Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946

Wililiam N. Eskridge, Jr.*

TABLE OF CONTENTS Introduction ...... 1009

I. The Invert Joins the Sodomite as a Regulatory Object, 1880 to 1921 ...... 1011 A. The Old Regulatory Regime: Buggery, Lying with Men, Carnal Knowledge, Crime Against Nature, and Sodomy Laws ...... 1012 B. The Discourse of Degeneracy in Urbanized America and New Specifications of the Crime Against Nature ...... 1016 1. Urban Perversions: Prostitutes, "Passing Women," and "Fairies"...... 1017 2. The New Discourse of Inversion and Degeneracy .... 1022 3. New Specifications of the Crime Against Nature .... 1025 C. New Mechanisms for Regulating Same-Sex Intimacy ..... 1032 1. State Regulation ...... 1033 2. Municipal Regulation ...... 1038 (a) Multiplicity of Illegal Indecencies ...... 1038 (b) Cross-Dressing Prohibitions ...... 1040 (c) Degeneracy Prohibitions () ...... 1043 3. Federal Regulation ...... 1045 (a) Immigration Exclusion of Public Charges, Criminals, and Psychopaths ...... 1045 (b) Regulation of Civilian Contact with Soldiers .... 1048 (c) Exclusion of "Degenerates" from Military Service ...... 1050

• Professor of Law, Georgetown University Law Center. An earlier (and much shorter) version of this Article was delivered as the Murray Lecture at the University of Iowa School of Law in March 1996. 1 appreciate comments from students and faculty, especially from Patricia Cain and Mary Dudziak, two legal historians whose work on law and sexuality and law and race, respectively, inspired the current project. The Article has also been presented to workshops at the Georgetown University Law Center and the Reading Group of the Gay and Lesbian Lawyers of Washington (GAYLAW), where I received many helpful comments, especially from Jeanne Goldberg, Robert Raben, Mike Seidman, and Mark Tushnet. The author alone is repsonsible for the contents of this Article.

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II. The Homosexual Joins the Sodomist and the Invert as a Regulatory Object, 1921 to 1946 ...... 1053 A. The Newport Scandals and the Emergence of the Homosexual as a Regulatory Category ...... 1055 B. The Homosexual as a Perverted Child Molester and Sexual Psychopath ...... 1059 1. Increasing Concern About the Sexually Aggressive Male ...... 1059 2. The Homosexual as Sexual Psychopath ...... 1062 3. New Medicalized Approaches to Discipline the Sexual Psychopath ...... 1065 C. Suppression of in the Psychiatric State .... 1069 1. Censorship of Homophile Literature ...... 1069 2. Suppression of "Degeneracy" and "Sex Perversion" in Theatrical Productions ...... 1075 3. Suppression of "Sex Perversion" in the Movies ...... 1078 4. Suppression of Homosexual Socialization Through Police Raids ...... 1080 5. Suppression of Homosexual Socialization Through State Liquor Licensing ...... 1083 6. The Military Exclusion of Homosexuals ...... 1086

III. The Role of Law in the Construction of Deviant Sexuality .... 1093 A. Normalization ...... 1095 B. Outlaw Sexuality ...... 1098 C. The Closet ...... 1102

Conclusion ...... 1106

Appendix 1. Sodomy Arrests, Various Cities, 1875-1941 ...... 1110 Appendix 2. Sex Offense Statistics in Various American Jurisdictions A. Sex Offense Arrests in San Francisco, 1860-1912 .... 1112 B. Sex Offense Arrests in Nashville, 1880-1910 ...... 1114 C. Sex Offense Arrests in Richmond, 1875-1940 ...... 1116 D. Sex Offense Arrests in Saint Louis, 1874-1946 ...... 1118 E. Sex Offenders Committed to Michigan Prisons, 1875-1946 ...... 1121 F. Sex Crimes Prosecuted by Dade County (Florida) Solicitors, 1929-1946 ...... 1122 Appendix 3. "Degenerates" Arraigned in 's Magistrates' Courts, 1915-1948 ...... 1123 Appendix 4. Sexual Outlaws Debarred from Entering the U.S. by Immigration Authorities, 1892-1956 ...... 1125 Appendix 5. Early Sex Offense Regulations in San Francisco, 1866-1915 ...... 1127 Appendix 6. Municipal Sex Offenses ...... 1134

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INTRODUCTION Among the denizens of the "Gay Nineties" were Elvira Virginia Mugarietta, a Californian adventurer and humanitarian; Ralph Werther, a college student in New York City; and Alice Mitchell, the scion of a prominent Memphis family. All were gender-benders who ran afoul the law. Mugarietta was a biological female who passed as a man from 1892 to 1936. Living as a man, she was able to enjoy experiences as a soldier, journalist, and philanthropist that were typically closed to women, although her enjoyment was occasionally punctuated by official detention and incarceration. Werther's autobiography describes himself as a "fairie" or "androgyne," namely "an individual with male genitals, but whose physical structure otherwise, whose psychical constitution, and vita sexualis approach the female type."2 Attracted only to virile men, Werther suffered from repeated run-ins with law enforcement officers and soldiers. Mitchell's single encounter with the law was the most tragic, however. Her passion was for Freda Ward. Mitchell proposed to marry Ward by passing as a man; after Ward demurred, the nineteen-year-old Mitchell stabbed her to death on the streets of Memphis. The Shelby County Criminal Court adjudged Mitchell insane in 1892; she died six years later in an asylum.3 There was nothing new about Elvira Mugarietta, Ralph Werther, and Alice Mitchell. Fairies had cavorted in New York City long before 1890, and women passed as men throughout the modern era. What was new was the publicness of their self-conscious deviation from traditional male and female roles, and society's anxious perception that a good many people shared their inclinations. That perception propelled a social discourse about same-sex intimacy that evolved from a focus on theology-based unnatural acts to medically-based gender inversion and, ultimately, deviant . The discourse created specific categories of disapproved people-the sodomite, the sexual invert, and the homosexual-who fit into yet broader stigmatized groups-the heretic, the degenerate, and the psychopath. Historians and philosophers have developed a rich account of the turn-of-the-century social process by which the "sexual invert" and the "homosexual" were created.4 This Article draws from their work to

1. See Louis G. Sullivan, From Female to Male: The Life ofJack B. Garland (1990). 2. Earl Lind (Ralph Werther - Jennie June), Autobiography of an Androgyne 6 (Arno Press 1975) (1918) [hereinafter Lind (Ralph Werther -Jennie June), Autobiography]; see also Earl Lind (Ralph Werther - Jennie June), The Female Impersonators (Arno Press 1975) (1922) [hereinafter Lind (Ralph Werther -Jennie June), Female Impersonators]. 3. Recent sources drawing from contemporary accounts of Mitchell's life include Jonathan Ned Katz, Gay American History: Lesbians and in the U.SA 82-90 (1976) [hereinafter Katz, Gay American History] and Lisa Duggan, The Tials of Alice Mitchel Sensationalism, , and the Lesbian Subject in Turn-of-the-Century America, 18 Signs 791 (1993). Mitchell's story was a key case study in Richard von Krafft-Ebing, Psychopathia Sexualis, with Special Reference to Antipathic Sexual Instinct: A Medico-Forensic Study 581-85 (F.J. Rebman ed., Physicians & Surgeons Book Co. 1931) (1899). See also Havelock Ellis, The Study of Sexual Inversion, 12 Med.-Legal J. 148 (1894-1895). 4. Germinal works are 1 Michel Foucault, The History of Sexuality (Robert Hurley

