Margot Canaday. Law & Social Inquiry. Volume 28, Issue 2. University of Chicago Press, 2003.
“For all orderly processes, we must in some way classify … man.” — Dr. Dahlgren, U.S. Public Health Service, 1959
In 1994, the U.S. Armed Services adopted the don’t-ask/don’t-tell policy. Ostensibly an improvement over an outright ban on homosexual service-members, the new policy proposed to discharge soldiers for engaging in homosexual activity, but not for the simple fact of being gay or lesbian. In contrast to the preexisting policy, don’t-ask/don’t-tell claimed to punish conduct but not status. But critics of the new policy have argued that the distinction between conduct and status has never been maintained in practice. Rather, the military infers homosexual conduct from homosexual status. “Doing things that make your commander think you are gay—like making pro-gay statements, or cutting your hair a certain way, or not fitting the gender stereotype of the sex you belong to,” explains legal scholar Janet Halley, “can be the basis for an inference that you have engaged in or might someday engage in homosexual conduct” (1999, 2).
The don’t-ask/don’t-tell policy is based on the idea that homosexual identity reveals a propensity to act because homosexual acts are themselves considered a symptom and confirmation of homosexual identity. Critics of don’t-ask/don’t-tell have responded to the policy as though it were an even more illogical departure in the state’s attempt to regulate homosexuality. Yet while certainly misguided, don’t-ask/don’t-tell is not really a departure. Rather, the policy follows a template now in existence for nearly half a century. The seemingly illogical don’t-ask/don’t-tell policy could be adopted in 1994 because the notion that homosexual acts confirm homosexuality as identity had been established as a given years before. This essay examines a much earlier case of state policy making—mid-twentieth-century American immigration law—and focuses on the process by which two competing paradigms for understanding homosexuality (status and conduct) were consolidated into a single model in which homosexual identity could be deduced from homosexual acts.
I construct my argument by exploring tensions between status and conduct in the first generation of federal court cases dealing with homosexuality among immigrants. I begin by examining the passage of the 1952 Immigration and Nationality Act (also known as the McCarran-Walter Act), which contained two anti-homosexual provisions. One provision was based on conduct and treated homosexuality as a behavior; it barred from entry immigrants who had committed unspecified “crimes of moral turpitude.” A second provision relied on the notion that the homosexual was a type of person; it barred immigrants based on status by excluding homosexuals as persons “afflicted with psychopathic personality.” Initially, as the court cases examined in the following pages reveal, Immigration and Naturalization Service (INS) officials and the courts relied more on the conduct provisions of the law, deporting immigrants who engaged in homosexual acts as having committed crimes of moral turpitude. But this strategy was not without its liabilities. From a practical viewpoint, criminal law charges entitled a defendant to certain procedural protections. Moreover, crimes of moral turpitude were defined by state criminal statutes, which varied in their treatment of homosexual behavior and thereby usurped some of the federal power to control immigrants.
The status provision of the law was not hamstrung by state criminal laws and therefore provided a better foundation for a uniform federal response to homosexuality. Accordingly, and as the court cases analyzed below demonstrate, as time went on INS officials and federal judges increasingly emphasized the psychopathic personality provision of the 1952 McCarran Walter Act. Yet while the government used the psychopathic personality clause to exclude immigrants based on status, immigration officials frequently relied on conduct (often criminal charges) as evidence of status. That conduct underlay these status charges enabled immigrants and their lawyers to demand some of the protections of criminal law or to refuse the status altogether, calling on an older regime of sexual identity that severed acts from personhood by insisting that occasional conduct did not make one homosexual.
I go on to argue that government officials trumped these efforts by anchoring homosexual status in psychiatric definitions. The psychopathic personality provision secured homosexuality as a coherent identity by cloaking it in the mantle of scientific authority. But the ambiguity written into the law—psychopathic personality was used in the text of the statute, but not the word homosexual—would profoundly affect the state’s attempts to manage immigrants charged with homosexuality. The law as it was written in 1952 vested the power of the state in medical experts because it depended upon psychiatrists to support the claim that homosexuals were by definition psychopathic.
Those charged with enforcing the anti-homosexual provisions of the immigration law came to regret the law’s dependence on psychiatry. In the 1950s and 1960s, psychiatry was a liberalizing profession. Greatly influenced by Kinsey’s ideas, many psychiatrists didn’t share the same investments as the courts, the Congress, and the INS in the nexus between homosexuality, sickness, and subversion. When many psychiatrists refused to testify in immigration cases that homosexuals were psychopathic, state authorities were left in the awkward position of rejecting expertise in the age of experts. I then conclude that the INS and the courts increasingly reclaimed authority from psychiatrists by asserting that homosexuality and psychopathic personality were, in fact, legal and not medical terms.
This essay traces the government’s attempt to regulate immigrants at midcentury, asserting that such attempts illustrate how state authorities struggled to make homosexuality visible, to produce a homosexuality that could be both detected and managed. At issue was a tension between homosexual acts and homosexual personhood. “Who [is] a homosexual?” pointedly asked one immigrant’s lawyer in defense of his client (Boutilier v. INS 1967, Supreme Court Records and Briefs, 9). Was homosexuality a kind of conduct—a crime that carried with it the procedural protections of criminal law? Or was homosexuality a status—a kind of person? And if the latter were true, how was one to ascertain that status with any certainty? Was a homosexual necessarily a psychopathic personality? If homosexuals were not psychopathic, as many psychiatrists argued in the 1950s, did that mean that homosexual immigrants should be allowed in the country?
Immigrants and their defenders consistently pointed to the contradictions between the status and conduct provisions of the law, destabilizing homosexuality as identity by asserting either that homosexual conduct did not make one homosexual or that homosexuals were not psychopathic, and therefore not covered by the law. Ultimately, these attempts failed. By the late 1960s, federal authorities relied almost exclusively on the notion that homosexuality defined a kind of person (revealed through homosexual acts), and further, they refused psychiatric opinion that differentiated psychopaths from homosexuals by arguing that these terms connoted legal-political rather than medicalized identity categories. While this strategy for dealing with homosexuality among immigrants arose out of a conservative impulse by immigration officials and the courts to fix homosexuality as identity so that it could be regulated (by bureaucrats rather than psychiatrists), I argue in a concluding section that the emphasis on legal-political identity categories licensed a conception of the homosexual as a kind of citizen that had some emancipatory as well as repressive effects.
The 1952 McCarran-Walter Act
The anti-homosexual provisions of the McCarran Walter Act cannot be understood apart from the Cold War context of 1950s America. Historians consider the 1950s to be the nadir of homosexual life in America. After the fall of China to communism, the successful Soviet detonation of an atom bomb, and the conviction of Alger Hiss, Senator Joseph McCarthy sought to destroy the Truman administration by charging that it had been infiltrated by both communists and homosexuals. In 1950, the Senate conducted a massive investigation into “sex perverts” in the federal government, resulting in Eisenhower’s executive order barring homosexuals from federal employment, countless firings, and even more security investigations. The military also purged homosexual personnel from its various branches—as many as 3,000 each year by the late 1950s (D’Emilio 1992). But what began as a partisan attack on the Truman administration became, over the course of the decade, a much more widespread belief that homosexuals were, like communists, not only unnatural but dangerously subversive. According to this view, both communists and homosexuals could easily blend into the mainstream, where they corrupted the bodies and minds of the young and launched a full scale attack on American political and social institutions, including gender and familial arrangements (D’Emilio 1992, 64). The dominant political and cultural ethos of the decade held that homosexuals posed a serious threat to the American way of life.
