial of alleged
communist spies Julius and Ethel Rosenberg and had sentenced the two
to death. 39 Arguing Boutilier's case was Blanch Freedman, who also had
Nationality," HarvardLaw Review 66, no. 4 (Feb. 1953): 643-745; "Limitations on Con-
gressional Power to Deport Resident Aliens Excludable as Psychopaths at Time of Entry,"
Yale Law Journal68, no. 5 (Apr. 1959): 931-48; Irving Appleman, "That New Immigration
Act," American Bar Association Journal 52 (Aug. 1966): 717-20; Thomas J. Scully, "Is
the Door Open Again?-A Survey of Our New Immigration Law," UCLA Law Review 13
(1966): 227-49; Estelle Freedman, "'Uncontrolled Desires': The Response to the Sexual
Psychopath, 1920-1960," Journal of American History 74 (Jun. 1987): 83-106; William
Eskridge, Jr., "Law and the Construction of the Closet: American Regulation of Same-Sex
Intimacy, 1880-1946," Iowa Law Review 82 (May 1997), note 149; Jennifer Terry, An
American Obsession: Science, Medicine, and Homosexuality in Modern Society (Chicago:
University of Chicago Press, 1999).
38. See the complete case record for Boutilier the audiotape of the oral arguments before
the Supreme Court at the National Archives; and Blanch Freedman's "George [sic] Boutilier"
file in the American Committee for the Protection of the Foreign Born (ACPFB) Papers,
Joseph A. Labadie Collection, University of Michigan, Ann Arbor, Michigan. According to
these sources, Boutilier was born in Sheet Harbour, Nova Scotia, in 1933. Robert Brown
was Boutilier's lawyer in the 1959 sodomy case; Boutilier spoke with Sarsfield in 1964
without a lawyer present; by 1965 Freedman was acting as his primary lawyer (with Brown's
assistance).
39. Nicknamed "Pope Kaufman" because of his "authoritarian demeanor," the judge
was known to be a great admirer of Federal Bureau of Investigation (FBI) director J. Ed-
gar Hoover, who played key roles in both Scares. According to Ronald Radosh and Joyce
connections to the Rosenbergs. The daughter of immigrants, a committed
socialist and civil libertarian, and the wife of a man with similar politics,
Freedman had been the executive secretary of the Women's Trade Union
League in the 1940s and was affiliated with the American Committee for
the Protection of the Foreign Born (ACPFB) and the National Conference
to Defend the Bill of Rights. In the 1940s she had received significant pub-
lic attention for defending thirty-seven men of South Asian descent who
claimed British nationality but were threatened with deportation to Paki-
stan; in the 1950s she had represented aliens accused of being communists,
winning one such case before the Supreme Court; and later in the 1950s
she had acted as W. E. B. Du Bois's lawyer when the State Department
refused to renew his passport unless he signed an anticommunist statement.
Freedman was also the law partner of Gloria Agrin, who had assisted in
the Rosenberg defense. According to one of the Rosenberg sons, Freedman
took over the work of their law practice so that Agrin could work full-time
on the successful effort to grant custody of the two Rosenberg children
first to their grandmother and then to the couple that their parents had
designated. More than a decade later, Freedman was arguing for Boutilier
40
in Kaufman's courtroom.
Milton, Kaufman "participated in highly improper ex parte communications with various

individuals connected with the prosecution" of the Rosenbergs. They also note that the
judge's involvement in the Rosenberg case may have frustrated his ambition to be appointed
to the Supreme Court (and delayed his appointment to the Court of Appeals until 1961).
Ronald Radosh and Joyce Milton, The Rosenberg File: A Searchfor the Truth (New York:
Holt, Rinehart and Winston, 1983), 277, 287-89. See also 276-90, 411-12, 428-31, 533,
571-72; D'Emilio, Sexual Politics,40-53; Johnson, The Lavender Scare; Robert Meeropol
and Michael Meeropol, We Are Your Sons: The Legacy of Ethel and Julius Rosenberg, 2d
ed. (1975; Urbana: University of Illinois Press, 1986), 370-83; Bruce Allen Murphy, The
Brandeis/FrankfurterConnection: The Secret PoliticalActivities of Two Supreme Court
Justices (New York: Oxford University Press, 1982), 330-38. I thank Henry Abelove for
first calling my attention to Kaufman's connection to the Rosenberg case.
40. On Agrin, see Radosh and Milton, The Rosenberg File, 191, 319, 343, 385, 402,
414-15,422,535-36; Meeropol and Meeropol, We Are Your Sons, 265,270,286. Members of
Freedman's family (including Allen Young, Michael Freedman, Paul Laven, and Anne Laven)
and Michael Meeropol supplied some of the biographical information in correspondence,
22 Mar.-18 Apr. 2001. See also "Administration, Legal Counsel: Freedman, Blanch, 1955"
File, ACPFB Papers; Civil Liberties Docket, Oct. 1955 to Jul. 1957; NYT 27 Jan. 1938,
23; 2 Feb. 1941, D4; 8 Oct. 1943, 16; 24 Apr. 1945, 20; 8 May 1945, 33; 13 Jun. 1945,
39; 21 Oct. 1947, 2; 7 Jun. 1949, 3; 24 Aug. 1949, 15; 23 Jan. 1952, 27; 11 Aug. 1954, 16;
1 Feb. 1955, 12; 20 Oct. 1955, 14; 25 Oct. 1955, 19; 2 Mar. 1957, 22; 9 Oct. 1957, 8; 17
Apr. 1967, 37. According to family members, Freedman was born in 1908 and was the only
woman in her class at Saint John's University Law School. The ACPFB, founded in 1933
and dissolved in 1982, assisted a variety of leftist unions, organizations, and individuals.
The Subversive Activities Control Board listed the ACPFB as a subversive organization in
the 1950s.
As the case worked its way through the courts, four questions emerged
as central: (1) did Congress intend to exclude all homosexual aliens? (2)
did Congress intend to defer to medical authority in the procedures estab-
lished? (3) was the phrase "psychopathic personality" unconstitutionally
vague? and (4) was homosexuality defined by conduct or character? The
first question concerned one aspect of legislative intent. While Boutilier's
opponents argued that Congress intended to exclude all homosexuals, his
supporters insisted that Congress, in using the term "afflicted " and requir-
41
ing PHS examinations, was not so categorical.
The second question, which concerned a different dimension of legisla-
tive intent, focused on how Congress wanted psychiatric terms to be used
in legal contexts. 42 Boutilier's opponents argued that legal conceptions
were most important and that, according to these, all homosexuals were
psychopathic. His defenders argued that by requiring medical examinations,
Congress stipulated that legal decisions should defer to scientific author-
ity. Because Boutilier had not been examined by the PHS, they argued, he
had been denied his rights. Moreover, two private psychiatrists, Edward
Falsey and Montague Ullman, had examined Boutilier and concluded that
he was not psychopathic. Boutilier's supporters also submitted statements
by an extraordinary collection of scientific experts, including Sigmund
Freud, Alfred Kinsey, and Margaret Mead, who claimed that homosexuality
was not, per se, a sign of psychopathology. Even some of the PHS's own
41. The texts used in debating legislative intent included congressional reports and PHS
submissions. See, for example, S. 1515, 81st Cong., 2d Sess., 345 (1950); S. 3455, 81st
Cong., 2d Sess., §212(a) (1950); S. 716, 82d Cong., 1st Sess., §212(a) (1951); H.R. 2379,
82d Cong., 1st Sess. §212(a) (1951). In 1952, on the advice of the PHS, the Senate Judiciary
Committee concluded that the term "psychopathic personality" was "sufficiently broad to
provide for the exclusion of homosexuals and sex perverts." The Senate report made clear
that this "is not to be construed in any way as modifying the intent to exclude all aliens who
are sexual deviates." See S. Rep. No. 1137, 82d Cong., 2d Sess., 9 (1952). House reports
contained similar references. See H.R. 2379, 82d Cong., 1st Sess., §212(a) (1951); H.R.
Rep. No. 1365, 82d Cong., 2d Sess., 45-56 (1952). The latter, for example, accepted the
PHS's recommendation that the term "psychopathic personality" be used to "specify such
types of pathologic behavior as homosexuality or sexual perversion." Legislative reports
from 1965, when Congress excluded "sexual deviates," were also cited in this debate. See
S. Rep. No. 748, 89/90th Cong., 1st Sess. 18-19 (1965); H.R. Rep. No. 745, 89/90th Cong.,
1st Sess., 16 (1965).
42. This question was part of a larger debate about the scope and limits of scientific and
medical authority in twentieth-century politics and law. See Ronald Bayer, Homosexuality
and American Psychiatry: The Politics of Diagnosis (New York: Basic, 1981); Elizabeth
Lunbeck, The PsychiatricPersuasion:Knowledge, Gender and Power in Modern America
(Princeton: Princeton University Press, 1994); David J. Rothman, Strangersat the Bedside:
A History of How Law and Bioethics Transformed Medical Decision Making (New York:
Basic, 1991).
doctors concurred with this position. Essentially, Boutilier's defenders