HeinOnline -- 82 Iowa L. Rev. 1009 1996-1997 1010 82 IOWA LAW REVIEW [1997] demonstrate how the new regulatory categories affected the evolution of law between 1880 and 1946. Part I of the Article traces the law's regulation of the degenerate and the sexual invert in urbanized jurisdictions from the end of Reconstruction through World War I Part II traces the law's regulation of psychopaths and homosexuals from the end of World War I through the end of World War II. This account will suggest interesting and occasionally surprising historiographical conclusions. Many involve the complex role of sodomy prohibitions, which are both less and more important than conventional wisdom treats them. Sodomy laws were of marginal significance in terms of their actual application. For example, neither Elvira Mugarietta nor Ralph Werther nor Alice Mitchell was ever arrested or harassed for violating their state's sodomy laws. State and municipal laws regulating cross-dressing, vagrancy, disorderly conduct, indecency, lewdness, and were more important enforcement tools against same-sex intimacy; and it is these (state) misdmeanors and (municipal) offenses that snared Werther and Mugarietta. Most of these local regulations were aimed at , which was the biggest regulatory concern for most of the period under discussion. Like the invert and then the homosexual, the prostitute was considered degenerate and then mentally ill by a sex-negative society, and regulations aimed at prostitution were readily applied or adapted to target same-sex intimacy. Both were forms of outlaw love. On the other hand, sodomy prohibitions came to be metonymic with sexualized outlaws such as Werther and Mitchell. Before 1880, crime- against-nature laws were typically enforced against men assaulting women or minors in coercive encounters. After 1880, in urbanized jurisdictions, of the East and (later) the West Coast and Midwest, enforcement of such laws increasingly focused on men committing consensual acts (, increasingly) with one another. Although antiprostitution and cross- dressing laws generated more arrests, crime-against-nature laws generated more particularized association. Inverts and homosexuals came to be defined by the prohibited conduct they presumptively engaged in, and excluded from the republican vision of America. This vision was represented in sodomy laws as those laws were invigorated and reinterpreted. Parts I and II of this Article are a legal realist's account of how new social developments and categories influenced the development of law and legal categories. Part III reverses the inquiry. Rather than asking how

trans., 1978); Mary McIntosh, The Homosexual Role, 16 Soc. Probs. 182-92 (1968). Particularly relevant to my legal account are Allan Bdrubd, Coming Out Under Fire: The History of Gay Men and Women in World War 11 (1991); George Chauncey, Jr., Gay New York: Gender, Urban Culture and the Making of Gay Male World, 1890-1940 (1994) [hereinafter Chauncey, Gay New York); Lillian Faderman, Odd Girls and Twilight Lovers: A History of Lesbian Life in Twentieth Century America (1991); Elizabeth Lapovsky Kennedy & Madeline D. Davis, Boots of Leather, Slippers of Gold: The History of a Lesbian Community (1993); Carroll Smith- Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America (1985).

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larger social changes affect the course of law, the final Part asks how law contributes to larger social changes The law was a significant but not dominant force in the process of normalization, by which certain practices or character traits are established as socially preferred by prohibiting or stigmatizing their competitors. Law more significantly contributed to the demarcation of same-sex intimacy as a form of sexuality-but as an outlaw sexuality, whose practitioners were at the mercy of both state and private predators. Finally, and most important, law contributed to the construction of the sexual closet. The closet signifies a sexuality that is best hidden away, private, and shameful, but that tempts both the insider and outsider to open the door. Law's penalties pressed homosexuality toward private expression, but nosy officers of the law were constantly prying the door open, thereby creating homosexuality as an unstable condition that managed to combine both fear and excitement. The Conclusion of the Article will suggest ways that the foregoing historical analysis ought to be relevant to current constitutional and legal issues. Using the Supreme Court's decision in Bowers v. Hardwick6 as one text, I indicate how the realist account in Parts I and II undermines the Court's argument that "millenia of moral teachings" supported the prosecution of Michael Hardwick for having oral sex with a consenting adult. The analysis also situates the Court's rhetoric in that case but criticizes the Court's willingness to ratify the turn-of-the-century regulatory regime which demonized gender-burdens and sexual minorities. This is objectionable because it normalizes an oppressive regime, empowers prejudice and ignorance, and is a futile effort to reinforce the sexual closet. I apply a similar blend of realist and constructivist history to evaluate current legal bars to same-sex and to military service by lesbians, bisexuals, and gay men (don't ask, don't tell).

I. THE INVERT JOINS THE SODOMrIE AS A REGULATORY OBJEcT, 1880 TO 1921 As of 1881, thirty-six of the thirty-nine states criminalized sodomy or, as most statutes put it, the "infamous [or abominable] crime against nature."7 Although other laws could often be invoked, sodomy statutes

5. This kind of inquiry is inspired by Ellen Ross & Rayna Rapp, Sex and Society: A Research Note from Social History and Anthropology, in Powers of Desire: The Politics of Sexuality 51, 51-73 (Ann Snitow et al. eds., 1983). See also 1 Foucault, supra note 4. 6. 478 U.S. 186 (1986). 7. In 35 states, there were statutes prohibiting sodomy. Vermont had no statute, but its highest court recognized sodomy as a common-law crime. See State v. LaForrest, 45 A. 225 (Vt. 1899). Contrast Iowa, whose highest court refused to recognize sodomy as a common-law crime. See Estes v. Carter, 40 Iowa 100 (1860). Iowa had no until 1902. See Act of Mar. 31, 1902, 1902 Iowa Acts 107. Similarly, Ohio had no sodomy law until 1885, see 1885 Ohio Laws 241; Washington had no sodomy law until 1893, see Act of Mar. 9, 1893, 1893 Wash. Laws 470, 470-71; and the District of Columbia had none until 1948. All eleven states joining the union after 1881 (North and South Dakota, Wyoming, Utah, Idaho, Montana,

HeinOnline -- 82 Iowa L. Rev. 1011 1996-1997 1012 82 IOWA LAWREVIEW [1997] then constituted and had long constituted the only formal regulation of same-sex intimacy in America, albeit only as a legal byproduct of a broader normative agenda: fostering procreative sex within marriage, protecting vulnerable people from predation, and social suppression of undesirable persons. As the first Section reveals, the regulatory philosophy of sodomy or crime-against-nature laws was not focused on consensual same-sex intimacy for the first 350 years of Anglo-American regulation. The remainder of this Part traces and situates the regulatory changes that occurred in the 1880s: sodomy laws came to be more systematically enforced in major American cities, and they came to be enforced increasingly against consensual same-sex intimacy; the regulatory philosophy for such enforcement shifted, from a prohibition of unmentionable acts to a regulation of gender-bending people; and new forms of regulation came to be instituted as a byproduct of municipal campaigns to suppress prostitution.

A. The Old Regulatory Regime: Buggey, Lying with Men, Carnal Knowledge, Crime Against Nature, and Sodomy Laws At the behest of Henry VIII, the Reformation Parliament of 1533 made "the detestable and abominable vice of buggery committed with mankind or beast punishable by death."" Elizabeth I's second Parliament reenacted the Act of 1533, including a mandatory penalty of death.9 These statutes secularized offenses that had traditionally been regulated by the Roman Catholic Church, which Henry and Elizabeth were renouncing. As applied by the English courts, buggery was understood to include anal intercourse between two men' ° or between a man and a woman" (these acts are often referred to as "sodomy") and any between a human male or female and an animal 12 ("bestiality"). As construed by the English judiciary, the law did not include oral intercourse between humans. 3 Sexual intercourse between women was clearly unregulated by

Oklahoma, Arizona, New Mexico, Alaska, and Hawaii) had territorial sodomy laws. 8. Act of 1533, 25 Hen. 8, ch. 6 (Eng.); see Francois Lafitte, Homoseuality and the Law, 9 Brit.J. Delinq. 8, 12 (1958). 9. The Act of 1533 was only temporary, enduring until "the last Day of the next Parliament." It was renewed, again temporarily, in 1536 and 1539 and was made perpetual in 1540, near the end of Henry's reign. The law was modified by Edward VI's Parliament in 1548 but was repealed when in 1553 Queen Mary abolished all created since the reign of her father, Henry VIII. Elizabeth's second Parliament reenacted the original Act of 1533, upon a finding that "divers evil disposed Persons have been the more bold to commit the said most horrible and detestable Vice of Buggery aforesaid." 5 Eliz., ch. 17 (1562) (Eng.); see Lafitte, supra note 8, at 14. 10. See Stafford's Case, 77 Eng. Rep. 1318 (1607). 11. SeeThe King v. Wiseman, 92 Eng. Rep. 774 (1716). 12. See Sir Edward Coke, The Third Part of the Institutes of the Laws of England 58-59 (1677). 13. See Rex v. Jacobs, 168 Eng. Rep. 830 (1817) (finding that forcible by man upon unwilling boy was not within buggery statute).