Historians have explained the homosexual “kulturkampf” of the 1950s as a reaction to the way in which World War II both created the conditions for a massive expansion in homosexual subcultures across the nation and destabilized gender roles more generally. “The anti-homosexual campaigns of the 1950s,” John D’Emilio writes, “represented but one front in a widespread effort to reconstruct patterns of sexuality and gender relations shaken by depression and war” (1992, 68). The kulturkampf arose not only because homosexual populations were more visible than ever before, but also in reaction to the idea that homosexuality might not be confined to any population at all. Alfred Kinsey’s 1948 study, Sexuality in the Human Male, asserted that there was no such thing as a homosexual person, but only homosexual acts. Moreover, Kinsey presented the startling statistic that some 37% of American men had engaged in homosexual contact to the point of orgasm.
The notion that homosexuality was a behavior and not a category of identity was profoundly threatening as it raised the specter of homosexuality lurking within all Americans. But homosexuality became an obsession with state authorities in the 1950s, not just because it was potentially so widespread, but because of the unique function that homosexuality served in 1950s political culture. The paranoid rhetorical linkages between communism and homosexuality suppressed political dissent by tarring some with the brush of pollution and thereby marginalizing them from the political life of the nation. The rhetorical exclusion of homosexuals from the polity not only marginalized those on the left, it also created an excluded figure against which a citizenry supposedly now unified along racial and class lines could define itself.
Given the association between homosexuality, communism, and foreign subversion, it is hardly surprising that the state’s need to render homosexuality visible would emerge in especially profound terms in immigration law. The 1950 congressional hearings on the employment of sex perverts in the federal government were undoubtedly a catalyst for the adoption of anti-homosexual provisions in immigration law. Indeed, historian Randolph Baxter suggests that the new immigration provisions were championed by Herbert O’Conor, who had served on the 1950 congressional committee investigating the infiltration of homosexuals into the federal government (Baxter 1999, 541).
Initially, the Senate Committee on the Judiciary advocated the use of explicit language in the new immigration bill, and proposed legislation that barred immigrants who were “psychopathic personalities” or “homosexuals and sex perverts” (Senate 1950, 345). But after consulting with the Public Health Service (PHS), Congress dropped explicit language barring homosexuals. While conceding that the psychopathic personality terminology was “vague and indefinite,” the PHS asserted that it was “sufficiently broad” to cover homosexuals (House 1952, 46; Senate 1952, 9). The PHS report to Congress stated that “psychopathic personalities” who are “ill primarily in terms of society and the prevailing culture … frequently include those … suffering from sexual deviation” (House 1952, 46–47). With this assurance, Congress kept only the psychopathic personality terminology, dropping the words “homosexual” and “sex pervert” from the proposed legislation, but then noting in a report that “this change of nomenclature is not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates” (Senate 1952, 9).
Representative Emmanuel Cellar criticized the use of psychopathic personality as overly vague. “It’s as broad as a barn door,” he exclaimed during congressional hearings. “What does it mean? … We are revising the code to clear away [these] barnacles.” But Representative Cellar was similarly critical of any attempt to ban the entry of homosexuals and sex perverts:
Now I am not an expert on this, but how in the world is the inspector going to determine whether the person before him is homosexual? He certainly would have to do it in one of two ways, by investigation or by test. Is he going to have “test girls” or “test boys”? … Every inspector would have to have a volume of “Dr. Kinsey” with him … How could you find out? It is a hard nut to crack. (Senate and House 1951, 361–62)
Cellar’s tirade reflected the increasingly widespread belief that homosexuals, like communists, could easily slip into the country undetected. The PHS acknowledged that detecting homosexuality was a matter of some difficulty. It was easy enough, the PHS’s report to Congress stated, when homosexuality manifested itself in unusual dress or behavior. But more typically, a history of homosexuality had to be obtained from the individual, “which he may successfully cover up.” Psychological tests might help uncover homosexuality, the report stated hopefully, even when individuals were unaware of the condition in themselves. The PHS report also lamented, however, that no laboratory tests could reliably determine homosexuality in every case. Still, the psychopathic personality clause made the inspectors’ task a little easier, because “in those instances [where] the disturbance in sexuality may be difficult to uncover, a more obvious disturbance in personality may be encountered which would warrant a classification of psychopathic personality or mental defect” (House 1952, 46–47). The vagueness of the psychopathic personality provision in the law, in other words, gave it some additional power to vet homosexuals, who, Public Health Service officials believed, most likely possessed some form of mental illness besides their sexual aberration.
The McCarran-Walter Act, an omnibus immigration bill reaffirming the national origins quota system, was finally passed in 1952 over President Truman’s veto. The relatively uncontroversial psychopathic personality provision barred the entry of any person who at the time of entry acknowledged being or was found to be homosexual. The law required that suspected homosexual aliens be sent to a PHS official to be examined. After a brief examination (usually an interview), the PHS official issued a “Class A” certification to the INS. “This certificate subsequently constituted the sole evidence for exclusion or deportation at the … hearing,” according to legal scholar Shannon Minter (1993, 778).
At the time the McCarran-Walter Act was enacted, many jurists, legislators, and immigration officials assumed that the “psychopathic personality” provision simply updated language in the 1917 Immigration Act that barred the entry of “constitutional psychopathic inferiors. Constitutional psychopathic inferiors were—according to a 1918 Public Health Service manual for alien examination—“the moral imbeciles, the pathological swindlers, the defective delinquents, many of the vagrants and cranks, and persons with abnormal sexual instincts” (Public Health Service 1918, 45). But despite the inclusion of this last group, the psychopathic inferior clause was used only rarely against aliens who engaged in same-sex sexual behavior or who exhibited signs of gender nonconformity. If those aliens were to be excluded or deported, and this was not always the case, it was more often as aliens who were likely to become public charges, or as aliens who had committed crimes of moral turpitude.
Accordingly, the moral turpitude clause augmented the psychopathic personality provision in the 1952 legislation. Long used against immigrants who were found to have engaged in homosexual activity, the moral turpitude clause had “deep roots” in the law, and some version of the provision had been on the books since 1891 (Jordan v. DeGeorge 1951, 223, 227). Since the 1930s, courts had defined moral turpitude as “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men…” (Ng Sui Wing v. United States 1931, 755–56). Under the McCarranWalter Act, the moral turpitude provision excluded from admission aliens convicted of a crime of moral turpitude or “who admit having committed a crime involving moral turpitude or acts which constitute the essential elements of such a crime.” Additionally, aliens could be deported if they were convicted within five years of entry of a crime of moral turpitude and sentenced to confinement for a year or more, or convicted of two crimes of moral turpitude at any time after entry and regardless of sentence (Harms 2001).19 While neither the Congress nor the courts have ever enumerated a list of crimes that constitute moral turpitude, homosexual acts have long been considered to belong to this class (Minter 1993, 783–91).
Federal Court Cases
Most homosexual immigrants came into contact with the INS at midcentury because they had been caught in the snares of state law enforcement. After an alien’s arrest—sometimes for a public sex act, but more often for loitering in public parks or bathrooms—public authorities were supposed to contact the INS. They did so irregularly, and sometimes it wasn’t until an alien left the country on a family visit or vacation and then reentered the country that the INS became aware of criminal charges that might indicate homosexuality. Once the INS uncovered a potential violation of immigration law, it conducted an investigation. At the conclusion of the investigation, a special inquiry officer issued a decision. Immigrants had to appeal these decisions administratively to the Board of Immigration Appeals (BIA) before taking their cases to the federal courts.
As would be true with most federal cases involving homosexuality and immigration, the first of these cases appealed to the federal courts shifted clumsily between conduct and status provisions of the immigration law. Roberto Flores-Rodriguez, an unmarried Cuban, was arrested for disorderly conduct on a visit to New York City in September of 1950. According to the police report, Flores-Rodriguez loitered at the men’s toilet at Duffy’s Square, and moved “from one urinal to several others … manipulate[d] the exposed and naked parts of his person, to wit, his penis, to the view of others, and … motion[ed] with his head in the direction … of several others in said toilet.” Flores-Rodriguez was sentenced by the City Magistrate’s Court to thirty days imprisonment, but the sentence was suspended and Flores-Rodriguez was allowed to return to Cuba (United States v. Flores Rodriguez 1956, 405).
