Gay Rights and the Supreme Court: The Early Years

As the Supreme Court opens its 2010-2011 session 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, Sexual Injustice examines the more liberal rulings on birth control, abortion, interracial marriage, and obscenity in Griswold, Fanny Hill, Loving, Eisenstadt, and Roe alongside a profoundly conservative ruling on homosexuality in Boutilier during the 1960s and 1970s. In this post, Stein reviews some lessons from those earlier cases to help put the Supreme Court’s upcoming gay rights cases into historical context.–ellen

As the new U.S. Supreme Court term begins and as the California same-sex marriage case continues to make its way through the courts, it’s a good moment to consider the early years of the gay and lesbian movement’s efforts to achieve legal reform through appeals to the Supreme Court. In an August 2005 New Yorker article on the nomination of John G. Roberts to a position on the Supreme Court, Jeffrey Toobin, who is often a perceptive and astute commentator on legal matters, wrote that “systematic legal efforts on behalf of gays began only in the nineteen-seventies, and the Justices didn’t address the issue in a substantive way until the eighties.” Toobin’s view is all too common and it reflects the weak state of popular knowledge about the history of sexuality in the United States. In fact, these efforts began in the 1950s and 1960s, and while the Supreme Court refused to consider gay and lesbian rights appeals from the late 1960s through the early 1980s, in an earlier period the justices decided several significant cases with important implications for gay and lesbian rights.

As those who have studied U.S. gay and lesbian history know, “homophile” activists began challenging discriminatory policies and practices in the courts in the 1950s. Influenced by the successes of the civil rights movement, most notably in Brown v. Board of Education (1954), gay advocates soon began to pin their hopes on the Supreme Court. In 1957, for example, a Brooklyn, New York, man suggested in a letter to the editor of the California-based gay magazine ONE that activists should support taking a gay rights case “all the way up to the Supreme Court.” In his view, “the benefits of this action would be inestimable,” in part because “for the first time in U.S. history the American citizen would know just where he stands on the subject of individual sexual rights.” Implicitly placing his faith in the Supreme Court, he wrote that in adopting this course of action homosexuals would “no longer be at the mercy of hysterical state legislatures and the whims of the local constabulary.” Three years later, after a series of gay bar raids in New York, a ONE columnist asked, “Will the tavern owners have the guts to fight for their rights (all the way to the high courts if need be) and for the rights of their customers?” A few months later, the same columnist noted, “There are two approaches to law reform: through legislative bodies or thru the courts. Appeal to the courts to test the legitimacy of an unfair law may be the faster and sounder way.”

Emboldened by victories at the Supreme Court in two gay-related obscenity cases (ONE in 1958 and Manual in 1962) and one gay immigration case (Rosenberg in 1963), some gay rights advocates began arguing for increased use of court-based strategies.  In 1963, a letter to ONE from a Florida man urged the movement to “study the possibility of setting up a test case which might reach the U.S. Supreme Court.” More specifically, “Two adults accompanied by a friendly attorney could go and confess to committing a ‘crime against nature’ in the privacy of their home.” In a 1964 discussion of sex law reform, Philadelphia gay rights leader Clark Polak wrote to his organization’s board of directors, “Perhaps the best policy will be…to attempt to bring actions in several states so that the Supreme Court will be forced to make an adjudication.”

That same year, Washington, D.C.-based homophile leader Frank Kameny advocated that “already existing legal channels, including the Supreme Court, be more widely used.” Kameny argued at a 1964 homophile movement conference that “one good court case or court decision will go farther than a dozen radio appearances.” He “urged that discriminatory laws and regulations be tested in the courts and that cases be encouraged, even rigged up if necessary.” After noting that “judicial means are more practical, since legislatures are tied in too closely with the prejudices we’re fighting,” Kameny observed, “The Negro went to the courts and Southerners still don’t like him. He nevertheless now has his basic rights…. The changes in attitude will accommodate themselves to what constituted authority hands down.”