HeinOnline -- 82 Iowa L. Rev. 1012 1996-1997 REGULATION OF SAME-SEX INTIMA CY, 1880-1946 1013 the Act of 1533. The American colonies followed a variety of approaches. 4 The southern and middle colonies generally assumed or legislated that the Act of 1533 and its death penalty applied within their jurisdictions. Explicitly invoking biblical injunctions against men "lying" with other men, New England colonies adopted statutes or policies covering more activities than the Act of 1533. Although the Massachusetts Bay Colony seriously considered but ultimately rejected the Reverend John Cotton's 1636 proposal that intercourse between women be included as sodomy, the New Haven Colony in 1656 prohibited under pain of death men lying with men, women lying with women, (if aggravating circumstanc- es), and any other "carnall knowledge." ' The crimes of masturbation and women lying with women were dropped as offenses when the Connecticut Colony was formed in 1665, however. On the other hand, the authorities in Connecticut and Massachusetts, like those in Virginia, were willing to prosecute men and on at least one occasion women for same-sex lewdness without a specific statutory basis. Altogether there are records of no fewer than twenty sodomy prosecutions, and four executions, during the colonial 1 6 period. Between Independence and 1820, the original thirteen states adopted laws similar to the Act of 1533 but without the death penalty. Like English law, none of the early statutes defined what precisely was meant by buggery or sodomy, for this remained the "unmentionable" sin against nature. American courts faithfully followed English authorities in the few cases where interpretation was demanded. States joining the union in the first half of the nineteenth century adopted laws criminalizing "sodomy, or the crime against nature, with mankind or beast." 17 Most of the early statutes were revised by the middle of the century to criminalize what the Puritans and other seventeenth century moralists termed "carnal knowledge" or what Blackstone and other eighteenth century lawyers termed "the infamous crime against nature."' 8 This was a significant shift in

14. The discussion of colonial sodomy regulations draws from Louis Crompton, Homosexuals and the Death Penalty in Colonial America, 1 J. Homosexuality 277 (1976); Anne B. Goldstein, History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 Yale LJ. 1073, 1082-84 nn.60-65 (1988); Robert Oaks, Perceptions of Homosexuality by Justices of the Peace in Colonial Virginia, in Homosexuality and the Law 35 (Donald C. Knutson ed., 1980); Robert Oaks, "Things Fearful to Name": Sodomy and Buggery in Seventeenth-Century New England, 12 J. Soc. Hist. 268 (1978). See also Caroline Bingham, Seventeenth Century Attitudes Toward Deviant Sex, 1 J. Interdisc. Hist. 447 (1971). Critical primary documents are reproduced in Katz, Gay American History, supra note 3; Jonathan Ned Katz, Gay/Lesbian Almanac: A New Documentary 66-133 (1993) [hereinafter Katz, Almanac]. 15. J. Hammond Trumbull, The True-Blue Laws of Connecticut and New Haven 201 (1879), reprinted in Katz, Gay American History, supra note 3, at 36-37. Note the different terminology followed in the different colonies: the secular "buggery" in southern and mid- Atlantic colonies, the biblical "lying" or "sodomy" in New England. 16. See Katz, Almanac, supranote 14, at 29, 58, 663. 17. Wis. Rev. Stat. ch. 139, § 15 (1849); see 1827 I11.Laws § 50. 18. 1 William Blackstone, Commentaries on the Laws of England *215. Examples of such

HeinOnline -- 82 Iowa L. Rev. 1013 1996-1997 1014 82 IOWA LAW REVIEW [1997] terminology, explicitly yoking the prohibition to the natural law philosophy and not just to the Bible ("men lying with men" and "sodomy") or early English practice ("buggery"). Consistent with natural law's insistence that sexual activity occur within marriage, states included crime-against-nature prohibitions in the same title or chapter as, and in close proximity with, adultery, fornication, and prohibitions. Collectively, these were categorized as "crimes against public morals and decency." In almost all of the states the crime-against-nature statutes forbade unspecified intercourse between men and women as well as men and men, but not between women and women. '9 Although sodomy laws in the nineteenth century remained formally linked to adultery, fornication, and incest in the state codes, their enforcement was concentrated in situations more akin to and seduction, that is, where a man was allegedly assaulting a less powerful man, child, woman, ward, or animal. Excluding the large minority of decisions that did not reveal the sex or even the species of the parties involved,0 the reported cases from the nineteenth century fell into three roughly equal groups: bestiality with barnyard animals,2' sex between an adult man and a boy or "youth," 22 and man-man and man-woman cases.23 At common law, sodomy and rape were sibling crimes: both were considered violent upon the person of the victim. 24 The law originally required penetration and emission in both crimes but abandoned the emission requirement for both in the nineteenth mid-century revisions can be found in Del. Code Ann. tit. 20, ch. 131, § 7 (1852); Mass. Gen. Laws ch. 165, § 18 (1860); N.C. Rev. Code ch. 34, § 6 (1854). 19. See generally 2 John Chitty, A Practical Treatise on Criminal Law *49; Robert Desty, A Compendium of American Criminal Law § 60a, at 143 (1882);John May, The Law of Crimes § 203, at 189 (Little, Brown and Co. 1893) (1881). 20. See State v. Williams, 34 La. Ann. 87 (1882); Commonwealth v. Dill, 36 N.E. 472 (Mass. 1894); People v. Hodgkin, 53 N.W. 794 (Mich. Ct. App. 1892); Fennell v. State, 32 Tex. 378 (1869); Ex parte Bergen, 14 Tex. Ct. App. 52 (Crim. App. 1883); Williams v. Common- wealth, 22 S.E. 859 (Va. 1895). 21. See Bradford v. State, 16 So. 107 (Ala. 1893) (defendant accused of intercourse with a cow); Collins v. State, 73 Ga. 76 (1884) (bestiality); State v. Frank, 15 S.W. 330 (Mo. 1890) (dog); State v. Campbell, 29 Tex. 44 (1867) (mare); Cross v. State, 17 Tex. Crim. 476 (Crim. App. 1895) (mare); Thomas' Case, 3 Va. (1 Va. Cas.) 80 (1812) (mare). 22. See Hodges v. State, 19 S.E. 758 (Ga. 1894) (molesting three-year-old boy); Honselman v. People, 48 N.E. 305 (II1. 1894) (oral sex with 14 year-old boy); Davis v. Maryland, 3 H. &J. 154 (Md. 1810) ( on 19 year-old "youth"); Commonwealth v. Snow, 111 Mass. 411 (1873) (seducing a "boy"); Territory v. Mahaffey, 3 Mont. 112 (1878) (seducing a 14 year-old boy); Prindle v. State, 21 S.W. 360 (Tex. Crim. App. 1893) (oral sex with an adolescent boy). 23. See People v. Hickey, 41 P. 1027 (Cal. 1895) (man charged with sodomy with another man); People v. Moore, 37 P. 510 (Cal. 1894) (same); Foster v. State, 1 Ohio Cir. Dec. 261 (Ohio Cir. 1886) (three defendants charged with gang raping a fourth man); Lewis v. State, 35 S.W. 372 (Tex. Crim. App. 1896) (oral and with woman); Medis v. State, 11 S.W. 112 (Tex. Crim. App. 1889) (two men charged with anal sex on a third man). 24. See, e.g., Davis, 3 H. & J. at 154 (defendant "with force and arms.., did make an assault... beat, wound, and illtreat" a 19 year-old "youth").