Two years later, Flores-Rodriguez appeared at the Consulate in Havana to apply for an immigration visa. When asked if he had ever been arrested or convicted, Flores-Rodriguez said no. His visa was granted, and he entered the United States as a permanent resident, settling in New York City. In June of 1954, Flores-Rodriguez was again arrested and convicted of disorderly conduct. His 30-day sentence was of minor consequence except that it brought his case to the attention of immigration officials who ordered Flores-Rodriguez deported on the grounds that his entry had not been valid because he failed to disclose his 1950 conviction for homosexuality.
Because Flores-Rodriguez’s difficulty with the INS was the result of his criminal conviction for disorderly conduct, his deportation initially rested on the conduct-based moral turpitude provision of the law. Flores-Rodriguez appealed his deportation on these grounds, arguing before the Board of Immigration Appeals that because disorderly conduct, under New York state law, was an offense rather than a crime his failure to disclose was not material. (He could not be deported for a crime of moral turpitude, in other words, when he had been convicted of an offense and not a crime.) The BIA initially agreed. But after the INS filed a motion for reconsideration, the BIA reversed itself (United States v. Flores-Rodriguez 1956, Trial Records). Flores-Rodriguez then appealed his deportation to the Second Circuit of the Court of Appeals, which heard his case in 1956.
Given the BIA’s initial ruling, much of the Second Circuit’s decision was devoted to proving that Flores-Rodriguez had, in fact, committed a crime of moral turpitude under the immigration law. Despite the holding of New York state courts that an “offense” of disorderly conduct was neither “crime” nor “misdemeanor,” the Second Circuit held that “an Act of Congress should not be necessarily circumscribed” by the New York courts. How odd it would be, the court reasoned, for an alien convicted of the crime of disorderly conduct in Washington, D.C., to be deported, while an alien convicted of the offense of disorderly conduct in New York would be allowed to remain. Congress, the Second Circuit wrote, had clearly expressed its disapproval of behavior like that of Flores-Rodriguez, and therefore could not have intended such a result (United States v. Flores-Rodriguez 1956, 410).
Because the offense/crime distinction weakened the conduct charge against Flores-Rodriguez, the government’s brief in the case bolstered the conduct charge with a status charge. Flores-Rodriguez had applied for his visa before the passage of the McCarran-Walter Act, so the government argued that had Flores-Rodriguez revealed his 1950 arrest to the consulate, he might have been excluded as a “constitutional psychopathic inferior” or as a mental defective under the 1917 immigration act. The ruling opinion acknowledged that the government, in lodging its charge that Flores-Rodriguez was a constitutional psychopathic inferior, had “offered no evidence, whatever … to the effect that a homosexual who solicits unnatural acts in a public place comes within that category.” But the Second Circuit reasoned that because Flores-Rodriguez had admitted being a homosexual to the investigating INS officer in 1955, “together with the fact of defendant’s conviction which in itself was evidence of homosexual tendencies of an extremely offensive and exhibitionistic nature,” Flores-Rodriguez was potentially subject to exclusion as a constitutional psychopathic inferior. His failure to disclose his 1950 arrest was therefore material to his entry, the Second Circuit ruled, upholding the deportation order for Flores-Rodriguez (United States v. Flores-Rodriguez 1956, 405, 410).
In his concurring opinion, Judge Frank voiced his discomfort with the majority’s ruling, as he feared that the intent of the 1952 Act was being read back into the 1917 legislation. Before coming to the conclusion that the constitutional psychopathic inferiority clause was meant to include homosexuals, Judge Frank argued, “we should have asked the government to assist us by … supplying us with such data as, by diligent research, it might discover” (United States v. Flores-Rodriguez 1956, 405, 413–14 [Frank, J., concurring]). Because no such research was conducted, both the U.S. attorney and the Second Circuit emphasized the antisocial nature of Flores-Rodriguez’s acts, thereby implying that the particular public expression of his homosexuality qualified him as a psychopathic inferior. This linkage between homosexuality and psychopathy rested on the long-standing notion that psychopaths were unable to control antisocial impulses and to adapt to the norms of the communities in which they lived. Hence the government’s brief in the case noted that “Defendant is not merely homosexual,” but that “his illness has twice manifested itself in public anti-social behavior” (Flores-Rodriguez 1956, Trial Records, 23). The Second Circuit further observed that a deviate who solicited an unnatural act as Flores-Rodriguez had, “will find it extremely difficult to adapt himself and to become a useful member of the American community” (United States v. Flores-Rodriguez 1956, 405, 412).
This discussion of psychopathy and the related shift from conduct to status provisions of the law—the shift, in other words, from the notion that homosexuality was a behavior to the idea that the homosexual was a kind of person—thus introduced citizen-motifs into the discussion of an alien’s potential deportation. Psychopaths were problematic as citizens precisely because they flouted convention, according to William Alanson White, a leader of the American mental hygiene movement. “The individual who manifests a kind of conduct that is calculated to tear down the existing conventions, to deviate greatly from the normal conduct of the community,” White wrote, “has to be relegated to some place other than a position of free citizenship” (Minton 2002, 55). Later, immigrants held for deportation under the 1952 act who more closely conformed to societal mores would use this same logic to challenge the notion that homosexuals were by definition psychopathic—and they would call on psychiatric expertise to bolster this claim. While this development still had not materialized in 1956, Judge Frank issued a prescient warning: “I think it a mistake,” he wrote, “for my colleagues needlessly to embark—without a pilot, rudder, compass or radar—on an amateur’s voyage on the fog enshrouded sea of psychiatry. (United States v. Flores-Rodriguez 1956, 405, 412 [Frank, J., concurring]).
Frank’s warning was based on the lack of clarity in the 1917 Immigration Act concerning the definition of constitutional psychopathic inferiority. Perhaps heeding his warning, in several subsequent cases in which an alien’s entry occurred before the enactment of the McCarran-Walter Act (and the adoption of the psychopathic personality provision), neither the INS nor the courts attempted to use the constitutional psychopathic inferiority clause, relying solely on the conduct provisions of the law. Many of these cases involved, like the Flores-Rodriguez case, disorderly conduct convictions in states where that conviction was an offense and not a crime (and hence not covered as a crime of moral turpitude). In these cases, the courts followed Flores-Rodriguez in asserting that “deportation is solely a federal power” and that the federal courts were not required to “slavishly follow state law” (Babouris v. Esperdy 1959, 621; Babouris v. Murff 1958, 503). Like Flores-Rodriguez, Robert Wyngaard, a Dutch immigrant residing in Washington, D.C., had been convicted for an offense of disorderly conduct in New York City. His counsel argued that it was not clear that Wyngaard’s conviction fell within the vaguely defined moral turpitude provision, not only because it was an offense and not a crime but also because of widely disparate reactions to homosexuality—between state and federal governments and within society at large. Could Wyngaard have committed moral turpitude, his attorneys asked, “in view of the fact that consensual homosexual behavior is not a crime universally or in the District of Columbia … [and] in light of current knowledge [that such conduct] … is not regarded as necessarily vile or depraved, and the fact that under New York law the offense here is regarded as merely a minor breach of the public peace?” (Wyngaard 1961, Trial Records, 9, 16).
However lenient New York state (or society in general) was in its attitude towards homosexuality, the D.C. District Court and the D.C. Circuit followed the Second Circuit’s decision in Flores-Rodriguez. “The Second Circuit very cogently argues that what constitutes a crime involving moral turpitude is a Federal question,” the D.C. District Court argued, “and is not dependent on the manner in which State law classifies the violation of law” (Wyngaard v. Rogers 1960, 527). But the repeated court challenges as to what constituted crimes of moral turpitude proved the point of one federal judge, who argued that the moral turpitude clause “hampers uniformity” (Wyngaard 1961, Trial Records, 12).