were arguing that since the overwhelming scientific and legal consensus
on homosexuality had broken down between the early 1950s and the late
1960s, what ought to be determinative was not the automatic exclusion
but the automatic deference to science.
The third conflict focused on the principle that laws too vague to be
understood by ordinary people are unconstitutional because they violate
due process rights. Boutilier's opponents argued that the legal meaning
of "psychopathic personality" was clear and that the question of whether
Boutilier had fair warning that his actions in the United States might lead
to trouble was irrelevant since he was being excluded not because of post-
entry behavior but because of pre-entry character. Boutilier's defenders
argued that even if Congress meant to exclude homosexuals, accomplish-
ing this through vague language deprived Boutilier of the opportunity to
modify his behaviors.
The fourth conflict centered on definitions of same-sex sexualities. While
the INS and its supporters argued that homosexuality should be thought
of as a condition or characteristic, Boutilier's defenders argued that ho-
mosexuality was best understood as a matter of conduct or behavior. As a
condition or characteristic, homosexuality might be viewed as a defining
feature of individual identity, an innate and unchanging essence of the
self. As a behavior, homosexuality could be understood as independent of
sexual identity, as a course of action that anyone might choose. (Interest-
ingly, these are the opposite positions taken in most gay rights cases today,
when gay rights supporters usually argue that homosexuality is an inborn
and fixed character trait and gay rights opponents are more likely to see
homosexuality as a behavioral lifestyle choice.) In this conflict, Boutilier's
sexual history was key.
INS investigator James Sarsfield's examination of Boutilier was critical
in this regard. Sarsfield began by stating, "I desire to question you under
oath regarding your homosexual activities." Asked to define "homosexual
activity or homosexual acts," Boutilier replied, "Acts of two people of the
same sex." When Sarsfield inquired about the acts that led to his 1959 ar-
rest, Boutilier responded, "I inserted my penis in his rectum and had an
orgasm.... [L]ater I put my penis in his mouth and had a blowjob." Next
Sarsfield asked about Boutilier's years in Canada. Boutilier reported that
he first had sex with a man when he was approximately fourteen years of
age and living in Nova Scotia. The man, he said, was about forty years
old: "We had planned a hunting trip and I stayed at his home that night,
his wife was away, and we shared the same bed. He tried to put his penis
in my rectum. He didn't succeed but a flow of sperm came from his penis
on my clothing." Boutilier stated that his next "homosexual" act took place
two years later, at a public park in Nova Scotia, when a man in his early
thirties gave him a "blowjob." He then reported that between the ages of
sixteen and twenty-one, while still in Canada, he had "homosexual" sex
("all blowjobs") three to four times a year and sex with women three or four
times in total. Asked about his activities after moving to the United States,
Boutilier claimed that he had sex with men three to four times a year and
beginning in 1959 shared a Brooklyn apartment with Eugene O'Rourke,
with whom he had sex two or three times a year. The final questions dealt
with the draft. Discussing why he had been classified 4F in 1957, Boutilier
declared, "I'm homosexual." Sarsfield then asked, "Did they just accept
your statement that you're a homosexual?" Boutilier replied, "After filling
out the forms and asking the questions, I was sent to see a psychiatrist
and as a result I'm classified 4F." Asked if he had anything further to add,
Boutilier declared, "I plan to seek medical help and I guess that's about
it. Due to the finances I couldn't get around to get this medical help be-
fore this. '43 This exchange is fascinating in many respects, especially if
Boutilier's answers are interpreted as strategic responses elicited in the
constrained circumstances of an interrogation, but of particular relevance
here is the fact that Sarsfield's questions focused mostly on conduct, not
character.
In the Second Circuit Court, the majority and minority opinions made
different uses of this evidence, but they concurred in judging homosexual-
ity negatively and neither brought homosexuality within the purview of
constitutionally protected rights. In a footnote to his majority (two-to-one)
decision, Judge Kaufman responded to his colleague's dissent: "Although
[Judge Leonard Moore's] plea for 'clemency' is quite moving, it is illustra-
tive of the ease with which one can succumb in a case such as this to the
temptation of permitting the emotions to overwhelm reason and enacted
law. Congress has made its judgment, for better or worse, respecting the
exclusion of homosexuals which we are not at liberty to alter." Kaufman's
next sentence responded even more directly to the dissent, which cited
sexologist Alfred Kinsey's estimate that "'at least 37 per cent' of the Ameri-
can male population has at least one homosexual experience" and which
argued that labeling "excludable" such a large group of aliens would be
"tantamount to saying that Sappho, Leonardo da Vinci, Michelangelo, An-
dre Gide, and perhaps even Shakespeare, were they to come to life again,
would be deemed unfit to visit our shores." To this, Kaufman replied, "The
dissent's parade of distinguished historical personages allegedly possess-
43. Some of the information obtained by Sarsfield is at odds with information recorded in
Dr. Ullman's letter and the information included in the affidavit that Boutilier signed before
INS officer Ceil Brathwaite on 9 Sep. 1963, Boutilier file, ACPFB Papers.
ing homosexual attributes does not detract one iota" from the conclusion
that Congress meant to exclude homosexuals and "there is little doubt
that some of these eminent gentlemen would be excludable." Kaufman's
footnote concluded: "Thus, while the house of horrors erected by our dis-
senting brother stimulates the imagination and arouses our sympathy, it
is largely irrelevant. Congress ...did not authorize immigration officials
to conduct a detailed psychiatric examination into the nature, frequency
and variety of a particular homosexual's acts. . .. And, neither citations
to the Sonnets of Michelangelo and Campanella, to the New York Times,
nor even to Annie Get Your Gun will aid us in our statutory interpretation
or change this simple fact of life." Kaufman's campy choice of words
reproduced common tropes of antigay prejudice: homosexuality had the
power to overwhelm; it was profoundly emotional and threatened reason;
it caused erections that were arousing but horrifying; it challenged the facts
of life. Homosexuality could even turn Sappho, the lesbian poet of ancient
Greece, into a gentleman, and lead Annie to get a gun. 44
As for conduct and character, Kaufman argued it both ways. In the
very first words of his opinion, he declared, "Although a relatively young
segment of contemporary society prides itself on its readiness to cast off
conventional and tested disciplines and to experiment with non-confor-
mance and the unorthodox merely to set out its contempt for traditional
values, certain areas of conduct continue to be as controversial in modem
and beau monde circles as they were in bygone and more staid eras [em-
phasis mine]." This formulation linked homosexuality with the young, the
unconventional, the undisciplined, the experimental, the nonconforming,
the unorthodox, the contemptuous, and the nontraditional, while suggesting
that even in these circles homosexuality was controversial. Significantly,
Kaufman referred to homosexuality here as a matter of conduct, though
only pages later he based his decision on the argument that "The [1952
Immigration Act] provision was never designed to regulate conduct; its
function was to exclude aliens possessing certain characteristics[empha-
ses in original]." On one level Kaufman was contradicting himself, but on
45
another he was using evidence of conduct as proof of character.
Judge Moore emphasized in his dissent that homosexuality was best
understood in behavioral terms, but he, too, contributed to negative assess-
44. Boutilierv. Immigration and NaturalizationService, 363 F2d 488, 496-98 (2nd Cir.
1966). Moore did offer these citations, writing at one point that "When so many efforts
...are being made to discover how the human race can become adjusted to doing what
should come naturally, cf. Berlin, Annie Get Your Gun 21 (1947), it must be realized that
sexual gratification is often achieved in divers ways which may well deviate from popular
conceptions of a norm" (499).
45. Boutilier,363 F.2d 488, 489-90, 495.
ments of homosexuality, even while arguing in favor of Boutilier. Moore

invoked the ubiquity of homosexual behaviors to explain why he could not
"impute to Congress an intention.., to cover anyone who had ever had a
homosexual experience." With respect to Boutilier, Moore wrote that "the
most adverse conclusion" was that he had "engaged in sexual activity on
a quite infrequent basis with both men and women" before coming to the
United States. In contrast, "The term 'sexual deviate' suggests someone
with a long-lasting and perhaps compulsive orientation towards homosexual
or otherwise 'abnormal' behavior." In the same section, Moore quoted one
source that defined psychopathic personalities with reference to "lifelong
patterns" and another that referred to "a life-long.., tendency." Moore thus
disagreed with Kaufman about whether Congress intended to exclude all
homosexuals, particularly if the behavior was infrequent or a passing phase,
46
but he expressed more ambivalence about long-term homosexuals.
While Moore emphasized that homosexuality was best understood
as a behavior, he used behavioral evidence to make positive judgments
about Boutilier's character. Here, too, he endorsed negative judgments
about homosexuality in the course of trying to save Boutilier. According
to Moore, Boutilier's actions never "put him in repeated conflict with the
authorities," his sexual activities were "consensual acts between adults,"
and they took place "almost always in private." He contrasted Boutilier's
situation with another case that involved "blatant exhibitionist solicitation
in public." Moreover, had Boutilier known that "sexual deviation" would
be "automatic grounds for exclusion," he could have "modified his behav-
ior." The evidence for this was that Boutilier was "young, intelligent, and
responsible" and that he had had sex with women. Moore also pointed
out that Boutilier had "worked hard and gainfully" since coming to the
United States, was "respected in his work," and had several close relatives
(including his mother, stepfather, and three siblings) living in the States.
In defending Boutilier, Moore was arguing against homosexuals who were
less private; less young, intelligent, and responsible; less hard-working;
47
and less familial.
Shortly after losing before the Second Circuit Court, Boutilier's lawyers
appealed to the Supreme Court. Signing the government's briefs against
Boutilier at this stage was civil rights hero Thurgood Marshall, who had
been appointed solicitor general by Lyndon Johnson. Joining the Court in
1967, shortly after Loving and Boutilier were decided, Marshall later voted
with the liberal majorities in Eisenstadt, Roe, and a variety of obscenity
cases. But before being in a position to do so, and in a period when John-
46. Ibid., 496-98.