HeinOnline -- 82 Iowa L. Rev. 1014 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1015 century,2 and consent on the part of the accomplice made it harder and usually impossible to prove each crime. As to the last point, where the victim of a crime against nature consented to the act, her or his evidence required independent corroboration. Such corroboration would have been highly unlikely when the penetration was committed in a private space .2 Likewise, a rape conviction required corroboration of the complaining witness unless she could show that she had actively resisted. For both rape and the crime against nature, there was no corroboration requirement for minors, who were legally incapable of consent. Crime-against-nature statutes were the only formal regulations of same-sex intimacy in the United States before the 1880s. What inspired such laws was the natural law philosophy valorizing procreative sex within marriage. Although that philosophy was doubly pertinent to same-sex intimacy between consenting adults, the statutes were rarely applied to such conduct: crime-against-nature laws were little enforced before 1880, and when they were enforced the circumstances rarely involved consenting adults. Thus it cannot be surprising that the U.S. Census Bureau reported in 1880 that only sixty-three prisoners were then incarcerated for crimes against nature in the entire country.Y A majority (thirty-two) of the prisoners were males of color in the South, and a third of the white prisoners were foreign (European) born. To the extent crime-against- nature laws were mechanisms of social control, their objects were people of color and foreign-born individuals, both "alien" to a nervous white Anglo- Saxon America. The foregoing account suggests that the traditional regime of crime- against-nature statutes was virtually unrecognizable as one regulating same- sex intimacy between consenting adults. As far as I can tell, there is no reported case in the United States before 1880 where a sodomy conviction was upheld against a man apparently engaged in consensual intercourse with another man, or a woman engaged in intercourse with another woman. 8 Thus people like Alice Mitchell, Elvira Mugarrieta, and Ralph

25. See Hodgkin, 53 N.W. at 794 (describing Michigan law and citing generally to Bishop on Criminal Laws § 1127). 26. In Medis, 11 S.W. at 112, Milton Werner, the person being sodomized, was the only witness to penetration. Two other witnesses saw defendant Charles Medis (but not defendant Ed Hill) atop Werner. The witnesses heard Werner exclaim that he would be "served" next. When the witnesses made their presence known, all three participants jumped away, and Werner responded to the witnesses' intent to charge Medis and Hill by saying he "did not care a d._n." The court reversed the Medis and Hill convictions because Werner was a consenting accomplice whose testimony as to penetration was not corroborated. 27. See U.S. Dep't of the Interior, Census Office, Report of the Defective, Dependent, and Delinquent Classes of the Population of the United States, as Returned at the Tenth Census 506-09, 516-17, 562-63 (Washington, D.C., Government Accounting Office 1880), excerpted in Katz, Gay American History, supra note 3, at 57-58. 28. Commonwealth v. Snow, 111 Mass. 411 (Mass. 1873), may have involved consensual adult intercourse, but the "victim" denied he consented and was referred to by the court as a .boy."

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Werther, whose stories initiated our account, were rarely arrested for committing crimes against nature in the nineteenth century, yet they were the characteristic demons of the 1890s. Their lives reflected a new medicalized, rather than natural law, discourse about gender and sexuality that aroused urban middle-class America by the 1880s and yielded a new and more complicated regulatory regime. That regime, ironically, included crime-against-nature laws, which were modernized to apply to consensual same-sex intimacy.

B. The Discourse of Degeneracy in UrbanizedAmerica and New Specifications of the Crime Against Nature The 1880s were a relative boom time for enforcement of crime against nature.29 Where the 1880 Census had identified 63 prisoners for this crime, the 1890 Census identified 224, a fourfold increase." Appendix 1 to this Article, reporting annual arrests (but not imprison- ments) for the crime against nature in nine American cities, suggests that most of this increase occurred in the big cities of the East, especially Philadelphia and New York City. New York City, which had prosecuted a total of twenty sodomy cases in the eight decades from 1786 through 1873,-1 was arresting almost as many men each year for the crime by 1890 and almost double that amount each year by 1900. Other major transportation centers (especially ports), notably Chicago, Boston, San Francisco, St. Louis, and Baltimore, reported small but regular arrests for the crime by the 1890s. In the South, the traditional pattern continued, however: relatively few arrests in the big cities, occasional arrests (typically for sex with barnyard animals) in small towns and rural areas, and a focus 3 2 on people of color. New sodomy records were set in the 1910s. The chart below summarizies the average annual arrests in the leading cities for the decades

29. Attend to the relativity of this statement. Crimes against nature came to be enforced much more often, but the figures for crime-against-nature arrests paled in contrast with the "big" sex crime of this era: prostitution, which was regulated by a multiplicity of laws and reaped huge arrest numbers. St. Louis, the largest city in the Midwest, reported single-digit sodomy arrests and thousands of arrests each year for prostitution, frequenting or inhabiting bawdy houses, and solicitation before World War I. See infra app. 2D. 30. See Frederick H. Wines, U.S. Dep't of Interior, Report on Crime, Pauperism, and Benevolence in the United States at the Eleventh Census: 1890 (pt. 1), at 18-20 (Washington, D.C., Government Accounting Office 1896). 31. See Michael Lynch, New York Sodomy, 1796-1873, at 1-2 (Feb. 1, 1985) (unpublished manuscript), discussed inJohn D'Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 123 (1988). 32. Appendix I reports the dearth of crime-against-nature arrests in Richmond and Washington, D.C. (Although there were sporadic arrests in the federally administered District of Columbia, it had no statute prohibiting the crime against nature.) Appendix 2B reports the dearth of arrests in Nashville, Tennessee. See supra notes 21-22 for cases reporting arrests and prosecutions for beastiality and other forms of crime against nature in rural Texas, Georgia, and Alabama. Texas reported more crime-against-nature court decisions before 1900 than any other jurisdiction.

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1900-1909 and 1910-1919.33

Average Annual Arrests, Average Annual Arrests, 1900-1909 1910-1919 Boston 9 19 Baltimore 5 24 Chicago 26 28 New York 64 82 Philadelphia 19 48 St. Louis 7 16

The fragmentary figures I have for San Francisco and Los Angeles suggest a similar, and perhaps more pronounced, trend for those West Coast cities. Southern cities like Richmond and Nashville accomplished their first recorded crime-against-nature arrests during the war.m Notwithstanding these records, sodomy arrests remained a tiny portion (a fraction of one percent) of total arrests in all cities. While these figures may reflect some increase in nonconforming sexual activity, they more certainly reveal a heightened state concern for citizens who threatened not only traditional views about marriage and sex but, increasingly, entrenched gender roles as well. To understand the steep rise in reported arrests for the crime against nature, one needs to understand, first, some of the social changes being wrought by urbanization, changes that were unsettling established views about gender and sex; second, the new medicalized vocabulary for talking about the cross-dressers and sodomites proliferating in America's big cities, namely, sexual "degenerates" and "inverts"; and, third, how crime-against-nature laws themselves changed to facilitate state regulation of these new kinds of social demons. Although crime-against-nature laws played a role in policing inverts and degenerates, such laws were ultimately insufficient to the task.

1. Urban Perversions:Prostitutes, "Passing"Women, and "Fairies" The feminist and gay historiographical literature has developed convincing reasons to explain the heightened awareness of nonmarital sex generally and same-sex intimacy in particular in the period between the end of Reconstruction and the end of World War I.- America's urbanization, which accompanied its post-Civil War industrialization, was an important factor, in part because it concentrated in one place large

33. The averages in text are calculated from the figures in Appendix 1. 34. See infra app. I (Richmond); infra app. 2B (Nashville). 35. What follows draws liberally from Chauncey, Gay New York, supra note 4; Anthony Rotundo, American Manhood: Transformations in Masculinity from the Revolution to the Modem Era (1993); Smith-Rosenberg, supra note 4; Allan Bdrubd, Lesbians and Gay Men in Early San Francisco: Notes Toward a Social History of Lesbians and Gay Men in America (Mar. 27, 1979) (unpublished manuscript, on file with San Francisco Gay History Project, San Francisco, CA).