The psychopathic personality provision did not seem to share the same liabilities. Under the psychopathic personality clause, federal immigration officials and federal courts could decide—based on state convictions for offenses like disorderly conduct—that an alien was a psychopathic personality. As such, the clause enhanced the power of the federal government to remove aliens charged with homosexuality from the country, regardless of how homosexual offenses were treated at the state level. The status provision of the act bolstered the power of the federal government over immigrants not only because it reasserted federal authority over state law, but because status charges in general were vague and not easily refuted. The moral turpitude provision subjected aliens to deportation if they were convicted within five years of entry of a crime of moral turpitude and sentenced to confinement for a year or more, or convicted of two crimes of moral turpitude at any time after entry. The psychopathic personality provision only required, by contrast, that one seem to be homosexual. Sometimes aliens were deported as psychopathic personalities who were not technically deportable under the moral turpitude clause.
The first federal court case to rely on the psychopathic personality provision was Ganduxe y Marino v. Murff in 1959. As would be true with most psychopathic personality cases, the charge depended on the alien’s conduct—a single minor conviction—as evidence of status. In Ganduxe, the court successfully shifted the focus from Ganduxe’s acts to the presumption that such acts confirmed his homosexuality, and by extension, his status as a psychopathic personality. The facts in the case closely paralleled those of Flores-Rodriguez. Ganduxe was a Cuban alien who had been arrested and convicted during a 1953 visit to New York City for loitering for “the purpose of inducing men to commit acts against nature.” Like Flores-Rodriguez, he concealed the conviction when applying for his visa at the consulate in Cuba. He had been living in the United States for one year when the Immigration Service served Ganduxe with an order to show cause as to why he should not be deported. At an investigatory hearing, Ganduxe testified that he was not a homosexual. Ganduxe offered to be examined by the Public Health Service, since as his lawyer argued, “It is a medical question and not a factual question on whether or not a person is or is not afflicted with psychopathic personality.” When the government refused his offer, Ganduxe presented a letter from a board-certified psychiatrist who stated that Ganduxe was neither a psychopath nor an overt homosexual, further ascribing the alien’s arrest to alcohol and “linguistic difficulties.” Moreover, the psychiatrist wrote, “Mr. Ganduxe claims that his interests are heterosexual ones and that he is unofficially engaged to a girl residing in Cuba.” Apart from the conviction, Ganduxe’s brief to the court stated, “There was no affirmative evidence in the record that the appellant is homosexual” (Ganduxe 1960, Trial Records, and Ganduxe 1959Trial Records). Ganduxe’s lawyer concluded that his client’s case differed in this respect from Flores-Rodriguez.
When Ganduxe’s case was appealed to the district court, the government did not have to prove that Ganduxe actually was a psychopathic personality or a homosexual. The government only had to make the case that Ganduxe had lied about something that was material to his entry. Ganduxe’s lawyer had argued that materiality required not just the possibility of a refusal of the visa but “the probable existence of a ground of inadmissibility.” Given that the government had failed to show that Ganduxe was a psychopathic personality—and ignored the opinion of Ganduxe’s doctor that he was not—Ganduxe’s counsel was skeptical that the alien’s misrepresentation was, in fact, material to his entry (Ganduxe 1959, Trial Records).
“Materiality is a matter of degree,” the district court concluded, ruling in favor of Ganduxe’s deportation, and contrasting his case with that of another alien, not deported, who had failed to disclose her residence in Russia for fear she would be barred entry as a communist. “Disclosure of residence in Russia for a year and a half is not nearly so likely to result in a refusal of a visa on the ground of membership in the Communist party,” the court wrote, “as pleading guilty to loitering to solicit homosexual acts is to result in refusal of a visa on the ground that the alien is afflicted with psychopathic personality, i.e.: is a homosexual” (Ganduxe y Marino v. Murff 1959, 565).
Ganduxe’s case demonstrates how even minor acts could be taken as evidence of psychopathic personality. The defendant in the contrasting case had spent 18 months in Russia. Ganduxe had been in a public restroom for 20 minutes. He had not been charged with homosexual acts, or with soliciting acts, but with loitering to solicit homosexual acts. The crime of loitering was trivial—he was fined $25—except in so far as it revealed Ganduxe as a homosexual person. Perhaps Ganduxe understood this dynamic when he defended himself not only by denying the crime but also by arguing that the crime was not a reliable indicator of his personhood. It is also possible that Ganduxe genuinely understood himself as heterosexual. According to the sexual regime operative among Latino immigrants in New York City in the 1950s, even had Ganduxe engaged in homosexual acts, it would not have compromised his own heterosexual status as long as he performed the masculine role in sexual relations. The court’s ruling rejected such logic by linking homosexual acts to homosexuality as identity and thereby pathologizing both. There were then fewer and fewer ways to engage in homosexual sex acts and still maintain a normative sexual identity, as those acts were increasingly construed by the court as the outer symptoms of a pathological or perverse personhood. This shift rendered immigrants whose culture provided a different understanding of acceptable sexual expression especially vulnerable.
As the universe of normative sexuality became more restricted, with homosexuality increasingly construed as an identity to be confirmed by acts, some aliens barely resisted the charge of homosexuality but argued instead that homosexuality did not make one psychopathic. In doing so, they often turned to medical and/or mental health professionals as allies. Sara Harb Quiroz was stopped at the U.S.-Mexico border after a family visit, according to historian Eithne Luibheid, because her short hair and trousers made her look like a lesbian to the immigration official who stopped her (Luibheid 1998, 483). After an initial attempt to deny her homosexuality, Quiroz admitted to the INS “that she had homosexual desires for at least a year … [and] had homosexual relations on numerous occasions over this period of time with two women … with weekly frequency” (Lubheid 1998, 493). When her case reached the federal courts in 1961, Quiroz asserted that her homosexuality did not make her a psychopathic personality. Quiroz’s lawyer argued that Congress had not defined psychopathic personality, and even if Congress had the (doubtful) power to relegate the question to the Public Health Service, the latter body had not stated that the psychopathic personality terminology always included sexual deviates (Quiroz 1961, Trial Records, 5). “Since law is silent on the criteria or definition of a psychopathic personality,” Quiroz’s attorney wrote, “the only alternative to which law can turn is medicine.” The brief cited the evidence presented by two doctors at the INS hearing, who argued that while it was clear that Quiroz was a homosexual, it was not similarly obvious that she was a psychopathic personality. Remarkably, one of these doctors was a Public Health Service surgeon who testified that while PHS regulations included all homosexuals as psychopathic personalities, he was not certain that Quiroz was “medically a psychopathic personality.” The other doctor—a psychiatrist— testified that Quiroz’s traits of “trustworthiness, conscientiousness, and hard work…” indicated that she was not a psychopathic personality (Quiroz 1961, Trial Records, 3–5).
Highlighting Quiroz’s role as a useful member of her community was an attempt to reverse the discourse that associated psychopaths with those utterly devoid of the characteristics of good citizens. Perhaps because the psychiatrist’s emphasis on strong work habits would not have carried as much weight in Quiroz’s case as they might have for a male immigrant, the attempt failed, and the Fifth Circuit rejected Quiroz’s appeal. Presented with evidence from the two doctors that homosexuals were not necessarily considered psychopathic personalities by the medical profession, Judge Jones quoted Judge Frank’s concurring opinion in Flores-Rodriguez that it was a mistake “to embark … on the fog enshrouded sea of psychiatry.” Ironically, courts cited Frank’s opinion, according to legal scholar Shannon Minter, “to bypass the ambiguities of clinical discourse about homosexuality and use convictions of homosexual offenses as proof of a ‘psychopathic personality’ under the 1952 Act.” Almost as soon as the courts began to rule on cases that involved the psychopathic personality charge, then, they distanced themselves from the discipline of psychiatry. Judge Jones then cited the legislative history of the act which stated that Congress’s adoption of the PHS terminology psychopathic personality in no way modified congressional intent to exclude homosexuals. “Whatever the phrase ‘psychopathic personality’ may mean to the psychiatrist, to the Congress it was intended to include homosexuals and sexual perverts,” Jones wrote. “It is that intent which controls here” (Quiroz v. Neelly 1961, 906–7).