47. Ibid., 496, 499.
son and his advisors were testing Marshall to decide whether to appoint
him to the Court, Marshall argued the case against Boutilier. 48 Once again,
Boutilier's supporters and opponents squared off against one another but
joined together in promoting negative ideas about homosexuality. Accord-
ing to the government's brief, homosexuality was a "condition," but one
that could be assessed on the basis of behaviors. As the brief noted, "The
statutory ground for expulsion was not the alien's conduct after entry, but
his condition at the time of entry." And the evidence establishing Boutilier's
homosexuality was not "meagre and fragmentary," which was the claim
of Boutilier's lawyer, but "overwhelming." Boutilier "had had occasional
heterosexual experiences," but they "hardly detract from his clearly-and
concededly-dominant homosexual orientation." For Boutilier's opponents,
conduct proved condition.
The government took the view that even respectable homosexuals should
be excluded. As Marshall's brief observed, "The vagueness doctrine is not
a device to enable an individual afflicted with a condition that if discovered
would have barred his admission to this country so to conduct himself as
to avoid making his condition known." In fact, while Boutilier's supporters
highlighted his public respectability, the government emphasized concerns
about homosexuality's potentially private (and thus non-detectable) nature.
Marshall's brief quoted a statement by the PHS on this issue:
In some instances considerable difficulty may be encountered in substantiating
a diagnosis of homosexuality or sexual perversion. In other instances where
the action and behavior of the person is more obvious, as might be noted in
the manner of dress (so-called transvestism or fetishism), the condition may
be more easily substantiated. Ordinarily, a history of homosexuality must
be obtained from the individual, which he may successfully cover up. Some
psychological tests may be helpful in uncovering homosexuality of which the
individual, himself, may be unaware.... The detection of persons with more
obvious sexual perversion is relatively simple. Considerably more difficulty
may be encountered in uncovering the homosexual person.
In other words, privacy for homosexuality was dangerous insofar as it might
allow deceptively respectable homosexuals to gain entry to the country.
The reasoning here helps clarify the logic of Griswold: privacy was a
positive public good when claimed by married heterosexuals but a nega-
tive secret evil when used by homosexual aliens. Such aliens were not just
excluded from the privileges of privacy but were subject to the demands
of compulsory publicity.
Boutilier's lawyer Blanch Freedman disagreed with the government on
48. While Marshall's signature does not prove that he wrote the briefs, it justifies attribut-
ing the brief to him.
many points, but in trying to reject the law's application to Boutilier she
contributed to the negative consensus on homosexuality. Drawing on the
work of Kinsey and Clarence Tripp, she observed that "homosexuality is
a kind of behavior, evidently very wide-spread, and not the manifestation
of a particular kind of person." Objecting to the notion that "there is some
kind of recognizable human being that is a 'homosexual'-like one might
recognize a 'red-head,"' Freedman insisted that there was no evidence
about Boutilier's "psychological or physical condition" but only proof of
his "behavior, that is, of a number of homosexual experiences."
While these claims were not particularly negative, Freedman proceeded
to endorse the distinction between respectable and non-respectable homo-
sexuals. Because the statutory language was so vague, she argued, Boutilier
was deprived of "the opportunity to refrain from homosexual practices
after his entry," which "he was well able to do." She continued, "For there
is nothing in the record to establish or even suggest that those experi-
ences were compulsive in character and not merely a matter of choice."
Ultimately, Freedman downplayed evidence of Boutilier's gay identity,
this despite the fact that he had declared himself "a homosexual." In oral
arguments, she stated, "Petitioner has concealed nothing because he has no
condition." In her briefs, she wrote, "Insofar as his sexual behavior prior
to entry is concerned, petitioner testified that he had been heterosexual
also." She concluded that her opponents had provided no sense of whether
"there would have been any difference.., had petitioner experienced but
two homosexual acts per year prior to entry, or only one such act, or even
none." Did the restriction cover those who engaged in homosexual practices
on a "rare or infrequent" basis, Freedman asked, and those who engaged
in it "continuously and flagrantly"? To support this argument, Freedman
cited the report submitted by Dr. Ullman:
The patient has sexual interest in girls and has had intercourse with them. ...
What emerged out of the interview was not a picture of a psychopath but that
of a dependent, immature young man with a conscience, an awareness of the
feelings of others and a sense of personal honesty. His sexual structure still
appears fluid and immature so that he moves from homosexual to heterosexual
interests as well as abstinence with almost equal facility .... My own feeling
is that his own need to fit in and be accepted is so great that it far surpasses
his need for sex in any form.
Freedman was arguing this point in part to prove that the INS had relied
on post-entry behavior rather than pre-entry character. But she was using
a psychiatric evaluation that reproduced the trope of homosexuality as a
form of arrested development. The ACLU/NYCLU brief added, "It seems
incredible to suggest ... that, if Boutilier had lived a life of impeccable
conventional morality between 1955 and 1964, the post-entry years, the gov-
ernment would have initiated its deportation proceedings." In making these

arguments, Boutilier's lawyers ran the risk of winning rights only for mature
homosexuals who lived lives of "impeccable conventional morality."
These arguments were elements of a strategy of respectability used by
Boutilier's supporters. One part of this strategy involved deferring to sci-
entific authority. For instance, the HLRS brief, written by Philadelphia
lawyer Gilbert Cantor, contained the views of twenty-eight "experts" who 49
rejected the view that homosexuality was by definition a psychopathology.
Challenging "the abuse of psychiatric terminology for the purpose of social
control" and warning of the dangers of the "therapeutic state," the Society
nevertheless placed its hopes in the "triumph of scientific knowledge over
'folk knowledge."' Boutilier's supporters were willing to put the fate of
homosexual immigrants in the hands of medical doctors.
Along similarly respectable lines, Boutilier's advocates constructed a
sympathetic biographical portrait of Boutilier, who was presented as a good
farm boy; devoted to work, family, and church; and honest to a fault. Ac-
cording to this portrait, Boutilier had grown up as the second oldest child
and the oldest son in an economically struggling farm family with six
children; he had dropped out of school at age thirteen to help support his
family; and he had been victimized first by his parents' contentious mar-
riage and divorce and then by his first male sexual partner. In the United
States he had been "self-supporting," working "steadily" as a building
maintenance man and "responsibly" as an attendant/companion of a man
who was mentally ill. When discussing his sexual activities, Boutilier's
supporters pointed out that he had had sex with both women and men, he
had not sold or purchased sex, he had almost always had sex in private,
he had engaged in sex quite infrequently (even when living with another
"homosexual" man), he had told the truth when questioned, and he was
interested in medical help. They emphasized that their client was from
Canada (a neighboring country closely allied with and demographically
similar to the United States); he had come to the United States with his
family; his mother and stepfather were U.S. citizens (in a context where
immediate family members generally received preferential treatment under
U.S. immigration law); his siblings were married and had children; his
brothers were serving in the U.S. military; he lived in the same building
(and later the same apartment) as his parents; and his social activities
included going to church and bowling. (They did not mention that he had
tested positive for syphilis in 1961 .)50 In the context of this strategy, it may
49. In addition to the HLRS brief, see HLRS press release, 12 Jan. 1967; correspondence,
17-18 Nov. 1966, Boutilier file, ACPFB Papers.
50. On Boutilier and syphilis, see notes in Freedman's Boutilier file, ACPFB Papers.
have helped that Sarsfield's interrogation suggested that Boutilier played

the historically "masculine" (insertive) roles in his sexual activities. It also
may have helped that Boutilier was Anglophone and Christian and that his
lawyer was a woman, whose presence effectively heterosocialized and do-
mesticated her male client. In these and other ways, Boutilier's supporters
conveyed a sense that he was a desirable immigrant from the standpoint of
dominant U.S. values. In using this strategy, they reinforced those values
while trying to save Boutilier.
Order in the Court
The members of the Supreme Court who considered the arguments in