HeinOnline -- 82 Iowa L. Rev. 1017 1996-1997 1018 82 IOWA LAW REVIEW [1997] numbers of people with heterogeneous sexual tastes and afforded them many opportunities for satisfying those tastes. Where sex in small towns and farms could be closely monitored by family and neighbors and was tied to procreation for economic reasons, sex in the city focused more on pleasure than procreation: large families were not as desirable for urban dwellers pinched by insufficient space, and unconventional sex was less well monitored. As Ralph Werther discovered as a student in the 1880s, one could assure anonymity in New York City simply by walking several blocks from one's neighborhood. One could also, through trial and error, discover suitable partners for unconventional sex; over time, communities of like-feeling people could form. Demand then would follow supply, as people predisposed to minority sexual tastes would gravitate to big cities from small towns and rural areas. The result: a synergistic spiral of sexual variety. This is what happened in America's urban centers, around and after the Civil War. The main phenomenon, eclipsing all others, was the expansion of prostitution and a middle-class recoil from that expansion36 Municipalities and states enacted new laws criminalizing prostitution and maintaining houses of "ill fame" in the middle third of the century, but regulatory attention greatly increased after the Civil War, when streetwalkers proliferated in American cities and towns of all sizes and became institutionalized by the bawdy house, where groups of female sex workers could live together and ply their trade to customers. The expansion of prostitution was met with a "purity movement" against it. Although St. Louis initially adopted the Continental approach of regulating prostitution, containing it to "red light" districts, virtually all other American cities and states adopted a vigorous policy of suppression through criminal prosecution; even St. Louis abandoned its experiment in toleration by the mid-1870s 7 Cities as far flung as New York, San Francisco, and Richmond witnessed, from the 1870s onward, large-scale arrest activity against prostitution,ss and virtually no American city of any size was not vigorously prosecuting that trade in sex by 1900. Private action also played a role, as committees of citizens banded together to persuade

36. See generally Thomas C. Mackey, Red Lights Out: A Legal History of Prostitution, Disorderly Housts and Vice Districts, 1870-1917 (1987) (arguing that "while vice districting has been driven from the field of public policy choices .... [a] demand for sexually oriented diversion outside of accepted bounds... continues to exist despite the best efforts of social reformers"); David J. Pivar, Purity Crusade: Sexual Morality and Social Control, 1868-1900, at 10 (1973) (discussing the major contours of the purity reform movement, "including its accomplishments, the events in which purity reformers participated, the social functions of purity reform in the women's movement and urban progressivism and its effects upon the development of the social hygiene movement"); Ruth Rosen, The Lost Sisterhood: Prostitution in America, 1900-1918, at 14-27 (1982) (discussing progressives' beliefs on prostitution and penal and criminal laws they helped enact). 37. See infra app. 2D (detailing the hundreds of prostitutes and associated persons arrested after 1874). 38. See infra apps. 2A-2C.

HeinOnline -- 82 Iowa L. Rev. 1018 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1019 legislatures to enact, and to assist the police in enforcing, antiprostitution laws. A majority of states (starting with Iowa in 1909) adopted laws allowing individual lawsuits to shut down disorderly houses.3 The purity movement of the post-Civil War period reflected, at least in part, heightened middle-class concern for reinforcing the female gender role. In 1870, the purity movement was led by exemplars of the "New Woman," who was active in the public sphere of politics, literatu-re, and the marketplace that had traditionally been male preserves. The typical New Woman viewed the prostitute with sympathy and sought to help these less fortunate women, but women soon lost control of the purity movement to men. This was part of a larger socio-political phenomenon, as conceptual- ized by Carroll Smith-Rosenberg.40 Middle-class men found the New Woman, and women's increasing independence from men, threatening and conjured up a tremendous nostalgia for the old ideal of "true womanhood" that was being lost by women's movement from the private sphere of the home and family into public spheres of the workplace and public debate. True womanhood was nurturing (i.e., supportive of husband and children), nonsexual, and private. The prostitute, who was entrepreneurial, sexual, and public, was the antithesis of true womanhood and was the repository of middle-class concern that gender rules for women were eroding. Men controlled the apparatus of state power and deployed that apparatus to persecute the prostitute through arrests and harassment"4 Prostitution was the main focus of male America's reaction to the gender-bending New Woman, but an ancillary and related focus was

39. See Bascom Johnson, The Injunction and Abatement Law, 1 Soc. Hygiene 231 (1915). Thirty states had such laws by 1917. See Rosen, supra note 36, at 14-17 (discussing criminal and penal laws enforcement). 40. See Smith-Rosenberg, supra note 4, at 172-78 (discussing "true women," "new women," and effects of women's changing social roles); see also Rotundo, supra note 35, at 248-55 (discussing changes in man's spheres in early twentieth century); George Chauncey, Jr., From Sexual Inversion to Homosexuality: Medicine and the Changing Conception of Female Deviance, 58-59 Salmagundi 114, 139-40 (Fall 1982 - Winter 1983) [hereinafter Chauncey, From Sexual Inversion] (discussing how "declining marriage and birth rates of native-born middle class and the general movement of women into man's sphere alarmed many men"); Joe L. Dubbert, Progressivism and the Masculintiy Crisis, 61 Psychoanalytic Rev. 443, 443-55 (1974) (arguing that a "masculinity crisis" developed in the years 1880 to 1920 because of challenges to male sexual roles presented by the women's movement and the male perception of women exercising undue influence over social institutions). 41. St. Louis, to take the best documented example, was arresting thousands of women per year by the 1880s. Although men were gaining control of prostitution as pimps and landlords for bawdy houses and many more men were customers than women were prostitutes, relatively small numbers of men were arrested until 1917. Between 1886 and 1890, for example, an average of 1500 women per year were arrested for prostitution and related activities; only 30 men on average were arrested during the same period. See Appendix 2D for these and subsequent figures. (Note, however, that more men were arrested for prostitution- related activities than were arrested for the crime against nature during this as well as almost all other periods covered by Appendix 2D.)

HeinOnline -- 82 Iowa L. Rev. 1019 1996-1997 1020 82 IOWA LAW REVIEW [1997] women and men who "inverted" gender, such as the three figures who open this Article. Alice Mitchell was bourgeois culture's nightmare example of a New Woman, for she was not only wealthy, independent, and uninterested in men, but she proposed to appropriate the male role in a gender-bending marriage to a traditionally feminine woman, Freda Ward. When Mitchell's plans were thwarted, she appropriated the classic male response, jealous battery. Almost as disturbing were the "fairie," a contemporary term describing feminized men (such as Werther) who renounced the male gender role as he renounced the male sex role, and the woman "passing" as a man (such as Mugarietta) who appropriated male dress to deceive people into giving her the social and economic privileges of manhood. All of these figures were peripheral to nineteenth century America, but they were a periphery increasingly irritating to the national core. Americans had seen feminized men and passing women before and during the Civil War. What was new and disturbing in the post-Civil War period was, first, the greater incidence of known and even public cross- gender behavior; second, the formation of communities of gender-benders; and, third, the association of inverted gender roles with inverted sexual tastes. The evidence for these propositions is admittedly anecdotal, and most was written by shocked observers. In 1871, to take an early example, a sexual advice manual for men said that "every unnatural lust recorded in the mordant satires of Juvenal, the cynical epigrams of Martial, or the licentious stories of Petronius, is practised, not in rare or exceptional cases, but deliberately and habitually in the great cities of our country."4 2 The author described "restaurants frequented by men in women's attire, yielding themelves to indescribable lewdness," as well as "literature so inconceivably devilish as to advocate and extoll this utter depravity." Dr. Frank Lydston, in 1889, lectured the Chicago College of Physicians and Surgeons on the extensive "colony of male sexual perverts" in that city, and indeed in "every community of any size."43 According to the doctor, "they operate in accordance with some definite and concerted plan in quest of subjects wherewith to gratify their abnormal sexual impulses. Often they are characterized by effeminacy of voice, dress, and manner." In contrast to men, "women usually fall into perverted sexual habits for the purpose of pandering to the depraved tastes of their patrons rather than from instinctive impulses." He was referring to prostitutes, although he recounted one example of a "woman of perfect physique, who is not a professional prostitute.., who has a fondness for women." A broader survey of the American scene, by insider Edward Stevenson,

42. George Napheys, The Transmission of Life: Counsels on the Nature and Hygiene of the Masculine Function 29 (1871). 43. G. Frank Lydston, Clinical Lecture: Sexual Perversion, Sayriasis and Nymphomania, 61 Med. & Surgical Rep. 253, 254 (1889) [hereinafter Lydston, SexualPerversion), excerpted in Katz, Alamanac, supra note 14, at 213.