Amid a string of unfavorable decisions for aliens charged as psychopathic personalities during this period, George Fleuti’s case stands out. Atypically, the Ninth Circuit in Fleuti treated homosexuality as conduct, and argued, in essence, that had Fleuti been able to interpret the hopelessly vague psychopathic personality clause he could have avoided the behavior that made him a homosexual. Fleuti, a Swiss alien, worked as the front office manager at the Ojai Valley Inn and Country Club. He had been living in the United States since 1952 and had also done administrative hotel work in Los Angeles (Rosenberg 1963, Supreme Court Records, 4). He was convicted in 1953 as “willfully and lawfully a dissolute person” and in March of 1956 for an act of oral copulation (Rosenberg 1963, Supreme Court Records, 42). It wasn’t until another arrest (later dismissed) in November of 1958, that the INS began deportation proceedings on moral turpitude grounds (Matter of Fleuti 1965).
In the spring of 1959, an investigator from the INS obtained a statement from Fleuti that he had engaged in homosexual relations about once a month for 22 years. Fleuti explained the circumstances surrounding his 1956 arrest:
In Switzerland, whenever I and one of my friends performed homosexual relations, we did it in private rooms or apartments. We … were never caught or arrested. In Los Angeles, I was unfortunate enough that I did it in a park and was arrested. Ever since that … I have felt that the United States Immigration might be looking for me because I heard that such things were reported to Washington, so I have been very careful. (Rosenberg 1963, Supreme Court Records, 75)
When the examining officer concluded that Fleuti was not deportable on moral turpitude grounds on a technicality, the INS used testimony from the investigation to request a reopened hearing on psychopathic personality grounds. During the reopened hearing, Fleuti denied the truth of the statements he had made to the INS investigator, but affirmed that he had been examined by a PHS surgeon who had certified him as a psychopathic personality. That doctor, who conceded that he had no formal psychiatric training, noted that he had based that determination on “the history and documentation of the, shall we say, arrest” (Rosenberg 1963, Supreme Court Records, 63). When pressed further, Dr. Dalhgren conceded that he had “‘no strong feeling’ as to whether, ‘according to traditional medical terms’ respondent would be considered a psychopathic personality” (Rosenberg 1963, Supreme Court Records, 7). Fleuti also presented a letter from his psychiatrist, a Dr. Harvey, which stated that Fleuti’s sexual deviation was under control and that Fleuti “seems to have traits of a better than average citizen, in the sense of hard work, general morality, and honesty” (Rosenberg 1963, Supreme Court Records, 4). Dr. Harvey stated that Mr. Fleuti had long recognized his homosexual interests and had his first homosexual experience at age 26. “However,” Harvey wrote, “his socio-economic relationships have been consistently good according to my history.” The psychiatrist observed that Fleuti “did not frequent homosexual hangouts, had no evident interest in youths, manifested no irresponsible trends, and had his main social contacts with respected members of the community.” Fleuti had a greater interest in homosexual relations than was typical, but his overall sex drive was not strong, he had engaged in heterosexual relations up to 1959, and he was not, according to Fleuti’s doctor, “a sociopath, a psychopath, or a person of constitutional psychopathic inferiority.” In a remark clearly intended to highlight Dahlgren’s lack of psychiatric expertise, Dr. Harvey concluded, “I do not think that another psychiatrist with adequate training and experience will be likely to disagree with my findings” (Fleuti v. Rosenberg 1962, 652, 657).
In ordering Fleuti’s deportation, the special inquiry officer noted that Fleuti’s deportation as a psychopathic personality was supported by Fleuti’s own admissions as well as the certification of the Public Health Service (Rosenberg 1963, Supreme Court Records, 45). The logic that made Fleuti a psychopathic personality was incredibly circular: The INS cited the PHS certification, and the PHS doctor who made the certification had, when question by Fleuti’s lawyer about medical disagreements about the term, cited the authority of the PHS manual. “We have to use certain terminology—and the rest of the world may not agree,” the doctor explained, “we are so ordered; therefore we do” (Fleuti v. Rosenberg 1962, 652). The Board of Immigration Appeals upheld the order, and Fleuti appealed his case to the federal courts.
In his appeal to the Ninth Circuit, Fleuti’s attorney argued that the deportation order was a violation of his due process because the term psychopathic personality was “void for vagueness.” That legal concept prohibited punishment for any conduct that could not reasonably be understood to be proscribed. The court observed that Fleuti’s deportation had relied on conduct both before and after his entry to the country to determine that he was a psychopathic personality. Because Fleuti seemed to exercise choice in postentry homosexual behavior (based on the fact that his psychiatrist testified that he could control his homosexual urges) “it follows that if, by reason of vagueness, the statute failed to advise him that homosexual practices conclusively evidence a ‘psychopathic personality,’ Fleuti was substantially prejudiced.” The Ninth Circuit observed that the PHS surgeon and Fleuti’s own doctor disagreed as to the meaning of the term psychopathic personality, the PHS (in its report to Congress) conceded that the term was “vague and indefinite,” and experts in general disagreed about its meaning. Based on this confusion, the Ninth Circuit concluded that the psychopathic personality provision, “when measured by common understanding and practices, does not convey sufficiently definite warning that homosexuality and sex perversion are embraced therein.” The court ordered Fleuti’s deportation canceled on the grounds that the statute was void for vagueness (Fleuti v. Rosenberg 1962, 652). In doing so, it implicitly affirmed the underlying premise of Fleuti’s brief that homosexuality was a form of conduct—hence the notion that if properly warned, Fleuti would not have engaged in such behavior.
Fleuti’s court battle was far from over. The government appealed the case to the Supreme Court, where its strategy was to reassert the idea that homosexuality was a condition or status rather than a behavior. The government argued that the statute was not void for vagueness because Congress was “not seeking to regulate conduct but to prescribe standards for admission to the United States.” Fleuti was being deported, the government argued, not for post-entry conduct but forcondition at entry. The void-for-vagueness doctrine, intended in the immigration context to ensure that aliens had adequate warning about conduct for which they could be deported, was inapplicable to Fleuti. The doctrine, government counsel argued, “was not a device to enable persons having defined characteristics … or suffering from specified physical or mental diseases or defects, to conduct themselves so as to avoid making these conditions manifest” (Rosenberg 1963, Supreme Court Records, 10, 32).
The Supreme Court declined to address the void-for-vagueness issue and instead vacated the lower court’s ruling on other grounds. But in letting the Ninth Circuit’s ruling stand, at least Chief Justice Earl Warren had been influenced by the ambiguity of the medical testimony in the case. “It was conceded by the government doctors,” Warren wrote in a note to himself, “that all homosexuals are not medically psychopaths” (Murdoch and Price 2001, 93). After the Fleuti decision was remanded, the INS ordered Fleuti’s deportation, asserting that he had been a constitutional psychopathic inferior at the time of his entry in 1952. (Like Flores-Rodriguez, Fleuti’s original entry occurred before the passage of the 1952 McCarran Walter Act). The order for deportation was finally canceled in 1965 when the Board of Immigration Appeals ruled, in a fascinating opinion, that it did not find compelling evidence that Fleuti was a homosexual:
Respondent has been employed in a responsible position for the past 11 years by one employer who thinks very highly of him, that he has a history of devotion to family and interest in others, that he has sought psychiatric help and has his problem under control, that apart from these arrests resulting in convictions on two occasions, he has not been in trouble with the authorities, that he is well regarded by people who have known him over an extended period of time … While the records reveals that respondent has an inclination toward homosexuality, it appears to be one respondent can control and that he had it under control before he entered. Therefore, we cannot find that the record establishes that he was a homosexual at the time of that entry. (Rosenberg v. Fleuti 1963, 449, 452, emphasis mine)
What, then, according to the court, made one a homosexual? Fleuti’s sexual acts—unlike Ganduxe’s or Quiroz’s—were mitigated by other facts that seemed to suggest to the Board that Fleuti led an upstanding and moral life. In contrast to the image of the out-of-control psychopath, Fleuti’s homosexual urges were well under control. Moreover, he had severed not only sexual but social contacts with other homosexuals. Fleuti exhibited many of the traits of a good citizen: He was productively employed, a responsible family member who cared for his dependents, well thought of by his associates, and not least, both Northern European and male. Interestingly, such traits did not suggest to the BIA that Fleuti was a good homosexual. They suggested instead that he was not a homosexual (Matter of Fleuti 1965). The BIA’s ruling destabilized homosexuality as identity by challenging the idea that such identity bore any necessary relationship to homosexual acts.