Boutilierwere not encountering same-sex sexualities for the first time. Two
justices, William 0. Douglas and Hugo Black, had served on the Court
in the 1940s with Frank Murphy, who was rumored to be gay. Journalists
Joyce Murdoch and Deb Price have identified twenty-two gay and lesbian
Supreme Court clerks, the earliest of whom served in the 1950s. Accord-
ing to Murdoch and Price, Justice Tom Clark had a gay nephew, whom
he knew to be gay and whom he treated "like a beloved son." All of the
justices knew about the 1964 arrest and resignation of President Johnson's
long-time aide Walter Jenkins, a married man with six children who was
twice caught having sex with a man in a YMCA restroom. According to
Douglas's widow, Douglas had "many friends" who were gay and viewed
homosexuality as part of the "tapestry of life." Douglas wrote in his au-
tobiography about a college friend who "expressed his sexual interest"
in the future justice "in an unmistakable way," about knowing a senator
and an undersecretary of state who were "reputed" to be gay, and about
the use of Lafayette Park in Washington, D.C., as a "meeting place for
homosexuals." Moreover, Douglas had a "decades-long friendship" with
an openly lesbian couple who were his neighbors in Washington state. Not
all of the justices were as friendly. According to Black's son, Black told
him that when he worked as a police court judge in Alabama, he handled
a case in which a man charged with assault claimed that his victim had
"made advances." After the victim failed to deny the accusation, Black
"threw out the charges and found the pervert guilty of disorderly conduct
and gave him the maximum sentence." "That kind of thing will destroy a
society, Son," Black reportedly said.5"
51. Murdoch and Price, Courting Justice, 117; Cathy Douglas Stone, cited in Murdoch
and Price, CourtingJustice, 128; William 0. Douglas, Go East Young Man: The Early Years
(New York: Random House, 1974), 104-5; Murdoch and Price, CourtingJustice, 129; Hugo
Nor were the justices encountering Supreme Court cases concerning
same-sex sexualities for the first time. In One (1958) and Manual Enter-
prises (1962), the Court ruled against the censorship of magazines with
gay content. In Rosenberg (1963), the Court vacated a lower court's rul-
ing against a gay alien on the technical point that George Fleuti's return
from a one-day trip to Mexico in 1956 did not constitute re-entry and that
Fleuti's entry date therefore should be regarded as 1952 (before the relevant
legislation took effect). In Mishkin (1966), the Court affirmed an obscen-
ity conviction in a case involving representations of "homosexuality" and
"lesbianism." In at least fifteen other pre-Boutilier gay cases concerning
immigration, the military, employment, obscenity, sodomy, and disorderly
conduct, the Court reviewed lower court rulings and either declined to hear
appeals or issued dismissals. And in 1966, the Court confronted not only
Boutilier's appeal, but also the INS's appeal of Lavoie, a gay immigration
ruling by the Ninth Circuit Court that conflicted with the Second Circuit's
ruling in Boutilier In October 1966 the Court voted to delay a decision
on whether to hear Boutilieruntil the appeal in Lavoie reached the Court.
52
When it did, the Court decided to focus on Boutilier
Boutilier reached the Supreme Court during a period in which the Court,
despite the respectable public image that it cultivated, had become signifi-
cantly sexualized in a variety of ways. From 1965 to 1973, the justices
heard a variety of cases concerning abortion, birth control, cohabitation,
interracial marriage, nonmarital reproduction, obscenity, rape, and same-
sex sexualities. In these years Douglas's four marriages (the latter three to
women much younger than he), three divorces (the Court's first three), and
multiple extramarital affairs were the subject of significant public discus-
sion (and calls for impeachment). Court staff were kept busy ensuring that
Douglas's wives did not encounter his lovers on visits to the Court building
and that the Court was not sullied by allegations concerning Douglas's
unwanted sexual advances to associates, secretaries, and visitors. Before,
Black, Jr., My Father: A Remembrance (New York: Random House, 1975), 128. See also
Murdoch and Price, 18-21, 23, 78-79, 85, 99-101, 108, 117-21, 128-31, 142, 147-48,
244-51, 531-32.
52. One v. Oleson, 355 U.S. 371 (1958); Manual Enterprisev. Day, 370 U.S. 478 (1962);
Rosenberg v. Fleuti, 374 U.S. 449 (1963); Mishkin v. New York, 383 U.S. 502 (1966); Ba-
bouris v. Esperdy, 362 U.S. 913 (1960); Ganduxe y Marino v. Esperdy, 364 U.S. 824 (1960);
Kameny v. Brucker 365 U.S. 843 (1961); Womack v. United States, 365 U.S. 859 (1961);
Shields v. Sharp, 366 U.S. 917 (1961); Hudson et al. v. Esperdy, 368 U.S. 918 (1961);
Wyngaard v. Kennedy, 368 U.S. 926 (1961); Williams v. Zuckert, 371 U.S. 531 (1963); Ca-
plan v. Korth, 373 U.S. 915 (1963); Darnell v. United States, 375 U.S. 916 (1963); Poore
v. Mayer 379 U.S. 928 (1964); Dew v. Halaby, 379 U.S. 951 (1964); Chamberlainv. Ohio,
385 U.S. 844 (1966); Robillardv. New York, 385 U.S. 928 (1966); Lavoie v. INS, 387 U.S.
572 (1967), 400 U.S. 854 (1970).
during, and after this period the Court provided noteworthy opportunities
for workplace romance: Black married his secretary in the 1950s, William
Brennan did so in the 1980s, and an interracial relationship between two
Court employees (a black male laborer and a white female clerk) was a
source of controversy beginning in 1972. According to a long-time member
of Douglas's staff, "Other Justices ...had mistresses ....but they would
employ them as secretaries or keep them away from the Court building."
Meanwhile, many of the justices and their clerks regularly gathered in the
Court building's basement to review movies and other materials that were at
issue in obscenity cases. According to one biography, Thurgood Marshall,
after he joined the Court, "always took a front-row seat and wisecracked
loudly" and "if the action on-screen got especially heated, he would com-
ment on the performance and even ask for a copy of the film so he could
have it to show his kids when they reached college age." Murdoch and Price
write that John Harlan, "nearly blind with cataracts," not only held "graphic
pictures two inches from his face-a fact that continually amused him," but
purposely sat beside "prudish colleagues" during the movie showings and
"insist[ed] on hearing a blow-by-blow description." "Oh, extraordinary,"
he would exclaim. In the midst of these rulings, Playboy founder Hugh
Hefner apparently sent Brennan at least one pornographic card "with love
and kisses." Abe Fortas joked in a 1966 memo to Brennan that he was
"glad to join you and Fanny Hill." In 1967, Fortas wrote humorous verses
with references to miscegenation, bigamy, and cunnilingus that he sent
to Douglas while the Court was considering Loving. Douglas once joked
that the reason the Court seemed to be moving in a liberal direction in
obscenity cases was that the Court's standard was "whether the material
arouses a prurient response in the beholder." As he explained, 'The older
we get, the freer the speech." In 1972, assistant clerk W. V. Gullickson
wrote embarrassed memos to the Court's other clerks and the Chief Justice,
expressing concerns about missing "exhibits in obscenity cases," includ-
ing five magazines, one roll of film, a deck of cards, and a book. And in
February 1973, NationalLampoon featured a centerfold cartoon depicting
the justices engaging in a variety of transgressive cross-sex, same-sex,
interracial, cross-species, sadomasochistic, exhibitionist, cross-dressed,
oral, and pedophilic sexual activities.53
53. Harry Datcher, cited in Bruce Allen Murphy, Wild Bill: The Legend and Life of Wil-
liam 0. Douglas (New York: Random House, 2003), 368; Michael D. Davis and Hunter R.
Clark, Thurgood Marshall:Warriorat the Bar,Rebel on the Bench (New York: Birch Lane,
1992), 281; Murdoch and Price, Courting Justice, 78; Hugh Heffner to William Brennan,
c. 1966, Box 135, William Brennan Papers, Library of Congress; Fortas to Brennan, 10
Feb. 1966, Box 139, Brennan Papers; Fortas to Douglas, 10 Apr. 1967, Box 1379, Douglas
Papers; Douglas, cited in Harry S. Ashmore, "Doubling the Standard," Virginia Quarterly
According to the biographical literature on the justices, the Court's

members in the 1965-67 terms approached their cases having been fully
immersed in the institutions, practices, discourses, problems, and anxieties
of mid-century heterosexuality, marriage, and procreation. Collectively, the
eleven justices who served in these years were married seventeen times
and had (according to available records) twenty-six biological children.
The justices' parents had had fifty-five children (according to available
records), suggesting that the justices limited their reproductive sexual ac-
tivities (probably through the use of contraception or other birth control
strategies) to a far greater extent than their parents had. The justices were
the children of unhappy, contentious, and separated marriages (Douglas,
Harlan, and Warren); their parents conceived children before marriage
(Marshall); they enjoyed sexual adventures in their youths (Black and
Marshall); their hopes of marrying across religious lines were blocked
by disapproving parents (Black); they married in spite of parental objec-
tions (Black); they kept their marriages secret from their parents (Brennan)
and universities (Douglas) and their courtships secret from their children
(Black); they married across religious and racial lines (Fortas and Marshall);
they married widows and divorcees (Douglas, Fortas, Harlan, and Warren);
they had extramarital relationships (Douglas, Fortas, and Marshall); they
conceived children premaritally (Marshall); they took testosterone shots
to increase their virility (Black); they and their wives had difficulty having
children (White); their wives had miscarriages and hysterectomies (Black
and Marshall); their wives volunteered for Planned Parenthood (Stewart);
their wives had drinking problems (Stewart); their wives counseled a fu-
ture first lady about her husband's sexual affairs (Black); they beat their
wives (Douglas); their wives killed themselves (Black); and they had their
54
personal papers destroyed to protect their privacy (Black and White).
Review 62 (Winter 1986), 71; W. V. Gullickson to the Law Clerks, 9 Feb. 1972, and to War-
ren Burger, 14 Feb. 1972, Box 78, Thurgood Marshall Papers, Library of Congress. See
also Laura Kalman, Abe Fortas:A Biography (New Haven: Yale University Press, 1990),
320; Murdoch and Price, CourtingJustice, 126; Woodward and Armstrong, The Brethren,
76, 129, 193, 244, 279.
54. Douglas married four times; Black, Brennan, and Marshall each married twice; the
other seven justices each married once. Warren had five biological children and a stepchild;
Black had four biological children and a stepchild; Fortas had no children; the other justices
each had one, two, or three biological children. See Howard Ball, A DefiantLife: Thurgood
Marshalland the Persistenceof Racism in America (New York: Crown, 1998); Howard Ball,
Hugo L. Black: Cold Steel Warrior (New York: Oxford University Press, 1996); Howard
Ball, The Vision and the Dream of Justice Hugo L. Black: An Examination of a Judicial
Philosophy (University: University of Alabama Press, 1975); Howard Ball and Phillip J.
Cooper, Of Power and Right: Hugo Black, William 0. Douglas, and American's Constitu-
tional Revolution (New York: Oxford University Press, 1992); Hugo L. Black and Elizabeth
These experiences did not necessarily determine, in direct and linear ways,
how the justices voted in particular cases. Eva Rubin has argued that "the
most likely source of the image of family life depicted in the [Court's]
opinions," an image that she describes as "idealized" and "mythological,"
was "the personal family experience of the Justices themselves." But if
the justices romanticized the familial "haven in the heartless world," they
may have done so precisely because their own havens sometimes proved
rather heartless. In turn, the Court reproduced idealized familial images
not only in its opinions, but also in its courtroom, where seats with brass
nameplates were reserved for "Mrs. Warren" and each of the justices' wives.
As the middle-class heteronormative American family and the families of
the justices experienced new pressures and possibilities in the 1960s and
1970s, the Court granted them new protections and privileges while af-
firming the discriminatory policing of sexual borders.5"
Black, Mr Justice andMrs. Black: The Memoirs ofHugo L. Black andElizabeth Black (New
York: Random House, 1986); Hugo Black, Jr., My Father:A Remembrance (New York:
Random House, 1975); Hunter R. Clark, Justice Brennan:The Great Conciliator(New York:
Birth Lane, 1995); Vern Countryman, The JudicialRecord of Justice William 0. Douglas
(Cambridge: Harvard University Press, 1974); Ed Cray, ChiefJustice: A Biography of Earl
Warren (New York: Simon and Schuster, 1997); Davis and Clark, Thurgood Marshall;Wil-
liam 0. Douglas, The Court Years, 1939-1975: The Autobiography of William 0. Douglas
(New York: Random House, 1980); William 0. Douglas, The Douglas Letters: Selections
from the PrivatePapersof Justice William 0. Douglas, ed. and intro, by Melvin I. Urofsky,
with Philip E. Urofsky (Bethesda, Md.: Adler and Adler, 1987); Douglas, Go East; Gerald
T. Dunne, Hugo Black and the JudicialRevolution (New York: Simon and Schuster, 1977);
James C. Duram, Justice William 0. Douglas (Boston: Twayne, 1981); Kim Isaac Eisler,
A Justice for All: William J. Brennan, Jr., and the Decisions That Transformed America
(New York: Simon and Schuster, 1993); Tony Freyer, Hugo L. Black and the Dilemma of
American Liberalism (Glenview, Ill.: Scott, Foresman: 1990); Dorothy Goldberg, A Private
View of a PublicLife (New York: Charterhouse, 1975); Roger Goldman with David Gallen,
Justice William J. Brennan,Jr.: Freedom First(New York: Carroll and Graf, 1994); Jeffrey
D. Hockett, New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix
Frankfurther,and Robert H. Jackson (Lanham, Md.: Rowman and Littlefield, 1996); Dennis
J. Hutchinson, The Man Who Once Was Whizzer White: A Portraitof Justice Byron R. White
(New York: Free Press, 1998); Kalman, Abe Fortas;James E. Leahy, Freedom Fightersof the
United States Supreme Court: Nine Who Championed Individual Liberty (Jefferson, N.C.:
McFarland, 1996); James J. Magee, Mr. Justice Black: Absolutist on the Court (Charlot-
tesville: University Press of Virginia, 1980); David E. Marion, The Jurisprudenceof Justice
William J. Brennan, Jr.: The Law and Politicsof "LibertarianDignity" (New York: Rowman
and Littlefield, 1997); Murdoch and Price, Courting Justice; Bruce Allen Murphy, Fortas:
The Rise and Ruin of a Supreme Court Justice (New York: Morrow, 1988); Murphy, Wild
Bill; Roger K. Newman, Hugo Black: A Biography (New York: Pantheon, 1994); Robert
D. Richards, Uninhibited, Robust, and Wide Open: Mr. Justice Brennan's Legacy to the
FirstAmendment (Boone: Parkway, 1994); E. Joshua Rosenkranz and Bernard Schwartz,
Reason and Passion:Justice Brennan'sEnduring Influence (New York: Norton, 1997); Carl
Thomas Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall
In the end, the Court affirmed in Boutilierwhat it had earlier indicated