HeinOnline -- 82 Iowa L. Rev. 1020 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1021 claimed that "uranianism" (the German term for sexual inversion) was more widely dispersed and socially organized in the United States than in Europe by the turn of the century, with New York, Boston, Washington, Chicago, St. Louis, San Francisco, Milwaukee, New Orleans, and Philadelphia billed as "homosexual capitals."44 The evidence of communities of gender-benders is strongest and most direct for New York City and San Francisco.4 Ralph Werther told the stories of a couple of men who were "female impersonators" in New York during the 1870s and early 1880s: Frank White ("Eunice") and Angelo Angevine ("Phyllis")."' Even as early as 1870 there were saloons (one referred to as "Pugilists' Haven") where a fairy, or "female impersonator," could go and be cuddled, or robbed, by working class toughs. In the 1880s, Angevine, as Phyllis, went on sprees as a female impersonator in the Bowery-cross-dressing, with youths, and inviting them to sow some wild oats with her. Werther as "Jennie June" engaged in the same kinds of sprees in the 1890s. By then, there were many cruising areas in the city, most of them in lower Manhattan (the Bowery, Mulberry Street, Union Square). Several blocks south of Fourteenth Street, on Fourth Avenue, was the so-called "," the center of "androgyne culture" in the 1890s and the meeting place for the "Cercle Hermaphroditos." 47 With its drag shows and unusual couples, Paresis Hall was a minor tourist attraction as well as a hangout for female impersonators. Women passing as men had no similar focal points in the 1890s, but they were still able to match up with partners. Murray Hall, an influential Tammany Hall politician in the 1880s and 1890s, married twice, to other women. Both wives divorced Hall, not because he was a biological female, but because he paid too much attention to other women.

44. Xavier Mayne (pen name for Edward Stevenson), The : A History of Similisexualism as a Problem in Social Life app. C at 640 (1908). The same conclusion, that communities of inverts were organized in the leading American cities, was made by the distinguished sexologist Havelock Ellis. See Havelock Ellis, Studies in the Psychology of Sexes: Sexual Inversions (1897). 45. Ralph Werther's accounts, especially The Female Impersonators, Lind (Ralph Werther -Jennie June), Female Impersonators, supra note 2, are the best first-person accounts for this period in New York by someone who was himself a "female impersonator." Mayne (Edward Stevenson), supra note 44, is the best first-person account for San Francisco. Useful secondary sources, collecting primary evidence, for these cities are Chauncey, Gay New York, supra note 4, and Susan Stryker & Jim Van Buskirk, Gay by the Bay: A History of Queer Culture in the San Francisco Bay Area (1996). 46. See Lind (Ralph Werther -Jennie June), The Female Impersonators, supra note 2, at 172, 175-77 (describing his experiences at the Pugilists' Haven). 47. Id. at 146-63. A word on the rich terminology. Werther used the term "androgyne" to refer to feminized men such as himself, people who might be considered transsexuals today. The "Cercle Hermaphroditos" suggests their identification as both men (Hermes) and women (Aphrodite), and perhaps also some suggestion of genital dualism (the hermaphrodite has both male and female genitals). "Paresis Hall" was a derogatory popular or police name for the hall, drawn from the medical term for a psychopathic interest in sex, which the hall's denizens nonetheless accepted as a badge of honor. 48. See San Francisco Lesbian and Gay History Project, "She Even Chewed Tobacco": A

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As a frontier city, San Francisco offered women even more opportunities to pass as men, and apparently Elvira Mugarietta was simply one of a long string of women passing and flourishing as men in that city. The most famous San Francisco cross-dresser was Jeanne Bonnet. As a teenager, Bonnet embarked on a life of adventure dressed as a boy. The press described her as a "man-hater," though, "with short cropped hair, an unwomanly voice, and a masculine face which harmonized excellently with her customary suit of boys' clothes." 49 Renouncing men in 1875, she organized a gang of prostitutes who supported themselves by petty theft. Lying in bed waiting for her lover, Blanche Buneau, Bonnet was murdered in 1876, probably by a vengeful pimp." Bonnet's case was atypical even if dramatic; most women passing as men, such as Mugarietta, lived solitary lives and did not band together. In this sense, Bonnet's lifestyle mirrored more closely that of female impersonators and their male associates, who formed a discernible subculture. As in New York, San Francisco had its share of saloons frequented by female impersonators, the best known being the Dash on Pacific Street. Male cruising in the Barbary Coast saloon district and near the Presidio, where soldiers readily offered themselves for sexual hire, earned San Francisco the nickname "Sodom by the Sea." 5'

2. The New Discourse of Inversion and Degeneracy At the same time the nation was becoming mildly alarmed by the increasing visibility of people who were violating established gender norms, a new secularized vocabulary was being developed to describe these people.52 Rather than criticizing prostitutes and sodomites for conduct that violated a natural law or religious ideal, as John Winthrop had done, the new "sexologists" and their political allies criticized prostitutes and androgynes for a status that represented a degeneration (downward evolution) from normal gender identities and that threatened the health of a striving society. This emphasis on degenerate status as opposed to unnatural conduct reflected a key shift in thinking about same-sex intimacy. The most influential early sexologist was Richard von Krafft-Ebing, whose Psychopathia Sexualis5 3 was widely read by doctors in America as well as Europe in the 1880s and 1890s. He started with biologically

PictorialNarrative of Passing Women in America, in Hidden from History: Reclaiming the Gay and Lesbian Past 183, 185 (Martin B. Duberman et al. eds., 1989). 49. Id. at 188. 50. See id. at 188-89. 51. Stryker & Van Buskirk, supra note 45, at 18; see Mayne (Edward Stevenson), supra note 44 (describing at the Presidio). 52. The most educational accounts are 1 Nathan G. Hale, Jr., Freud and the Americans, The Beginnings of Psychoanalysis in the United States, 1876-1917, ch. 4 (1971) and Chauncey, From Sexual Invesion, supra note 40. See generally Ven L Bullough, Science in the Bedroom (1994); Lillian Faderman, Surpassing the Love of Men: Romantic Friendship and Love Between Woman, from the Renaissance to the Present (1981). 53. Krafft-Ebing, supra note 3.

HeinOnline -- 82 Iowa L. Rev. 1022 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1023 gendered assumptions about men's and women's different sexual instincts: man "has beyond doubt the stronger sexual appetite" and is "aggressive and impetuous," while nurturing woman "remains passive" as the man woos her.54 He posited that gender differences are profound. "The higher the anthropological development of the race, the stronger these contrasts between man and woman."' ' Krafft-Ebing took for granted that normal healthy sex is vaginal intercourse between a masculine male and a feminine female and then systematically categorized an array of deviations from this norm, all of them rooted in a congenital defect in the deviant's brain or constitution. "Inversion" by women or men revealing physical or psychological characteristics of the opposite sex was for Krafft-Ebing a leading sexual pathology reflecting a broader mental or physical "degeneration," or reversion to a prior evolutionary status." Krafft-Ebing's conception of the sexual invert was similar to, and directly inspired, Ralph Werther's conception of the androgyne. In later editions of his book, Krafft-Ebing told Alice Mitchell's story as an inversion tragedy. Psychopathia Sexualis was translated into English in 1892, and Havelock Ellis's Sexual Inversions, first published in 1897, popularized and softened its central themes for an Anglo-American audience. American doctors found Psychopathia Sexualis intellectually congenial with their own experience with gender-bending women and men. Reflecting the views of many colleagues who had done case studies, Dr. George Beard wrote in 1884 that when one's "sex is perverted, they hate the opposite sex and love their own; men become women and women men, in their tastes, conduct, character, feelings and behavior." 57 Later medical works, including Dr. Lydston's 1889 address, marked this sort of gender inversion as a more general phenomenon. s Americans were most fascinated with Krafft-Ebing's idea that any departure from strict binary gender roles (man=masculine, woman =feminine) represented a "degeneration" to more primitive forms. Theodore Kellogg, for example, maintained that degeneracy could be recognized by certain physical, psychical, or intellectual stigmata. He listed these clues to degeneracy: "precocity or retarded evolution of intellect";

54. See id. at 14. 55. Id. at 42. 56. See id. at 55. 57. George M. Beard, Sexual Neurasthenia, Its Hygiene, Causes, Symptoms, and Treatment 106-07 (1884). For other early examples, see James G. Kiernan, Sexual Perversion and the Whitechapel Murders, 4 Med. Stand. 170 (1888); Philip Leidy & Charles K. Mills, Reports of Cases of Insanityfrom the Insane Department of the PhiladelphiaHospital 13 J. Nervous & Mental Disease 712 (1886); George F. Shrady, Perverted Sexual Instinct, 26 Med. Rec. 70 (1884); P.M. Wise, Case of Sexual Perversion,4 Alienist & Neurologist 87 (1883) (case study of woman passing as a man who grabbed a female attendant in a "lewd manner"). 58. See Lydston, Sexual Perversion, supranote 43. For other early examples, see E.F. Daniel, Should Insane Criminals or Sexual PervertsBe Allowed to Procreate?,Med.-Legal J., 1893, at 275, 275- 87; Ellis, supra note 3, at 148-57; James G. Kiernan, Psychical Treatment of Congenital Sexual Inversion, 4 Rev. Insanity & Nervous Disease 293, 293-95 (1894).