Following Fleuti, Lavoie v. Immigration and Naturalization Service further jeopardized government efforts to regulate homosexuality among immigrants. Lavoie, a Canadian alien, entered the United States in 1960. After Lavoie pled guilty to an arrest for a homosexual act in a Woolworth’s store in 1961, the INS began an investigation. Lavoie told an INS investigator that he had first become aware of homosexual feelings when he was in the Royal Canadian Navy, and he admitted to frequent homosexual encounters but more than 30 heterosexual acts as well. During hearings before a special inquiry officer, the government’s own psychiatrist, Public Health Service surgeon Beittel, testified that from a psychiatric point of view, Lavoie was not a homosexual but a “sexual deviate manifested by auto-eroticism and homo-eroticism.” The testimony of Lavoie’s own psychiatrist, a Dr. Diamond, was vexing for the INS. He stated that respondent was not a psychopathic personality, but suffered from a neurotic conflict over sex. Diamond initially refused to fix homosexuality as identity, testifying that “homosexuality is not an appropriate medical term … [and] there is no such diagnosis as homosexuality.” But he then reversed himself, arguing that while Lavoie clearly manifested sexual confusion, he bore none of the traits of a “true” homosexual:
No molesting of children, no interest in adolescents, no sustained relationships “with some abnormal individual in any perverted way,” no eminine characteristics, no love affairs with men. The homosexual “experience[s]” were “extremely superficial, extremely casual” and “in between the scattered homosexual contacts he has had perfectly normal relationships with women.” (Lavoie 1966, Trial Records, 13).
Thus, ultimately, Diamond did fix homosexuality as identity, but he defined it not in terms of sex acts but, rather, in terms of emotional attachments. Consequently, he might have considered Lavoie a “true” homosexual—and hence problematic for the INS—if Lavoie had developed emotional bonds with his sexual partners. Homosexuals, in Diamond’s framework, were men who loved other men, but not necessarily men who sought out other males for casual sex. The special inquiry officer rejected this notion, returning instead to the familiar argument that homosexual acts confirmed homosexual status. “A person who [has] engaged in homosexual acts twelve to twenty-four times a year for a period of at least eleven years,” the special inquiry officer wrote, is “a sexual deviate irrespective of the mental condition which [causes this]” (Trial Records Lavoie 1966, 13).
Lavoie then appealed to the BIA, which remanded the case so that the psychiatric issues could be reconsidered in light of the Public Health Service’s Manual for the Medical Examination of Aliens and further testimony could be taken as to “what pattern determines a … homosexual.” But, at the reopened hearing, psychiatric testimony remained unchanged. “A good deal of their testimony only served to confuse me,” the special inquiry officer wrote, “[but] I did get out of it that they agreed that the phrase ‘psychopathic personality’ has no precise medical meaning and that ‘homosexual’ is not a medical term.” Having found in the PHS manual a reference to psychopathic personality as a “legal term,” the officer firmly rejected the relevance of psychiatric testimony. “If, as testified to by the medical experts, ‘psychopathic personality’ and ‘homosexual’ are not medical terms,” he reasoned, “any testimony concerning such conditions is without the scope of their special competence and is of little value in resolving the issue” (Lavoie 1966, Trial Records).
While the INS may have felt that it had effectively dismissed the psychiatric testimony, Lavoie’s lawyers resurrected it again when his case reached the Ninth Circuit.40 Lavoie’s opening brief established that the government psychiatrist had stated that Lavoie might be neurotic and not homosexual and that this doctor finally reached his “diagnosis” of psychopathic personality with “grave doubts” and “under [the] compulsion of a government manual” that he believed needed revision. “Like the government doctor in Fleuti,” the brief argued, Dr. Beittel was “required to so certify anyone who is a sex deviate.” The government’s case was clearly weakened by such testimony from within its own ranks, and the Ninth Circuit followed Fleuti in holding that psychopathic personality was void for vagueness in its application to homosexuals (Lavoie v. INS 1966, 27, 28; and Lavoie 1966, Trial Records, 5, 11).
Fleuti and Lavoie unsettled many of the “givens” on which federal regulation of homosexuality among immigrants rested. In the 1967 Boutilier decision, immigration officials and the courts made a determined attempt to reassert those givens: first, the notion that homosexuality designated a kind of person, and second, that homosexual persons were psychopaths and hence covered by the immigration law. In the face of psychiatric disagreement about the nature of homosexuality, the latter effort would require the court to find another foundation on which to establish homosexual identity. That foundation would be the law itself.
Canadian national Clive Michael Boutilier had been living in the United States for eight years when he applied for naturalization in 1963. During that process, Boutilier completed an affidavit which disclosed a 1959 sodomy charge that had been changed to simple assault and then dismissed. As a result of this admission, Boutilier was questioned by the INS in great detail about his entire sexual history, including the 1959 charge (Boutilier 1967, Supreme Court Records, 4). Boutilier told the investigator that he had engaged in homosexual acts approximately four times a year both before and after his entry to the United States, and that he had also engaged in occasional heterosexual acts. Immigration officials also obtained information from Boutilier that he had lived for some time with a man with whom he had occasional sexual relations and that, after a psychiatric examination, he was classified as 4F by the Selective Service System. Information from the investigation was submitted to the Public Health Service, which reviewed the materials and certified that Boutilier was a psychopathic personality at the time of his entry. At his hearing, Boutilier declined to be examined by PHS doctors but submitted evidence from two psychiatrists who declared that Boutilier was not a psychopathic personality. The special inquiry officer ruled Boutilier deportable as a person afflicted with psychopathic personality at the time of his entry, revealing the conflict between INS and psychiatric definitions that would recirculate in various courtrooms and legal briefs (Boutilier 1967, Supreme Court Records; and Boutilier v. INS 1966, 488, 491).
When Boutilier’s case made its way to the Second Circuit in 1966, the majority opinion supported the INS’s attempt to label Boutilier (and all homosexuals) as psychopathic, regardless of medical opinion. The court asserted that homosexuals were defined by the legislative history of the McCarran-Walter Act as psychopathic personalities. “Congress utilized the phrase ‘psychopathic personality’ not as a medical or psychiatric formulation,” the majority wrote, in a by-then familiar argument, “but as a legal term of art designed to preclude the admission of homosexual aliens into the United States” (Boutilier 1967, Supreme Court Records; Boutilier v. INS 1966, 488, 491).
