Marc Stein: Immigration is a Queer Issue: From Fleuti to Trump

Today we welcome a guest post from Marc Stein, author of Sexual Injustice: Supreme Court Decisions from Griswold to Roe. Focusing on six major Supreme Court cases during the 1960s and 1970s, Stein examines the generally liberal rulings on birth control, abortion, interracial marriage, and obscenity in Griswold, Eisenstadt, Roe, Loving, and Fanny Hill alongside a profoundly conservative ruling on homosexuality in Boutilier. In the same era in which the Court recognized special marital, reproductive, and heterosexual rights and privileges, it also upheld an immigration statute that classified homosexuals as “psychopathic personalities.” Stein shows how a diverse set of influential journalists, judges, and scholars translated the Court’s language about marital and reproductive rights into bold statements about sexual freedom and equality.

In this post Stein highlights one of the historic cases referenced in the Ninth Circuit’s Court of Appeals ruling not to stay the temporary restraining order on President Trump’s Executive Order restricting the entry of people from seven predominantly Muslim countries.

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Earlier this month, after a three-judge panel of the Ninth Circuit Court of Appeals rejected the Trump administration’s motion to stay a temporary restraining order for Executive Order 13769, a number of observers noticed that the ruling cited a major gay rights case as an important precedent. The case was Rosenberg v. Fleuti, decided by the U.S. Supreme Court in 1963. Thanks to the broad and deep education that most of us now receive in the history of LGBT rights and freedoms, few knowledgeable commentators could have missed the reference.

O.K., that last part was fake; few of us receive much of an education in LGBT history. And the number of people who noticed the reference to Fleuti was probably quite low. Truth be told, the decision in Washington v. Trump, which addressed the 90-day ban on the entry of Muslims from seven Middle Eastern and African countries, only makes passing reference to Fleuti. It’s not even clear that Fleuti was a major gay rights victory; I myself did not single it out in a 2014 essay I wrote about teaching the U.S. Supreme Court’s greatest gay and lesbian hits.^[1]

Still, it’s worth taking the opportunity to revisit Fleuti, which the Ninth Circuit panel quoted as saying that “the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”

Rosenberg v. Fleuti was a strange case in many ways. According to the facts presented in the Supreme Court’s decision, George Fleuti was a Swiss national who had been legally admitted as a U.S. permanent resident in October 1952 and had remained in the United States continuously except for a short day-trip to Ensenada, Mexico, in August 1956. For reasons that are unclear, in 1959 the Immigration and Naturalization Service attempted to deport Fleuti, claiming that when he re-entered the United States in 1956, he was excludable because he had been convicted of a crime of “moral turpitude” between his original entry in 1952 and his re-entry in 1956.

Unfortunately for the INS, it soon became clear that the minor same-sex sex offenses for which Fleuti had been convicted did not meet the definition of a crime of moral turpitude. Unfortunately for Fleuti, the INS had recourse to another law: in June 1952 Congress had passed a new immigration statute that provided for the deportation of aliens “afflicted with psychopathic personality.” The INS had begun to use this provision against “homosexual” aliens and that’s what it tried to use against Fleuti. Relying primarily on his prior convictions, the INS claimed that Fleuti had been afflicted with psychopathic personality when he re-entered the United States after his trip to Ensenada. (It could not make a similar claim about his original entry because the 1952 law did not take effect until December.) Fleuti’s lawyer Hiram Kwan argued in response that the psychopathic personality law was unconstitutionally vague.

Research in the papers of the justices reveals that initially the Supreme Court voted 5-4 against Fleuti, with the senior justice in the majority, Tom Clark, selecting the newest justice, Arthur Goldberg, to write the Court’s main opinion. Goldberg, however, changed his mind and he ended up writing a 5-4 decision in favor of Fleuti. The majority opinion did not address the constitutionality of the psychopathic personality law, a choice that had negative consequences for the Supreme Court’s 1967 decision in Boutilier v. INS, which upheld the law. Instead, Goldberg concluded that Fleuti’s return from Mexico after a short day-trip did not constitute “entry” under the terms of the law. Drawing on the statutory language that defined “entry” and two 1952 Supreme Court precedents, Goldberg wrote that an alien’s return to the United States after an “innocent, casual, and brief” trip outside the United States did not meet the legal definition of “entry.” (One of the precedents addressed an alien who had entered and exited Canada while on an overnight train from Buffalo to Detroit;  the other concerned an alien who had had spent a week in Cuba while recovering from injuries sustained when his merchant ship was torpedoed in the Caribbean during World War Two.) On this basis, the Supreme Court remanded the case to the lower court to determine whether Fleuti was excludable given the guidance provided by the Court. In the end, it was determined that Fleuti was not excludable.