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"exaggerated conscientiousness or absence of moral sense"; "eccentricity of ideas and feelings"; "one-sided talents, display of fantastic genius, and defect of higher rational processes."59 Popularizers like Kellogg found degeneracy too easily. Others, like Dr. Lydston, had this fault and added a moralizing punch line. All vice and crime, he maintained in a 1905 book on social vice, could be traced to "the degenerate classes," those "persons of low grade and development, physically and mentally, with a defective understanding of their true relations to the social system in which they live.... In them, vice, crime, and disease go hand in hand." Prostitutes (with inordinate sexual desire) and sexual inverts (with inappropriate sex and gender roles) were two of the chief degenerate classes, and they contributed in urban areas to a dramatic surge in "perverted" sexual practices.'r Lydston believed in "evolutionary reversion," whereby the prostitute and invert abandon the inhibitions of civilization and revert to subhuman, animalistic desires. More alarmingly, degeneracy was thought to be a social disease that can be passed on to the next generation, both through inheritable characteristics and the bad example set by degenerates to the young. As cures, Lydston and others of his era proposed bans on marriage by degenerates, eugenic castration, and sterilization. The Americans' extension of Krafft-Ebing's philosophy was racist as well as moralist. In an 1892 article, Dr. Irving Rosse associated sexual perversions with prehistoric "trogdolytes," barnyard animals, prostitutes, and people of color.12 His main contemporary example of perversion involved a "band of negro men" of "androgynous character" whose "rites". of phallic worship were raided by the Washington police; he also cited to arrests, mainly of blacks, in Lafayette Park, a notorious cruising ground in the shadow of the White House. Dr. Lydston's 1905 book on social disease devoted an entire chapter to the so-called degenerated practices of racial minorities and primitive cultures. "Physical and moral degeneracy-the latter involving chiefly the higher and more frequently acquired attributes-with a distinct reversion of type is evident in the Southern negro. This physical and moral degeneracy and atavism is especially manifest in the direction of sexual proclivities," Lydston wrote. "The removal by his liberation of certain inhibitions placed upon the negro by slavery itself ... has been especially effective as a causal factor of sexual crimes among the blacks of the South."63 A third author was inspired by the drag balls in black St. Louis to suggest that perversion and cross- dressing were imported from Africa. r4

59. Theodore Kellogg, Textbook on Mental Diseases 197-98 (1897). 60. G. Frank Lydston, The Diseases of Society (The Vice and Grime Problem) 37 (1905) [hereinafter Lydston, Diseases). 61. See id.at 308-09, 372-73 (tracing the influence of degenerate classes on the develpment of "perversion" in Chicago, Paris, and London). 62. See Irving C. Rosse, Sexual Hypochondriasis and Perversion of the Genetic Instinc4 17 J. Nervous & Mental Disease 795 (1892), excerpted in Katz, Almanac, supra note 14, at 232. 63. Lydston, Diseases, supra note 60, at 395. 64. See C.H. Hughes, Postscript to a Paper on Erotopathia, 14 Alienist & Neurologist 731,

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The sexologists' concerns were shared by larger culture. Around 1900 it was widely believed that the very fabric of society and the body politick was threatened by degenerate classes in general, and prostitutes in particular. Committees of citizens banding together to study and eliminate prostitution found evidence of sexual inversion as well. Chicago's Vice Commission, for example, reported vaudeville performances at bawdy houses where "men impersonate women and solicit men for 'perverted practices."'' New York City's , organized in 1905 to suppress prostitution, uncovered and reported bawdy houses where men solicited other men. By 1921 the Committee had dedicated itself to suppressing this form of degeneracy as well. Such findings were by no means limited to big cities. The Lancaster, Pennsylvania Vice Commission reported "[c]onsiderable evidence (impossible to print) of the practice of perversion in Lancaster by inmates of [bawdy] houses, by street walkers, by charity girls, and by men perverts or 'fairies,' and degenerates." 66 The citizen reformers vented an outrage more intense than the concerns raised by ivory tower sexologists. Anthony Comstock, the post office functionary who most relentlessly opposed prostitution and who founded the New York Society for the Suppression of Vice, reportedly had this to say about androgynes when he read Ralph Werther's autobiography: These inverts are not fit to live with the rest of mankind. They ought to have branded in their foreheads the word 'Unclean,' and as the lepers of old, they ought to cry 'Unclean! Unclean!' as they go about, and instead of the [crime-against-nature] law making twenty years imprisonment the penalty for their crime, it ought to be imprisonment for life.6 In these words, Comstock captured a central theme of popular prejudice: inverts, like prostitutes, did more than commit bad acts; like lepers, they were a status group defined by their perceived disease as much as by what they did. Comstock's Society in the 1910s assisted the New York police in apprehending male degenerates by spying on public toilets, male bawdy houses, and dance halls and saloons where sexual inverts socialized.

3. New Specifications of the Crime Against Nature The foregoing changes in society and its attitudes provide an explanation for the boomlet in local enforcement of crimes against nature after 1880. The boomlet was possible only because local authorities

731-32 (1895). 65. Vice Comm'n of Chicago, The Social Evil in Chicago: A Study of Existing Conditions, with Recommendations 129 (1911). Similar connections were noted in Hartford Vice Comm'n, Report of the Hartford Vice Commission 37 (1913); Vice Comm'n of Philadelphia, A Report of Existing Conditions, with Recommendations 5 (1913); and mentioned generally in Rosen, supra note 36, at 84-85 (referring to the same reports). 66. Vice Comm'n of Lancaster, A Report on Vice Conditions in the City of Lancaster, Pa. 44 (1913). 67. Lind (Ralph Werther -Jennie June), Female Impersonators, supra note 2, at 24-25.

HeinOnline -- 82 Iowa L. Rev. 1025 1996-1997 1026 82 IOWA LAWREVIEW [1997] reconfigured the always ambiguous crime-against-nature in ways that reached many of the degenerates that were arousing social concern. Specifically, the classic sodomy scenario, where the powerful man forced anal intercourse upon a weaker victim, gave way to a much broader scenario, where two adults engaged in consensual oral sex could be charged with the crime against nature, and where women as well as men could be prosecuted for the crime."' This bottom-up reconfiguration of the crime against nature drove a small but inexorable legal revolution. In 1817, English courts held oral sex not to be covered by the Act of 1533.69 Parliament responded with the to the Criminal Law Amendments Act of 1885. Although the Act was mainly concerned with prostitution and , the Labouchere Amendment had a broader focus: Any male person who, in public or private, commits, or is party to the commission of, or procures or attempts to procure th6 commission by any male person of, any act of gross indecency with another male person, shall be guilty of a , and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.0 Literally an appendage to a major prostitution law reform bill, the Labouchere Amendment is conceptually significant in its insistence that illegal sexual acts between men must not be limited to anal sex (sodomy and buggery, as understood by Anglo-American lawyers). Coming at a time when subcultures of male inverts had formed at the fringes of society, Labouchere's Amendment was an important regulatory expansion that permitted English authorities to regulate those subcultures through arrests for oral sex (which was understood to be the chief object of "gross

68. The 1880 Census reported only one woman incarcerated for sodomy or the crime against nature in 1880, but that changed in the next generation. See generally Nicole Hahn Rafter, Partial Justice: Women, Prisons, and Social Control (2d ed. 1990). New York City's annual police reports regularly reveal female perpetrators of sodomy after 1900; 31 of the 601 persons arrested between 1901 and 1910 were women, as were 18 of 914 arrested between 1911 and 1920; 32 of 1142 arrested between 1921 and 1930; and 24 of 1446 arrested between 1931 and 1940. Boston arrested 9 women for oral sex between 1889 and 1899-almost 10% of the arrests for such crimes; in the twentieth century, women were regularly arrested for oral sex, albeit in smaller percentages of total arrests. In Baltimore, an average of 1 or 2 women were arrested each year between 1917 and 1945. Although these numbers remain tiny compared with those for men and boys, they reflect a remarkable turning point in the history of sodomy: women as well as men were responsible actors in the theatre of perverted sexuality. 69. See Rex v.Jacobs, 168 Eng. Rep. 830 (1817) (finding that oral sex forced on a young boy did not constitute the offense of sodomy). 70. An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes, 48 & 49 Vict. 69, cl. 11 (1885) (Eng.). The legislative background, and Labouchere's own murky motives are discussed in F.B. Smith, Labouchere's Amendment To the Criminal Law Amendment Bil 17 Hist. Stud. (Melbourne) 165 (1976).