in Griswold, Fanny Hill, and Loving and what it would later confirm in
Eisenstadtand Roe: that its vision of sexual freedom, equality, and citizen-
ship privileged marriage, reproduction, and heterosexuality. Demonstrating,
however, that its decision was not inevitable, the Court nearly decided the
other way. According to notes in the justices' papers, when the Court met
for its preliminary vote, Earl Warren joined three other justices (Bren-
nan, Douglas, and Fortas) in siding with Boutilier. Black voted against
Boutilier but indicated that he was willing to change sides if the majority
voted that way. When it became clear that Boutilier had fallen one vote
short, Black affirmed his original choice. Later, Warren, who disliked five
to four decisions because he thought they weakened the authority of the
Court's rulings, changed his vote, resulting in a six to three ruling against
Boutilier. Boutilier lost the two justices who had voted conservative in
Griswold and liberal in Fanny Hill (Black and Stewart), the three justices
who had voted liberal in Griswold and conservative in Fanny Hill (Harlan,
White, and Clark), and one justice, Warren, who had voted liberal in both
56
Griswold and Fanny Hill.
As had been the case in the conflicting rulings of Kaufman and Moore in
the Second Circuit Court and the competing briefs of Marshall and Freed-
man, the Supreme Court's majority and minority opinions disagreed on
many points, but joined together in promoting negative judgments about
homosexuality. Invoking the race-based precedent of the Court's ruling
in favor of the Chinese Exclusion Act (and illustrating again the ways in
which race functioned as a "metalanguage" in legal discourse about sex),
(Boston: Little, Brown, 1993); Robert Shogan, A Question of Judgement: The Fortas Case
and the Strugglefor the Supreme Court (New York: Bobbs-Merrill, 1972); David Stebenne,
ArthurJ. Goldberg: New DealLiberal (New York: Oxford University Press, 1996); Stephen
Parks Strickland, ed., Hugo Black and the Supreme Court: A Symposium (Indianapolis:
Bobbs-Merrill, 1967); Melvin Urofsky, Supreme Court Justices:A Biography (New York:
Garland, 1994); Virginia van der Veer Hamilton, Hugo Black: The Alabama Years (Baton
Rouge: Louisiana State University Press, 1972); Stephan L. Wasby, ed., "He Shall Not
Pass This Way Again": The Legacy of Justice William 0. Douglas (Pittsburgh: University
of Pittsburgh Press, 1990); Weddington, A Question of Choice; Juan Williams, Thurgood
Marshall:American Revolutionary (New York: Times, 1998); Woodward and Armstrong,
The Brethren; Tinsley E. Yarbrough, John MarshallHarlan: Great Dissenter of the Warren
Court (New York: Oxford University Press, 1992).
55. Rubin, The Supreme Court, 190; Christopher Lasch, Haven in a HeartlessWorld. The
Family Besieged (New York: Basic, 1977); Murdoch and Price, Courting Justice, 171.
56. See Brennan notes, 17 and 27 Mar. 1967, Boxes 144-45, Brennan Papers; Douglas
notes, 17 Mar. 1967, Boxes 1373 and 1391, Douglas Papers; Warren notes, 17 Mar. 1967,
Box 382, Earl Warren Papers, Library of Congress. See also Murdoch and Price, Courting
Justice, 112-17.
Boutilierand the Supreme Court 525
Clark wrote for the majority, "It has long been held that the Congress has
plenary power to make rules for the admission of aliens and to exclude those
"Here,"
who possess those characteristics which Congress has forbidden."
he continued, "Congress commanded that homosexuals not be allowed to
enter." Establishing an equivalence between Chinese and homosexual aliens
by suggesting that both were defined by "characteristics" that could be "for-
bidden" by Congress, Clark indicated that homosexuals could be thought of
as an unwanted race. According to Clark, "Congress used the phrase 'psy-
chopathic personality' not in the clinical sense, but to effectuate its purpose
to exclude from entry all homosexuals and other sex perverts." Noting that
"the Government clearly established that petitioner was a homosexual at
entry," Boutilier "admitted" this fact, and "the existence of this condition
over a continuous and uninterrupted period prior to and at the time" of entry
was proven, Clark concluded, "When petitioner first presented himself at
our border for entrance, he was already afflicted with homosexuality. The
pattern was cut, and under it he was not admissible."57
Boutilier won the votes of the other three justices. Brennan dissented
for the reasons stated by Moore in the lower court ruling. Douglas, in an
opinion joined by Abe Fortas, began by declaring, "The term 'psychopathic
personality' is a treacherous one like 'communist' or in an earlier day 'Bol-
shevik.' A label of this kind when freely used may mean only an unpopular
person. It is much too vague." Invoking the specter of McCarthyism and
taking a stab at Kaufman for his role in the trial of the Rosenbergs, Douglas
referenced the very era, the early 1950s, which had been responsible for
the immigration statute. Observing that "it is common knowledge that in
this century homosexuals have risen high in our own public service-both
in Congress and in the Executive Branch-and have served with distinc-
tion," Douglas argued that it was "not credible" that Congress meant to
exclude "anyone who was a sexual deviate, no matter how blameless his
social conduct had been nor how creative his work nor how valuable his
contribution to society." "The informed judgement of experts is needed
to make the required finding," Douglas concluded. "We cruelly mutilate
the Act when we hold otherwise. For we make the word of the bureaucrat
supreme, when it was the expertise of the doctors and psychiatrists on
5' 8
which Congress wanted the administrative action to be dependent.
57. Boutilier 120-24. See Chae Chan Ping.v. United States, 130 U.S. 581 (1889). On race
as a metalanguage, see Evelyn Brooks Higginbotham, "African-American Women's History
and the Metalanguage of Race," Signs 17 (Winter 1992): 251-74; Siobhan B. Somerville,
Queering the Color Line: Race and the Invention of Homosexuality in American Culture
(Durham: Duke University Press, 2000).
58. Boutilier, 125, 129, 135.
Although Douglas argued against excluding all homosexuals, his opinion

expressed profoundly negative views about homosexuality. He approvingly
cited a 1949 text that linked homosexuality with immaturity and narcis-
sism and referenced a 1944 text in declaring that "the homosexual is one,
who by some freak, is the product of an arrested development."5 9 Turning
to Boutilier, Douglas pointed out that "at least half of the questioning of
this petitioner related to his postentry conduct" and should have been dis-
regarded. Citing the statements of Boutilier's psychiatrists, Douglas also
argued against the notion that he was "afflicted": "'Afflicted' means pos-
sessed or dominated by.. . . 'Afflicted' means a way of life, an accustomed
pattern of conduct. Whatever disagreement there is as to the meaning of
'psychopathic personality,' it has generally been understood to refer to a
consistent, lifelong pattern of behavior conflicting with social norms with-
out accompanying guilt.... Nothing of that character was shown to exist at
the time of entry." Here the dangers of the arguments advanced on behalf
of Boutilier become evident. For, in essence, Douglas was suggesting that
as long as homosexuality did not become a lifelong and consistent way of
life, as long as it did not conflict with social norms, and as long as there
was guilt, homosexuality should not be grounds for exclusion. 60
Douglas's opinion is also noteworthy for the way it invoked the "common
knowledge" that homosexuals had served in high positions in the legisla-
tive and executive branches. Had Douglas forgotten that there was a third
branch of government headed by the Supreme Court itself? Or was there
just less common knowledge about homosexuals in the judicial branch? 6'
If Douglas lacked such knowledge, others apparently did not.
Abe Fortas was the newest Supreme Court justice when Boutilier was
decided. The son of immigrants, Fortas was married to a divorcee who
did not wish to have children. Fortas biographies claim that the justice
participated in various "extramarital activities," had at least two serious
affairs with women during his marriage, and "did not regard anyone, not
even his wife's friends, as off limits." Fortas, closely aligned with President
Johnson, was also the first person whom Walter Jenkins called when news
of his second arrest became public; Fortas quickly sent Jenkins to a hospital
62
and pleaded, unsuccessfully, with journalists to delay their stories.
Two months after Douglas, Brennan, and Fortas dissented in Boutilier,
59. Ibid., 127-28.