On the one hand, the Supreme Court’s decision in Rosenberg v. Fleuti is disturbing in the way it came close to implying that the legal borders of the United States extend well beyond its literal borders. Whether the cases concerned Canada, Cuba, or Mexico, all of which have directly experienced U.S. military interventions, there’s something deeply troubling about the Supreme Court’s reluctance to treat a visit to a U.S. neighbor as a visit to a U.S. neighbor.

It’s also disturbing to think about the possibility that Fleuti only won his case because he was white, male, employed, gender-normative, and respectable. To take the best available counter-example, the outcome was less favorable in Quiroz v. Neely, a 1961 Second Circuit decision that upheld the deportation of a female U.S. permanent resident from Mexico. She, too, had encountered trouble when returning from a short trip to Mexico (one of many she took) and she, too, was labelled a “psychopathic personality” based on allegations about homosexuality. Unlike Fleuti, Quiroz lost her appeal.

On the other hand, it’s significant that Fleuti won his case and it’s significant that the Ninth Circuit panel invoked the Fleuti ruling in Trump v. Washington. U.S. federal courts have long relied on precedents that demonstrate that the histories of racialized, gendered, and sexualized groups in U.S. society are interconnected. In the late nineteenth century, when the justices upheld the Chinese Exclusion Acts (in violation of treaties that the United States had signed with China), they invoked prior decisions in which the Court had permitted Congress to override pre-existing treaties with Native Americans. In Boutilier v. INS, the 1967 decision that upheld the exclusion and deportation of “homosexuals,” the Court cited the Chinese Exclusion cases as key precedents that affirmed the power of Congress to exclude aliens with specific “characteristics.” Now in Trump v. Washington, the Ninth Circuit panel has used a decision in a “gay rights” case as a precedent for a decision in a “Muslim rights” one.

Justice Goldberg wrote in Fleuti that “Congress unquestionably has the power to exclude all classes of undesirable aliens from this country, and the courts are charged with enforcing such exclusion when Congress has directed it.” This was before Congress dramatically changed U.S. immigration law in 1965; before Congress removed the ban on people “afflicted with psychopathic personality” in 1990; before Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996; and before the courts developed new methods of evaluating laws that discriminate based on race, religion, nationality, and other factors. Goldberg also was addressing actions taken by Congress, not the President, and his comments referred to the exclusion of “undesirable aliens,” not entire classes of aliens based on their nationality and religion. Fleuti and other gay rights rulings may or may not be useful in upcoming legal struggles about policing the border, but they remind us that immigration is a queer issue.

Marc Stein is the Jamie and Phyllis Pasker Professor of History at San Francisco State University. His most recent publications include Sexual Injustice: Supreme Court Decisions from Griswold to Roe (University of North Carolina Press, 2010) and Rethinking the Gay and Lesbian Movement (Routledge, 2012), along with essays about queer legal history in Understanding and Teaching U.S. Gay, Lesbian, Bisexual, and Transgender History (University of Wisconsin Press, 2014); Connexions: Histories of Race and Sex in North America (University of Illinois Press, 2016); and LGBTQ America: A Theme Study of Lesbian, Gay, Bisexual, Transgender, and Queer History (National Park Service, 2016).

1. ^[1]“Sexual Rights and Wrongs: Teaching the U.S. Supreme Court’s Greatest Gay and Lesbian Hits,” in Understanding and Teaching U.S. Gay, Lesbian, Bisexual, and Transgender History, ed. Leila Rupp and Susan Freeman (Madison: Univ. Wisconsin Press, 2014), 238-53.↩