At the same conference, David Carliner, an attorney who had worked on important interracial marriage, immigration, and gay rights cases, urged the homophile movement to utilize court-based strategies. According to a published summary of Carliner’s comments, “Arguments about morality and attempts to influence votes are fruitless tactics for homophile groups…. We must distinguish between what the courts will do and what Congress will do…. The courts…are very sensitive to demands for rights in the due process field. One way of getting to the Supreme Court is through conflicting decisions obtained in the various circuit courts. Most landmark cases in the Supreme Court have been the result of deliberate strategy.” Three lawyers on a panel with Carliner agreed. According to one, “Brick by brick, and stone by stone, the law is built. The homosexual is consigned to slow and piecemeal progress. Start with the easiest inroad: change in and enlargement of procedural rights in cases of dismissal for homosexuality.” According to the second panelist, “Attitudes in the courts toward homosexuality are now more realistic and civilized, and the prognosis for change is favourable.” The third lawyer noted, “Only recently have enlightened and courageous defendants been willing to give their lawyers the opportunity to push the courts into rulings which would help build a defense for the position of the homosexual. Homophile groups can lend support to these defendants.”

Reacting favorably to the comments made by the three lawyers, Frank Kameny asked if they were “willing to form a board to look into the possibility of a coordinated, multi-attorney approach to planned legal strategy.” After a positive response, Carliner noted that “the NAACP has raised a legal defense fund” and Kameny “proposed that such a plan be the first order of business for the new Board.” Sure enough, in the second half of the 1960s the National Legal Defense Fund in San Francisco and the Homosexual Law Reform Society in Philadelphia were established to pursue gay rights law reform through the courts, while homophile groups around the country pursued similar strategies to challenge employment discrimination, immigration restrictions, police harassment, sodomy law enforcement, and sexual censorship.

Over time, court-based strategies gained more support in the movement. Toward the end of 1965, an article in ONE highlighted the importance of the magazine’s victory in an earlier Supreme Court obscenity case: “A U.S. Supreme Court decision creates ‘case law’ which is binding upon the Courts of all the States. It is as if all of the legislatures had in that particular matter acted favourably.” At a 1965 conference, psychoanalyst Ernest van den Haag “urged the homophile organizations to do what Negro groups have done successfully—they should get test cases in the courts and try to get the laws against homosexual acts invalidated.” Shortly thereafter, Clark Polak wrote in a gay magazine that the Supreme Court’s decision in the Griswold birth control case had bolstered his confidence and shifted his focus: “Law reform will not be effectuated through the State Legislatures” since “few elected legislators are willing to risk a brand as one who advocates perversion.” Polak wrote that for this and other reasons, “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. Clear appreciation of the value of Church-State separation is another.” In 1966, Ernestine Eckstein, an African American member of the NAACP and several homophile organizations, observed in a lesbian magazine, “I don’t find in the homophile movement enough stress on courtroom action. I would like to see more test cases.” Later in 1966, a lesbian conference panel concluded that “legal improvements” were “far more likely…to be made through judicial processes than by State legislatures” because the courts were “freer from inhibiting political pressures.”

By 1968, homosexual law reform efforts were significant, visible, and noteworthy enough to merit a front-page story in the Wall Street Journal. The Homosexual Law Reform Society was described as “one of the more active legal aid groups” and Polak was quoted as saying, “Until recently, the only court cases we got involved in were the ones we couldn’t avoid…. Now we are very much concerned with initiating litigation.” HLRS’s greatest success came in a New Jersey gay bar case in 1967. One year earlier, a gay magazine report about this case had predicted “a long drawn-out legal battle, culminating in a U.S. Supreme Court case.” This was described as “unfortunate” for the bar, but “fortunate” for “the homosexual community,” since “a favourable ruling by the U.S. Supreme Court…would firmly establish the homosexual’s freedom of assembly in every state.” The article also asserted that “the ‘legalization’ of gay bars would establish a precedent” and the case could be “as important to the homophile movement as the school-desegregation case was to the Negro rights movement.” As it turns out, gay rights advocates won a qualified victory in the New Jersey Supreme Court, which effectively ended the litigation.