In his dissent, Judge Moore argued that Congress could not have intended the psychopathic personality language to exclude all homosexuals. He pointed to Kinsey’s finding that 37% of American men had at least one homosexual experience. “To label a group so large ‘excludable aliens’ would be tantamount to saying,” Judge Moore reasoned, “that Sappho, Leonardo da Vinci, Michelangelo, Andre Gide, and perhaps even Shakespeare were they to come to life again would be deemed unfit to visit our shores.” Moreover, he continued, “so broad a definition might well comprise more than a few members of legislative bodies.” Moore raised the possibility that homosexuals were not necessarily, like psychopathic personalities, persons whose “sexual deviation put [them] into repeated conflict with the authorities.” Rather, some homosexuals—not least legislators and famous writers and artists—might be contributing members of society. The assertion certainly seemed true of Boutilier who was, Moore observed, “young, intelligent, responsible,” and “who has worked hard … and is respected in his work” (Boutilier v. INS 1966, 488, 491).
The argument in the Supreme Court followed similar contours. Boutilier’s legal team employed a variety of legal strategies to make the case that the psychopathic personality provision did not apply to him. An amicus brief filed by the Homosexual Law Reform Society of America included dozens of letters from prominent medical and scientific experts—Margaret Mead, Ruth Benedict, Harry Benjamin, and John Money among them— which asserted that homosexuals were not by definition psychopathic. The brief charged the government not with ignoring science but rather with manipulating it. “In labeling the homosexual as … a psychopathic personality, we have not discovered a classification of disturbed persons,” the amicus brief explained. “Rather, we have created such a classification in the purposeful but unscientific pursuit of certain non-medical ends.” Boutilier’s lawyer strongly rejected the lower court’s dismissal of scientific opinion, asserting that psychopathic personality was a medical term whose definition should be left to psychiatrists rather than administrators. As evidence, Boutilier’s counsel observed that the clause was included in the statute in a section with other medical exclusions, such as epilepsy. And, as Boutilier’s brief explained, “respondent and the court are … in the ambivalent position of denying that a medical opinion is required to find that petitioner was a psychopathic personality at the time of entry” and simultaneously basing his deportation on the “the pro forma certification of the U.S. Health Service.” It was contradictory, in other words, to turn to the doctors of the PHS to legitimize the deportation of aliens for homosexuality, while ignoring the opinion of broader medical experts (Boutilier 1967, Supreme Court Records, 14, 9).
In addition to the argument that Boutilier was a homosexual but homosexuals were not psychopathic personalities, Boutilier’s legal team mounted the contradictory but subversive argument that Boutilier might not have been a homosexual at all. As evidence of this, Boutilier’s heterosexual experiences were cited, as was the frequency of occasional homosexual contact among American men in general. “In no event can Boutilier be classed as homosexual without violating part of his history,” concluded psychiatrist Clarence A. Tripp, “and/or forcing him into a category that would include a sizable population of the whole white American population.” General lifestyle issues as well seemed to disrupt the construction of Boutilier as a homosexual. Psychiatrist Montague Ullman noted that in addition to the petitioner’s strong work record, he had moved back home with his mother. Boutilier went to Mass and spent most nights at home. “He occasionally goes bowling,” Ullman concluded (Boutilier v. INS 1967, Supreme Court Records, 15).
This attempt to problematize Boutilier’s homosexuality was part of a larger strategy to disrupt the notion that homosexuality was a category of identity that could be deduced from homosexual behavior. Boutilier’s brief addressed the issue:
The source of the evil lies in an apparent belief that there is some kind of recognizable human being that is a homosexual, like one might recognize a red-head … By and large homosexuality is a kind of behavior, evidently very wide spread, and not the manifestation of a particular kind of person. (Boutilier v. INS 1967, Supreme Court Records, 10)
Boutilier’s writ to the Supreme Court adopted a similar tone. “Who is a homosexual?” the brief asked. One who engaged in both homosexual and heterosexual acts? One time? Or many times? One who was drawn to such practices as experimentation? One who was drawn to such behavior compulsively? (1967, 6).
The facts in Boutilier resisted the fixing of homosexuality as identity because while the petitioner had admittedly engaged in homosexual behavior, he did not seem like a homosexual. Boutilier engaged in homosexual acts, but he also had occasional heterosexual sex. Only very rarely did Boutilier have sex in public places. He had no criminal record and had only come to the attention of the government by his own admissions when he attempted to naturalize. And, indeed, he bore many of the markers of a good citizen—he was a hard worker who lived with his mother, attended Mass, and even went bowling—a hobby so quintessentially American that political scientist Robert Putnam has used it as a metaphor for engaged civic community (Putnam 2000). Indeed, no other immigrant besides George Fleuti so fully claimed the mantle of good citizenship. Fleuti did this so successfully that it entirely displaced his homosexuality. But that Boutilier’s counsel could make similar arguments was not incidental to his whiteness and his maleness—traits which, of course, he shared with Fleuti.
If the contradictions that Boutilier posed as a homosexual man were engaged, they were truly threatening. They challenged the notion that homosexual aliens were an identifiable group who must be refused entry because they did not belong in the American body politic, and instead raised the possibility that homosexuality might be an occasional act among aliens who otherwise had the potential to become good citizens. Boutilier’s legal team had opened a dangerous space between homosexual acts and homosexual identity, between conduct and status. In the face of this threat, it is hardly surprising that the Supreme Court would move to close that gap, restabilizing homosexuality by fixing it as an identity that could be deduced from sexual acts. In the final view of the Court, homosexuals were a type of people, not a set of free-floating practices from which no conclusions about identity could be drawn. “Congress commanded that homosexuals not be allowed to enter,” the Supreme Court asserted, collapsing all distinctions between psychopathic personality and homosexuality. “The petitioner was found to have that characteristic and was ordered deported.” In further rejecting the void-for-vagueness argument, the Supreme Court asserted that Boutilier was deported not based on conduct but on his status at time of entry. But if the Court clearly made the argument that the homosexual was a kind of person, it also importantly rejected the medical terms on which homosexual identity had historically been based. The Court described homosexuality as a legal-political identity category and noted that the question of Boutilier’s deportation was a “purely legal” rather than a medical decision (Boutilier v. INS 1967, 118, 122–24). By its assignment of a legal rather than a medical valence to psychopathic personality cases, the Supreme Court authorized Congress and federal bureaucrats to decide who was a homosexual and how that category would be regulated. In his dissenting opinion, Justice Douglas protested the Court’s move, asserting that Congress wanted psychiatric expertise to guide these immigration decisions. “We cruelly mutilate the [McCarran-Walter] Act,” he wrote, when instead “we make the word of the bureaucrat supreme” (Boutilier v. INS 1967, 118, 135 [Douglas, J., dissenting]).
Toward a Homosexual Citizenry
As the example of the don’t-ask/don’t-tell policy with which I began this essay demonstrates, it is now taken for granted that homosexuality is an identity that is betrayed by homosexual acts. This paper has examined midcentury immigration law in order to trace the process by which this assumption was first operationalized in state policymaking. Federal immigration cases from the 1950s and 1960s reveal that the interdependence of conduct and status is not unique to the don’t-ask/don’t-tell policy, but rather emerged with the federal government’s earliest attempts to manage homosexuality. As is now true with soldiers who serve under don’t-ask/don’t-tell, the chimera of a conduct/status distinction heightened the vulnerability of immigrants to federal policing in the 1950s and 1960s. When the state did not have enough evidence to deport an alien on moral turpitude charges— charges that required that one be convicted of an actual crime, in some circumstances, twice—the state could use such conduct as evidence of status. Tightening the causal link between conduct and status—asserting in other words that one who had homosexual sex was a homosexual—foreclosed the introduction of other kinds of evidence into the evaluation of one’s status, of the kind of person one was, and of the kind of citizen one would make. It was irrelevant if an alien also engaged in heterosexual sex, took care of elderly parents, was a reliable employee, or went bowling.