60. Ibid., 132-34.
61. This point was raised in Drum, no. 25 (Aug. 1967), 25. Drum is discussed below.
62. Kalman, Abe Fortas, 196. See also 42-45, 194-96, 261-66, 320, 342-44; Murdoch
and Price, Courting Justice, 107-10; Murphy, Fortas, 195-200, 478-89, 507-9; Shogan, A
Question of Judgement, 3-10, 40, 101-2, 170-78.
one of J. Edgar Hoover's lieutenants at the FBI visited Fortas to inform

him about an "allegation" that implicated the justice in "homosexual activi-
ties." According to a memorandum that was shown to Fortas, an "active
and aggressive homosexual" who was a "reliable" informant stated that
he had "balled" with Fortas several times before Fortas joined the Court.
The informant defined "to ball" as "to have a homosexual relationship."
The FBI assured Fortas that it was taking "no further action" but wanted
to inform him for his own "protection and knowledge." Fortas responded
that the charges were "ridiculous" and "false" and that "while he might be
properly accused of normal sexual relations while a young man and dur-
ing his married life, he most certainly had never committed homosexual
acts. '63 Two years later, in the wake of ethical questions about his finances
and political questions about his rulings in rape and obscenity cases, Fortas
resigned from the Court, not long after Johnson had nominated him to
replace Warren as Chief Justice.
Strategies of Reform
Moore, Freedman, and the Supreme Court dissenters disagreed with

Kaufman, Marshall, and the Supreme Court majority about the desirable
outcome in Boutilier,but the positions they took in defending Boutilier
reinforced the notion that homosexuality was undesirable. This much is
clear from examining the texts of Boutilier.But to end the analysis here,
at a point that suggests a thoroughgoing accommodationism on the part
of Boutilier's advocates, would miss an additional dimension. Too often
legal scholars explore the texts of cases without examining the movements
responsible for bringing the cases through the courts. Legal scholars have
paid more attention to Boutilier than have historians, but they have had
virtually nothing to say about those responsible for funding, litigating,
63. Two FBI documents, dated 20 and 24 Jul. 1967, are included in J. J. Maloney, "Was
Abe Fortas Gay?" Crime Magazine: An Encylopedia of Crime, available at http://www.
crimemagazine.com/Corruption/abe.htm. Susan Braudy, in Family Circle: The Boudins and
the Aristocracy of the Left (New York: Knopf, 2003), 331, writes (citing the FBI file on
Fortas), "In fact, Fortas resigned because of J. Edgar Hoover's threat of blackmail: an FBI
agent had visited Fortas in 1968 to inform him of Hoover's 'concern' that Fortas had been
seen at a homosexual bar." Laura Kalman, in Abe Fortas,375, writes (citing the papers of
journalist Fred Graham), "Graham and [William] Lambert were told, presumably by sources
within the government who offered to 'bootleg' the information 'out of the FBI,' that the
FBI had a morals file on Fortas that included allegations he had once been involved in a
sexual relationship with a teenage boy." I thank Kalman for first calling my attention to
these sources.
and supporting Boutilier.64 The Homosexual Law Reform Society (HLRS)
and the ACLU/NYCLU were the principal groups that came to Boutilier's
assistance and for the purposes of his case they adopted strategies of re-
spectability. But interpreting these strategies cannot rely exclusively on
the briefs the groups submitted and the legal work they supported. In fact,
HLRS was Boutilier's most significant organizational advocate, and since
1964 HLRS's parent organization, the Philadelphia-based Janus Society,
had been attacked by much of the homophile movement for not being
65
sufficiently respectable.
For the last two decades most scholars who have examined the homophile
movement of the 1950s and 1960s have concentrated on the Mattachine
Society (the publisher of Mattachine Review), One, Inc. (the publisher of
One magazine), and the Daughters of Bilitis (the publisher of The Lad-
der), all of which were originally founded in California. Many have com-
mented on the movement's increased militancy in the mid-1960s, when,
influenced by civil rights activism, some local homophile groups began
organizing peaceful public demonstrations and campaigning more aggres-
sively (though respectably) for gay, lesbian, and bisexual rights. But few
scholars recognize that in this period an influential faction of the homophile
movement began to move beyond the politics of militant respectability and
turn toward a more radical politics of sexual liberation. 66 This faction, it
turns out, proved most supportive of Boutilier.
In his 1963 campaign for the presidency of the Janus Society, Clark
Polak had argued, "We must operate in a way that is beyond reproach."
Polak, however, did not keep his promise. Within months of his election,
he transformed Janus's monthly newsletter into a sexually controversial
and risque publication called Drum, which had a circulation larger than
that of all other homophile publications combined. (In a front-page story
64. See the works cited in note 15. The absence of research in this area has led at least
one scholar to speculate (incorrectly) that the HLRS "may have been formed primarily to
file a brief in this case." See Arthur Leonard, Sexuality and the Law: An Encyclopedia of
Major Legal Cases (New York: Garland, 1993), 644.
65. On the ACLU, see D'Emilio, Sexual Politics, 47-48, 112, 117, 155-57, 178, 194,
200-201, 206-7, 211-4; Vein Bullough, "Lesbianism, Homosexuality, and the American
Civil Liberties Union," Journalof Homosexuality 13 (Fall 1986): 23-33; Stein, City of Sis-
terly and Brotherly Loves, 100-101, 160, 183-84, 197, 209-10, 251,276-82, 384; Murdoch
and Price, Courting Justice, 31, 39, 61-62, 168, 191; Cain, Rainbow Rights, 56-57, 67-69;
Boyd, Wide-Open Town, 141, 217-18, 225; Johnson, The Lavender Scare, 186-92, 202-7.
The ACLU/NYCLU brief was authored by David Carliner, Burt Neuborne, Nanette Dembitz,
and Alan Levine. On the Janus Society and HLRS, see Stein, City of Sisterly and Brotherly
Loves, 200-86.
66. See the works on the homophile movement cited in note 18. I discuss this in greater
depth in City of Sisterly and Brotherly Loves.
in 1968, the Wall Street Journalestimated Drum's circulation at 15,000.)

According to advertisements for the magazine, "DRUM presents news for
'queers,' and fiction for 'perverts.' Photo essays for 'fairies' and laughs for
'faggots."' Aspiring to be "a gay Playboy, with the news coverage of Time,"
Drum promoted sexual liberationism through male physique photographs,
campy comic strips, humorous parodies, news highlights, pro-gay features,
and pro-sex editorials. Essentially, the magazine combined some of the
features that made male physique magazines immensely popular and some
of the features that made respectable homophile publications significantly
influential. In multiple, direct, and confrontational ways, Janus and its
magazine challenged the carefully constructed
67
images of respectability
cultivated by other homophile groups.
Because of this, many homophile leaders attacked Polak, Janus, and
Drum, fearing among other things that radical sexual liberationism would
provide ammunition for the enemies of the movement. 68 In response, Polak
publicly indicted the "comic-opera gulf between the unrealistic homophile
movement and the realities of homosexual life," criticized the "almost
anti-homosexual disdain permeating the various groups," and savaged
movement publications for their "groveling obsequeousness." Drawing
on the black power critique of civil rights "Uncle Toms," Polak assailed
homophile groups for caring only about "'good' homosexuals," which he
campily labeled the politics of "Aunt Maryism." In contrast, Polak argued
for a broad agenda of sexual liberation, attacking the "anti-sexualism"
of laws against "abortion, birth control, obscenity, prostitution, adultery,
69
fornication, and cohabitation.
Polak also bragged to his homophile rivals about the successes of Ja-
nus, Drum, and Trojan Book Service, his lucrative pornography business.
But if many of Polak's activities defied the politics of respectability, he
also poured his profits into respectable legal battles. In 1964, Janus began
discussions about forming "a new organization along the lines of the Ho-
mosexual Law Reform Society" in Great Britain. Significant fundraising
began with an anonymous $6000 donation in 1965. Later that year, Polak
wrote that Griswold had bolstered his confidence and shifted his focus:
"Law reform will not be effectuated through the State Legislatures ...
67. Janus Society Newsletter (JSN), Oct. 1963, 1-2; Wall Street Journal, 17 Jul. 1968,
1, 22; 1964 East Coast Homophile Organizations (ECHO) 1964 Conference Program, 14,
ECHO Papers (ECHOP), Gay, Lesbian, Bisexual, and Transgendered Archives of Philadel-
phia, William Way Community Center, Philadelphia, Penn.; JSN, Feb. 1965, 2.
68. See, for example, Eastern MattachineMagazine, Nov.-Dec. 1965, 19-20; Joan Frazer
[Joan Fleischmann] (for ECHO) to Clark Polak, c. Feb. 1965, ECHOP.
69. Clark Polak, "The Homophile Puzzle, Part One," Drum, Dec. 1965, 14-15; JSN, Sep.
1966, 1-2; JSN, Jan. 1965, 2.
We see the solution within the Federal Court system, with the Supreme
Court as the final voice. The Connecticut birth control decision points the
way-invasion of privacy." (Polak made no mention of the antigay lan-
guage in Griswold.) In November 1965, he reported that Janus and Drum
had raised $10,000 and "we are now looking for court cases to support."
In 1966 Polak announced that the Janus Society would be broken up into
three parts: Drum Publishing Company, Janus Trust, and HLRS. Though
this appears to have never happened, HLRS soon began supporting gay
rights cases around the country.70 One of HLRS's greatest successes came
in 1967, when the New Jersey Supreme Court ruled unanimously in Val's
that lesbians and gay men had the right to assemble in bars. Significantly,
the Society funded this case but not two companion gay bar cases because
Val's concerned "homosexual association" but not allegations of "kissing
between two males."'7' Some activists believed in respectability as an ex-
pression of their values, but Polak used respectability selectively, aiming
carefully crafted messages to specific audiences.
The lengths that Polak was willing to go is reflected in a letter he wrote to
Freedman in which he sought her opinion about the HLRS Boutilierbrief:
"Would medical professionals who feel homosexuality is a 'disturbance,'
but not pathology, who would be willing to sign the brief with reservations
be beneficial?" She replied, "I have serious reservations ... but prefer to
think about it carefully, rather than be precipitous in my response." Here
one of the most sexually radical leaders of the homophile movement, who
in speech after speech and article after article attacked gay leaders for not
being sufficiently pro-gay, considered the strategic use of antigay medi-
cal testimony, while his heterosexually married ally expressed reserva-
72
tions .
HLRS was not the first homophile group involved with Boutilier and
homophile groups were not alone in fighting for Boutilier. Freedman re-
quested financial assistance from the Mattachine Society of New York in
July 1966. Shortly thereafter Mattachine began raising funds for Boutilier
and invited Freedman to speak at the group's meeting. Freedman's sister
remembers going to a "big gay meeting where Blanch was the speaker" and
says that Freedman later remarked, "'Everyone is so loving to me. They
70. ECHO Minutes, 5 Dec. 1964, ECHOP; Clark Polak, "The Failure," Drum, Sep. 1965,
4; Polak to Dick Leitsch, 29 Nov. 1965, Box 5, Folder 2, Mattachine Society Records (MSR),
International Gay Information Center Archives, Rare Books and Manuscripts Division, New
York Public Library, New York, NY; Drum, nos. 18-19, 1966, 52.
71. Drum, no. 24 (Mar. 1967), 6. See also One Eleven Wines and Liquors, Inc. v. Division
of Alcoholic Beverage Control, 235 A. 2d 12 (N.J. 1967). Val's was consolidated with this
case.
72. Correspondence, 17-18 Nov. 1966, Boutilier file, ACPFB Papers.
must think I'm a lesbian."' In November 1966, Polak wrote to Freedman