HLRS was less successful when it joined forces with the American Civil Liberties Union and lawyers affiliated with the American Committee for the Protection of the Foreign Born to defend a U.S. permanent resident subject to deportation. Clive Boutilier, a Canadian citizen who had lived as a legal resident in the United States since 1955, applied for U.S. citizenship in 1963. After he acknowledged that he had been arrested (though not convicted) on a sodomy charge in New York City in 1959, Boutilier was ordered deported by the Immigration and Naturalization Service. Under a U.S. law passed in the 1950s, aliens “afflicted with psychopathic personality” were excludable and deportable from the United States, and the INS interpreted this provision to apply to “homosexuals.” In a 6-3 decision in 1967, the U.S. Supreme Court upheld the law and the INS’s use of it, in part because Congress could classify homosexuals as psychopaths if it wished to do so and in part because Congress could order the exclusion and deportation of aliens with “characteristics” that were “forbidden.”

Boutilier was by no means the gay movement’s only significant setback in cases appealed to the Supreme Court in the 1960s. In various gay-related immigration, employment discrimination, obscenity, and sodomy cases, the Court either declined to accept the appeals for argument or issued summary dismissals. Meanwhile, concurring opinions in the 1965 Griswold birth control case referred to the ongoing legitimacy of laws against homosexuality and the majority opinion in the 1966 Mishkin obscenity case upheld a conviction based on materials “designed for and primarily disseminated to a clearly defined deviant sexual group.” Nevertheless, the Boutilier decision was a uniquely devastating loss for the gay and lesbian rights movement. Not since the victory in ONE had the movement focused as much attention and as many resources on a Supreme Court case. Never before had the justices accepted a policy or practice that designated “homosexuals” as “psychopaths,” with potentially huge ramifications for the rights of those classified as such. The setback was also a sustained one: for the next seventeen years, gay rights advocates failed to convince the Supreme Court to accept one of their cases for consideration.

In today’s political context, there’s much to be learned by revisiting the early years of gay and lesbian rights appeals to the Supreme Court. One lesson is the clear historical influence of the struggle for racial equality on the struggle for sexual equality. Other lessons relate to the reasons the early gay and lesbian rights movement identified the courts in general, and the Supreme Court in particular, as favored instruments of legal reform. Most movement leaders in the 1950s and 1960s did not think that their proposals for reform would be supported by popular or legislative majorities, but they viewed the courts as institutionally and politically positioned to stand up for minority rights and constitutional rights. On an institutional level, they knew that the Constitution and the Supreme Court were designed (in theory) to constrain the tyranny of popular and legislative majorities. On a political level, they knew that the Court of the 1950s and 1960s was dominated by moderates and liberals. They believed that timing was on their side. Decades later, with public support for same-sex marriage growing and with the Supreme Court still dominated (as it has been for the last forty years) by Republican appointees, it’s not clear that we are in a similar moment today, though there may be reasons to be hopeful about the pivotal role that Justice Anthony Kennedy will likely play (which I plan to address in a forthcoming article).

There are other lessons to be learned about the promise and perils of seeking legal reform through Supreme Court decisions. On the one hand, gay and lesbian rights advocates were right when they argued in the 1950s and 1960s that Supreme Court decisions can be powerful instruments of legal reform, capable of nationalizing legal reforms that would otherwise face variable prospects across different state and local jurisdictions. On the other hand, the perils are painfully evident when we consider the failure of gay and lesbian rights advocates to have a case accepted for consideration by the Supreme Court for a generation after the devastating loss in the 1967 Boutilier case.

Marc Stein’s latest book, Sexual Injustice: Supreme Court Decisions from Griswold to Roe, has just been published by the University of North Carolina Press. The author is an associate professor of history, women’s studies, and sexuality studies at York University in Toronto. His previous works include City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia and the award-winning Encyclopedia of Lesbian, Gay, Bisexual, and Transgender History in America.