This made the psychopathic personality provision very powerful, and partially explains why the INS seemed to rely more heavily on the charge as time went on. But the emphasis on the psychopathic personality clause was strategic for other reasons as well. Unlike the moral turpitude provision, the psychopathic personality clause made homosexuality refer to a kind of person rather than a form of behavior. Not only was it easier to regulate a person than a random act, but cold war political culture seemed to require an outsider figure that could be used to banish dissenters and to unite a diverse citizenry around the mythology of consensus. “The ties among the non-deviant citizens,” observed attorney Gilbert Cantor in the amicus brief he wrote in Boutilier on behalf of the Homosexual Law Reform Society of America, “are strengthened by their common opposition to the rejected and excluded” (Boutilier 1967, Supreme Court Records, 16).
Yet Judge Frank had warned as early as 1956 that it was “unwise” for the courts in deciding immigration matters to “venture into the sea of psychiatry.” Frank was perceptive. Relying on the psychopathic personality clause meant vesting the authority of the national state in medical experts, who would change their minds as science developed. “The meaning and precise content [of the psychopathic personality terminology],” legal scholar Marc Bogatin has written, “was susceptible to a certain amount of modification as the state of medical knowledge evolved” (Bogatin 1981, 373). And certainly, the inclusion of dozens of statements by psychiatrists in the amicus brief to the Supreme Court in Boutilier demonstrated that medical professionals were not reliable partners in the state’s enforcement of normative heterosexuality.
When it asserted that psychopathic personality was a legal and not a medical term, the Court both reasserted the control of administrators over that of psychiatrists and froze homosexuality as identity by fixing it “with a single, unchanging meaning” (Bogatin 1981, 373). The Court also mandated that status would be, as Janet Halley has written of the military, determined in the public sphere by law; and that legal words would designate, according to Rogers Smith, “the existence of a political ‘people’ … in ways integral to individuals’ sense of personal identity as well” (Halley 1999, 33; Smith 1997, 31). The Court’s move was fundamentally conservative—designed to both police nonconformist sexual behaviors and make them decisive indicators of identity. Boutilier’s legal team resisted the Court’s attempt to consolidate homosexuality as a kind of person: “The world is not divided into sheep and goats,” the alien’s brief to the Supreme Court stated, quoting Kinsey. The “living world is a continuum in each and every one of its aspects,” including sexuality (Boutilier 1967, Supreme Court Records, 50). But even though Boutilier’s counsel had tried to draw on that fluidity to suggest that Boutilier did not fit within the given legal categories, harnessing a stable identity would have some empowering effects for sex/gender nonconformists like Boutilier.
In the years between Flores-Rodriguez and Boutilier, the courts and the INS had won the battle to define homosexuality as an identity rather than a behavior. But the victory was partial at best, because in failing to maintain the support of psychiatrists, the INS and the courts failed to establish the homosexual individual as diseased. Asserting that homosexuals were defined by legal-political rather than medical categories would have ambivalent effects: It gave the state a way to win these cases, but in shifting the terrain from medical to political-legal identity categories, it simultaneously licensed a concept of the homosexual individual as potential citizen. And as much as the courts’ rulings during these years envisaged the homosexual as a kind of anti-citizen, some who found themselves defined by the law as homosexual (as well as the lawyers and jurists who supported them) would redeploy these concepts in strategic ways.
Indeed, the notion that homosexuals could be good citizens circulated throughout many of the cases dealing with homosexuality among immigrants during these years. Justice Douglas, dissenting in Boutilier, wrote that “it is common knowledge that in this century homosexuals have risen high in our own public service—both in the Congress and in the Executive Branch—and have served with distinction” (Boutilier v. INS 1967, 118, 129). Dr. Norman Reider sent a letter in support of Boutilier’s brief, which stated that “homosexuals can be as honest, courageous, contributory to society, and trustworthy as heterosexuals” (Boutilier 1967, Supreme Court Records, 73). Dr. Isadore Rubin, editor of Sexology Magazine, similarly observed in support of Boutilier’s case that homosexuals were found in all professions and walks of life and were making great social contributions. “To deny persons otherwise qualified as citizens the privilege of citizenship on the basis of homosexual behavior per se,” Rubin wrote, “is to deprive our nation of important human resources as well as to commit an injustice against them.” And then Rubin concluded, “Unless there is a place for [homosexuals] in the Great Society, there will never be a great society in any sense” (Boutilier 1967, Supreme Court Records, 74, 85). Quiroz’s record of responsible employment, Fleuti’s association with reputable members of the community and his closeness to his family, Boutilier’s attendance at church and his participation in community rituals like bowling all suggest the centrality of rhetorical strategies that pictured these aliens as capable of assimilation as good American citizens.
The conception of homosexuals as potentially good citizens that circulated in immigration cases only rarely produced positive outcomes for aliens facing deportation during these years, but the shift in the discursive terrain had an impact outside the arena of the courtroom. To take just a couple of examples: Psychiatrist R. Masters’s self-declared “evenhanded” account of homosexual life in America reported that homosexuals wanted to be regarded as “ordinary citizens” with a homosexual “bill of rights” that included the freedom to serve in the armed forces; the freedom to secure government employment; the freedom to marry, own property jointly, and take advantage of tax breaks; and the freedom of the press, among others. Masters’s list alluded to one of the foundational documents of the American republic and touched on some of the major components of American citizenship: military service, employment, marriage, property ownership, and tax paying (Masters 1962, 115–46).
Donald Webster Cory, a homosexual man writing under a pseudonym, also employed citizen motifs in his midcentury account of homosexual life. Homosexuals were a minority group that was not based on inborn characteristics, Cory wrote, but on a number of social-legal factors: “In the denial of civil liberties; in legal, extra-legal, and quasi-legal discrimination; in the assignment of an inferior social position; in the exclusion from the mainstreams of life and culture” (Cory 1951, 4–5, 14). Cory repeatedly identified homosexuality with democracy and noted that totalitarian societies had been the most repressive of homosexuals. In fact, Cory wrote, homosexuals were a “pillar of democratic strength” and “no force will be able to weave these groups into a single totalitarian unity which is the unanimity of the graveyard.” Moreover, having been denied basic freedoms, Cory argued, homosexuals would be champions of freedom (Cory 1951, 69, 233–35, 240–43).
The Mattachine Society and other homophile groups also claimed the mantle of good citizenship during these years. This was a point of contention in their collaborative relationship with Alfred Kinsey, who steadfast in his belief that homosexuality was a behavior, urged Mattachine leaders to “avoid ‘the special pleas of a minority group’” (Minton 2002, 174). The Mattachine Society of Washington claimed as its purpose “to act by any lawful means … to secure for homosexuals the right to life, liberty, and the pursuit of happiness, as proclaimed for all men by the Declaration of Independence and … the basic rights and liberties established by the word and spirit of the Constitution of the United States” (Johnson 2000, 320). 56 In accordance with this aim, the Mattachine Society of Washington called its main publication The Homosexual Citizen. Both Mattachine insiders and those who feared the organization wondered about the possibility of a homosexual voting bloc that might carry “tremendous political power” (Masters 1962; Cuordileone 2000, 536).
All of this is not to say that the courts discovered or created the notion of homosexuality as a fixed, legal-political identity that lent itself so ably to this rhetoric of homosexual citizenship. That construct was partly a response to the public displays of military and civil service purges during the early 1950s, which pictured homosexuals as soldiers and civil servants and ensured that debates about homosexuality would be debates about citizenship as much as disease or crime. In attempting to regulate homosexuality among immigrants, the Congress, administrative agencies, and especially the courts both reflected larger cultural currents and helped to consolidate this notion of homosexuals as potential citizens. But the notion that homosexuals were a type of people with a legal-political identity had unintended consequences. In using law to constitute status in the way they did, in using legal words to designate the people, the courts, the Congress, and the INS probably had little idea that they were lending authority to a burgeoning gay rights movement that continues to this day to base its claims on a legalpolitical conception of homosexuals as potentially good citizens. But at the same time, gay rights movements cannot themselves escape the ambivalent legacy of fixing homosexuality as identity and thereby surrendering themselves to regulation by state authority.