that Melvin Wulf of the ACLU had suggested he contact her about Boutilier
Polak offered to produce an amicus brief and support the case financially.
Freedman responded enthusiastically and soon Janus and HRLS became
the primary financial supporters of Boutilier. In early 1967, Freedman
wrote to Polak, "I very much like and prefer the new name Homosexual
Law Reform. It says something and immediately conveys the purpose
and function of the organization." Shortly thereafter, Freedman wrote to
Mattachine, complaining that the group had forwarded no money to her
even though it had solicited funds for this purpose.73 Freedman's records
indicate that Boutilier paid more than $1,100 of his own legal expenses
(and struggled financially to do so, having lost his job because of publicity
about his case); HLRS contributed more than $750; and the National Legal
Defense Fund, a homophile organization established in San Francisco in
1967, sent $350. HLRS likely contributed in other ways, for example by
compensating Gilbert Cantor, a straight Philadelphia lawyer, for prepar-
ing the HLRS brief. In 1968, the Wall Street Journalreported that HLRS
had spent $5000 on court actions in 1967 and set aside $25,000 for future
74
litigation.
Freedman received a different kind of assistance from Frank Kameny,
a leading homophile activist based in Washington, D.C. Kameny wrote
Freedman in February 1967 that John Macy, Jr., chairman of the U.S. Civil
Service Commission, had written a letter "explicitly denying that the term
homosexual can be used to describe a person or a condition, and averring
that the term can be used only to describe acts." Kameny continued, "Two
agencies of the Government are taking opposite positions, as suit their
73. Author correspondence with Paul and Anne Laven; Freedman to Polak, 10 Jan. 1967,
Boutilier file, ACPFB Papers. See also correspondence, 22 Jul.-18 Nov. 1966, Boutilier file,
ACPFB Papers; correspondence, 1966-67, Box 1, Folders 1, 12, 14, and 15, MSR; JSN,
Dec. 1966, 2.
74. Boutilier file, ACPFB Papers. See also Wall Street Journal, 17 Jul. 1968, 1, 23; Mat-
tachine Society of New York Newsletter, Dec. 1966, 2; Mattachine New York to homophile
organizations, c. 1966, Phyllis Lyon/Del Martin Papers, Box 19, Folder 32, Gay, Lesbian,
Bisexual, and Transgender Historical Society, San Francisco, Calif. Philadelphia lesbian
activist Joan Fleischmann identifies Gilbert Cantor as a straight lawyer who was committed
to civil rights and whom she dated. Author interview with Fleischmann, 31 May 1994. Cantor
was actively involved in the homophile movement in the 1960s. See Stein, City of Sisterly
andBrotherly Loves, 251, 256, 300. The National Legal Defense Fund was proposed at the
National Planning Conference of Homophile Organizations in 1966 and was established
the following year. See Ladder Jun. 1967, 25-26; Ladder, Jan. 1968, 21-27; NLDF file,
NACHO file, ONE Institute and Archives, Los Angeles, Calif.; NLDF proposal, brochure,
and articles of incorporation, c. 1966-67, Lyon/Martin Papers, Box 18, Folder 17; Box 20,
Folder 7; correspondence, 2-27 Mar. 1967, Boutilier file, ACPFB Papers.
particular purposes of the moment." The same could have been said of the
homophile movement, which in many cases argued that homosexuality was
an inborn and fixed trait but in Boutilier embraced a behavioral model.
Kameny also suggested that Freedman challenge the notion that Boutilier
was afflicted. "Some homosexuals ... may well be afflicted; but certainly
many others may well not be afflicted but merely neutrally have---or, if
you want to go all the way, be blessed with-the condition."75
While HLRS and other homophile activists worked in alliance with
civil libertarians from the ACLU and radical immigration advocates from
the American Committee for the Protection of the Foreign Born, they also
worked to educate and politicize their constituencies. When Freedman wrote
to Polak in January 1967 to congratulate Polak and Cantor on the HLRS
brief and expressed the hope "that you will be able to get added use out of
it," she recognized that the Court was not the only intended audience. As
Boutilier made its way through the courts, Drum kept thousands of readers
in states of excitement created by the combination of sexy physique photo-
graphs, respectable legal news, and excerpts from the HLRS brief. Before
the Court's decision was announced, Drum looked to the future with some
degree of pessimism: "Movement officials are not hopeful in this case. For
one thing, an immigrant has very few rights until he becomes a citizen;
for another, Congress has the legal right to decree what classes of people
will be either permitted or denied citizenship; and, possibly most damag-
ing, it appears as if Congress intended to exclude homosexuals-even if
we are not 'psychopaths."' But Drum also found reasons for optimism:
"Whatever the eventual outcome, however, the Homosexual Law Reform
Society has presented a masterful plea for Boutilier and, through him, the
15 million or so other homosexuals in America today." The magazine was
particularly proud that HLRS had obtained statements from twenty-eight
experts who declared that "homosexuality was not an illness." Polak gave
the case "only a 30% chance of succeeding," but Drum added that "such
an appraisal is not as pessimistic as it first appears" since a dissent "could
' 76
presage events to come.
After arguments were presented to the Court but before the decision
was rendered, Janus members were further encouraged by a report in their
newsletter, which stated that the HLRS brief "made a positive impression
on at least three of the members of the Court." According to this report,
"Potter Stewart told the Government attorney that it appeared to him that
the term 'psychopathic personality' was a code word of some sort that no
75. Kameny to Freedman, 9 Feb. 1967, Boutilier file, ACPFB Papers.

76. Freedman to Polak, 18 Jan. 1967, Boutilier file, ACPFB Papers; Drum, no. 24 (1967),
3, 10.
one but those on the in could understand to mean homosexuality." When the
government attorney could not answer Stewart's question about whether the
term had been applied "to other persons or groups," Stewart asked him to
find out. On 17 March, Cantor received a copy of the reply, which indicated
that "though they could not point to specific examples the [INS] was sure
that it had been applied elsewhere." Warren was said to have "listened with
rapt attention," Douglas "spent the whole time 'writing notes furiously,"'
and Fortas "was among those who questioned the Government on their
position that all homosexuals were 'psychopaths."' After the case was lost,
Drum tried to rally around a "victory of sorts" in the form of Douglas's
"impassioned dissent." Polak also criticized the Court's decision in a letter
to the editor published in Sexology and a press release distributed to major
newspapers. The latter yielded a New York limes article headlined "Supreme
Court's Decision on Homosexual Attacked." Polak vowed to "introduce
similar cases into the courts within the near future," but the Supreme Court
would not hear oral arguments in a gay rights case again until 1984. 77
While the homophile and later the gay liberation and lesbian feminist
movements continued to pursue law reform, Freedman's and Boutilier's
days in the struggle ended around the time that the Court decision was
announced. According to a member of her family, Freedman was "deathly
sick from sclaraderma [scleroderma] when she argued the case" and "when
she finished, she checked into a hospital to die." Another family member
recalls, "She had a very tough time during the proceedings. She said she
had a horrible thirst and couldn't swallow her saliva." Freedman died on
16 April 1967, a little more than a month after she appeared before the
Court and several weeks before the Court's decision was announced, but
several family members say they are certain she knew about the outcome
of Boutilierbefore she died. Her sister remembers meeting Boutilier when
he visited Freedman in the hospital and says that "both knew they lost the
Supreme Court decision." She continues, "While he came to console her,
78
Blanch ended up consoling Boutilier."
77. JSN, no. 24 (1967), 2; Drum, no. 25 (Aug. 1967), 25; NYT 24 May 1967; HLRS press
release, 23 May 1967, Boutilier file, ACPFB Papers. See also Polak to David Freedman, 9
Jun. 1967, Boutilier file, ACPFB Papers; Sexology, Jan. 1968, 387-88; Murdoch and Price,
Courting Justice, 134. The answer to Stewart's question can be found in a memorandum
by INS General Counsel Charles Gordon to Marshall, 15 Mar. 1967, Boutilier file, ACPFB
Papers. While this letter references examples of the phrase "psychopathic personality" be-
ing used in non-sexual deviation cases, they all appear to be from the period after the 1965
immigration law was passed.
78. Author correspondence with Paul and Anne Laven. See also NYT, 17 Apr. 1967,
37; Polak to Freedman, 22 May 1967, Boutilier file, ACPFB Papers. Freedman was sent
a telegram announcing the Court's decision on 22 May 1967. See Boutilier file, ACPFB
Papers.
Boutilier apparently was profoundly troubled by the Court's decision

and he may well have been deeply distressed about Freedman's illness and
death. According to an account provided by Boutilier's niece,
Clive was hit by a car while crossing a street in New York in 1967. He was in
a coma for 30 days and was left brain damaged. I truly believe that this was
an attempt at suicide because of the Court's decision and my siblings concur.
Unfortunately we may never know for sure but it sure was coincidental and
ironically the car that hit him was driven by a Customs Officer. My grand-
mother, grandfather, and Clive returned to Canada after his release from the
hospital and took up residence in Niagara Falls, Ontario. My grandmother
cared for Clive at home for several years until she could not do it anymore.
He has always been mobile and can dress and feed himself but walks as if
in a drunken stupor. He has resided in group homes for the disabled since
the early '90s. I do believe that he remembers his lifestyle because I have
a nephew who is gay and Clive once said to me, "He has the problem too,
doesn't he?" I am sure that my grandmother drummed it into his head that
what happened was to never be brought into the light of day ever again.
Boutilier was deported on 10 November 1968 and died nearly thirty-five
years later, on 12 April 2003. 7 9
Meanwhile, because of the confusion that surrounded the term "psycho-
pathic personality," the U.S. Congress had attempted to clarify matters in
1965 by specifically excluding immigrants with "sexual deviations" along
with immigrants with "psychopathic personalities." Although new lower
court rulings, PHS procedures, and INS practices changed the ways that
these provisions were administered over the subsequent twenty-five years,
the exclusions officially remained in force until 1990, when they were
eliminated at the same time that new immigration procedures allowed the
INS to exclude people with HIV and/or AIDS.80
79. U.S. Citizenship and Immigration Services records for Clive Michael Boutilier; au-
thor correspondence with Boutilier's niece, 14 Mar. 2001; Marc Stein, "Forgetting and
Remembering a Deported Alien," History News Network, 3 November 2003, http://hnn.
us/articles/1769.html. I thank Marian L. Smith of U.S. Citizenship and Immigration Services
for supplying me with the date of Boutilier's deportation.
80. In 1979, U.S. Surgeon General Julius Richmond announced that the PHS would no
longer provide the required medical certifications for excluding homosexual immigrants
solely on the basis of their homosexuality. The INS at first responded by trying unsuccess-
fully to use the "moral turpitude" clause that remained on the books. Then the INS tried
with mixed success to enforce the "psychopathic personality" clause without reliance on
PHS certifications. In 1984, the INS began using new procedures that excluded aliens who
were identified as "homosexual" by a third party arriving at the same time and aliens who
offered "unsolicited, unambiguous oral or written admission of homosexuality and repeat
that admission in a second interview." This practice lasted until 1990, when the PHS was
forced by George Bush's administration to begin enforcing the 1965 Act's provisions shortly
Conclusion
The decision in Boutilier made evident what was declared implicitly or

explicitly in the Court's abortion, birth control, interracial marriage, and
obscenity rulings in the period from 1965 to 1973: that the Court's vision
of sexual citizenship was not libertarian or egalitarian and that it was based
on a doctrine that privileged adult, heterosexual, monogamous, marital,
familial, domestic, private, and procreative forms of sexual expression.
This doctrine influenced the Court not only in privacy cases but also in
cases concerning immigration, marriage, and speech. Drawing on familial
fantasies about the "civilized" past of middle-class "free" white men, the
doctrine allowed the state to continue regulating the nation's sexual borders.
We need not look to the post-1973 period for evidence of a Court revers-
ing itself in a set of sexually conservative rulings produced in an era of
backlash; the conservatism is plain to see in the Court's liberalizing rulings
from 1965 to 1973 and it is evident when Boutilier is acknowledged and
analyzed. Responding to sexual revolutions from below, the Court sought
to limit their effects from above. As Justice Warren Burger wrote in a 1973
obscenity case, "One can concede that the 'sexual revolution' of recent
years may have had useful byproducts in striking layers of prudery from a
subject long irrationally kept from needed ventilation. But it does not fol-
low that no regulation of patently offensive 'hard core' materials is needed
or permissible; civilized people do not allow unregulated access to heroin
because it is a derivative of medicinal morphine."'" Constrained by the legal
system but also by their choices about how to argue their cases, Boutilier's
advocates, some of whom were among the homophile movement's most
significant sex radicals, participated in the development of the Court's
doctrine by contributing to negative judgments about homosexuality.
On the most basic level, Boutilierdeclared to lesbian, gay, and bisexual
aliens and other aliens who had engaged in same-sex sex, whether they
resided inside or outside the United States, that they were not eligible for
U.S. citizenship and were not welcome on U.S. land. For these people, the
denial of citizenship was potentially or effectively literal. Boutilier also
delivered powerful messages to U.S. citizens. The Court had previously
announced in Griswold and Fanny Hill that marriage conferred special
before the Sixth International Conference on AIDS in San Francisco. Later that year, after
nearly one hundred AIDS service and research organizations boycotted the conference in
response, the Immigration Act of 1990 removed the references to "sexual deviation" and
"psychopathic personality" but added provisions that allowed the exclusion of people with
HIV and/or AIDS. See note 15; Immigration Act of 1990, PL 101-649, 104 Stat. 4978.
81. Miller v. California,413 U.S. 15, 33 (1973).
privacy rights on citizens and that citizen majorities had special privileges
in relation to sexual representation. Soon the Court would declare in Lov-
ing, Eisenstadt,and Roe that citizens could claim other special rights in
the realms of marriage and reproduction. At no point did the Court suggest
that citizens had rights to cohabit, fornicate, commit adultery, or engage in
homosexual acts, and in several instances the Court declared affirmatively
that citizens did not have such rights. In Boutilier, the Court announced
that the state could define homosexuality as a psychopathology, with po-
tential implications not only in the realm of immigration law but also in
any other dimension of social, cultural, and political life (including vot-
ing) in which the rights of the mentally ill were limited. The decision in
Boutilieralso sent a message to U.S. citizens that the homosexuals among
them could claim only the rights of second-class citizenship and this only
because they had been born in the United States or had been naturalized
under false pretenses. Homosexual citizens were far from alone in this.
Many members of ethnic and racial minorities, poor people, people with
disabilities, and people in poor health knew that the same was the case for
them. For all of these groups, citizenship in all of its political, social, and
sexual dimensions was far less secure than it was for those in the dominant
culture who could rest assured that they would have been welcomed as
new first-class U.S. citizens had they not been born in the United States.
More than three decades after Boutilier,in Lawrence (2003) the Court
struck down state sodomy laws, reinterpreting Griswold, Eisenstadt, and
Roe in ways that reject (without acknowledging) the earlier Court's view
that there is no right to engage in sex outside of marriage. In effect, the
Court not only overturned Bowers but also the logic of Griswold to Roe,
developing a new constitutional doctrine with parameters that will only
emerge with time. On the one hand, influenced by a tradition of gay legal
advocacy that stretches back decades and by anti-government libertarian-
ism, Justice Kennedy's majority opinion endorsed a broadly framed "spatial
and transcendent" conception of liberty that includes same-sex intimate
sexual conduct. On the other hand, influenced by that same advocacy
tradition and by the privatizing politics of domesticated respectability,
Kennedy's opinion narrowly emphasized the rights of adult homosexuals,
in coupled relationships, to have consensual sex, with their partners, in their
private homes, "absent injury to a person or abuse of an institution the law
protects," and the opinion distinguished this right from rights of formal
relationship recognition (i.e., marriage). 2 Only future developments and
decisions will make evident the Court's and the country's new systems of
sexual regulation and sexual production.
82. Lawrence.

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Citation: 23 Law & Hist. Rev. 491 2005

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In its controversial 2003 decision in Lawrence v. Texas, the U.S. Supreme

Marc Stein is an associate professor of history at York University in Toronto

Law and History Review Fall 2005, Vol. 23, No. 3

Joanne Webb, a sales representative of Passion Parties, a sex toy company

8. On heteronormativity, see the works on sexual citizenship cited in note 2.

be restricted." In Loving (1967), the Court ruled unanimously that laws

11. A Book Named "John Cleland'sMemoirs of a Woman of Pleasure" v. Attorney General

nine justices ruled that "homosexuals" could be excluded and deported

Historians of the post-World War II sexual revolution have produced

in Boutilier.18 Moreover, the conventions of legal scholarship ordinarily

heteronormative thought that influences outcomes across different realms

Notwithstanding later interpretations by the mass media, law journals, pub-

use of contraceptives? The very idea is repulsive to the notions of privacy

24. Griswold, 485-86.

"free men," Warren rooted these conceptions in an imagined middle-class,

was "complicate[d]" by "poverty" and "racial overtones." But according

31. Roe, 152-53, 116, 154.

on privacy claims that were compatible with conservative anti-government

Policing Sexual Borders

Examining Boutilier,the Court's most significant gay rights ruling in

production of familial, gender, reproductive, and sexual boundaries and

Milton, Kaufman "participated in highly improper ex parte communications with various

doctors concurred with this position. Essentially, Boutilier's defenders

ments of homosexuality, even while arguing in favor of Boutilier. Moore

46. Ibid., 496-98.

ernment would have initiated its deportation proceedings." In making these

have helped that Sarsfield's interrogation suggested that Boutilier played

Order in the Court

The members of the Supreme Court who considered the arguments in

According to the biographical literature on the justices, the Court's

In the end, the Court affirmed in Boutilierwhat it had earlier indicated

Although Douglas argued against excluding all homosexuals, his opinion

59. Ibid., 127-28.

one of J. Edgar Hoover's lieutenants at the FBI visited Fortas to inform

Moore, Freedman, and the Supreme Court dissenters disagreed with

in 1968, the Wall Street Journalestimated Drum's circulation at 15,000.)

must think I'm a lesbian."' In November 1966, Polak wrote to Freedman

75. Kameny to Freedman, 9 Feb. 1967, Boutilier file, ACPFB Papers.

Boutilier apparently was profoundly troubled by the Court's decision

The decision in Boutilier made evident what was declared implicitly or

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