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indecency"). Indeed, this is the law that snared Oscar Wilde in 1895.71 His trials for gross indecency were publicized in the United States as well as England, and for years the term "Oscar" was synomynous with male effeminacy and sexual inversion. At precisely the same time, urbanized American jurisdictions were struggling with the issue of how to deal with oral sex. Some jurisdictions followed the English approach of enacting a new statutory crime, apart from but supplementing existing crime-against-nature or sodomy prohibitions. Michigan in 1903 simply copied Labouchere's Amendment to prohibit "gross indecency" between men.7 Massachusetts in 1886 adopted a new statute prohibiting "lewd and lascivious acts,"73 which served the same purpose as Labouchere's "gross indecency," namely to provide a new mechanism that could be applied to oral sex. Similar laws prohibiting lewd 7 and lascivious acts were adopted in Maryland (1916)74 Arizona (1917), " and Florida (1917) . 6 Most directly, California prohibited "oral copulation" by statutes adopted in 1915 and 1921.7 A second approach was to amend existing sodomy or crime-against- nature laws to specify their application to oral as well as anal sex. Six years before England adopted Labouchere's Amendment, Pennsylvania enacted the first detailed statutory specification in the English language of what "sodomy" might be: [T]he terms sodomy and buggery... shall be understood to be a carnal copulation by human beings with each other against nature, res venetia in ano, or with a beast, and shall be taken to cover and include the act or acts where any person shall wilfully and wickedly have carnal knowledge, in a manner against nature, of any other person, of penetrating the mouth of such person; and any person who shall wickedly suffer or permit any other

71. Wilde was a noted author and playwrite (including the homoerotic The Picture of Dorian Gray), an ultrafashionable dandy, and an invert (also the father of two children) with the wickedest tongue in England. The pugilistic Marquess of Queensbury left his card at Wilde's club with the epithet, "To Oscar Wilde, ponce and Somdomite [sic]." Richard Ellman, Oscar Wilde 438 (1988). Wilde sued the Marquess for libel in March 1895; Queensbury's lawyers, however, had the names of several young men Wilde had solicited to commit sexual acts for pay. The judge threw out Wilde's lawsuit, and the police arrested him on charges of sodomy (anal sex) and gross indecency (oral sex). XWlde's two criminal trials in April and May 1895 were an international sensation. Newspapers in England reported the testimony of male prostitutes from whom Wilde had apparently solicited sex, of the chambermaids who corroborated their acquiantance with the defendant and the mess their lovemaking left in bed, and of Wilde himself. For this and other discussion of Oscar Wilde's life and trials, see id. and The Trials of Oscar Wilde (H. Montgomery Hyde ed., 1962). 72. See 1903 Mich. Pub. Acts 198; see also 1939 Mich. Pub. Acts 148 (adding crime of gross indecency between females). 73. Mass. Gen. Laws ch. 436, § 1 (1887). 74. See 1916 Md. Laws 616. 75. See § 1, 1917 Ariz. Sess. Laws 2. 76. See ch. 7361, 1917 Fla. Laws. 77. See 1915 Cal. Stat. 586, repealed by 1921 Cal. Stat. 848 (replacing 1915 Cal. Stat. 586 with similar provisions).

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person to wickedly penetrate, in a manner against nature, his or her mouth by carnal intercourse, he, she and every such person committing any of the act aforesaid, or suffering the same to be committed as aforesaid, shall be guilty of the crime of sodomy or buggery .... 78 The Pennsylvania statute was an ambitious response, including women as well as men and the receiver as well as giver of oral sex. Following Pennsylvania's lead, specifying the crime against nature more precisely within state sodomy laws, albeit with less detailed statutes, were New York (1886), Ohio (1889), Louisiana (1896), Wisconsin (1898), Wyoming (1899), Iowa (1902), Indiana (1905), Washington (1909), Missouri (1911), Oregon (1913), North Dakota (1913), Virginia (1916), Minnesota (1921), and West Virginia (1923).7 In a third group of states, the specification of sodomy to include oral sex came through dynamic police and judicial interpretation of existing laws, rather than through legislative revision. Especially when state laws used elastic terms like crime against nature or carnal knowledge, without definition or elaboration, judges were able to reason from the underlying goals of such laws: oral sex is analogous to anal sex (sodomy) in their shared inability to contribute to the procreative project and in their unnatural use for copulation of body parts designed for breathing and excretion. As the Illinois Supreme Court said in the leading case, Honselman v. People," oral sex "is as much against nature.., as sodomy or any bestial or unnatural copulation as can be conceived." Honselman was followed by the courts of Georgia (1904), South Dakota (1910), North Carolina (1914), Alabama (1914), Nevada (1914), Delaware (1915), Montana (1915), Idaho (1916), Oklahoma (1917), Hawaii (1922), Kansas (1925), Mississippi (1937), Maine (1938), New Hampshire (1941), Tennessee (1954), and Rhode Island (1962).8' Although Illinois was a

78. Act ofJune 11, 1879, § 1, 1879 Pa. Laws 156. 79. See Act of Mar. 10, 1905, ch. 169, 1905 Ind. Acts 694; Iowa Code § 4937a (Supp. 1902); Act ofJuly 9, 1896, 1896 La. Acts 101, 101-02; Act of Apr. 12, 1921, ch. 224, 1921 Minn. Laws 277; Act of Mar. 30, 1911, 1911 Mo. Laws 198; Act of Mar. 3, 1886, ch. 31, 1886 N.Y. Laws 41; Act of 1913, ch. 37, 1913 N.D. Laws 2233; Act of Apr. 12, 1889, 1889 Ohio Laws 251; Act ofJan. 31, 1913, ch. 21, 1913 Or. Laws 56; Act of Mar. 18, 1916, 1916 Va. Acts ch. 295; Act of 1909, ch. 249, 1909 Wash. Laws 950; W. Va. Code Ann. ch. 149, § 12 (Barnes 1923); Wis. Stat. § 4591 (1898). 80. 48 N.E. 304 (I!. 1897). 81. See Woods v. State, 64 So. 508, 509 (Ala. Ct. App. 1914) (citing Honselman directly); State v. Maida, 96 A. 207, 208 (Del. Ct. Gen. Sess. 1915) (same); Herring v. State, 46 S.E. 876, 881-82 (Ga. 1904) (stating that oral sex was a crime against nature); Territory v. Wilson, 26 Haw. 360, 362 (1922); State v. Atwater, 157 P. 256, 257 (Idaho 1916) (endorsing the principle in Honselman); State v. Hurlbert, 234 P. 945, 945 (Kan. 1925) (same); State v. Cyr, 198 A. 743, 743-44 (Me. 1938) (same); State v. Davis, 79 So. 2d 452, 452-53 (Miss. 1955) (upholding criminalization of oral sex as sodomy); State v. Guerin, 152 P. 747, 749 (Mont. 1915) (citing and approving Honselman ); Ex parte Benites, 140 P. 436, 437 (Nev. 1914) (citing Honsdman directly); State v. Vredenberg, 19 A.2d 414, 415 (N.H. 1941) (citing Honselman); State v. Fenner, 80 S.E. 970, 971 (N.C. 1914) (same); ExparteDeFord,168 P. 58, 60 (Okla. Crim. App.

HeinOnline -- 82 Iowa L. Rev. 1028 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1029 relatively urbanized state, the states following Honselman were overwhelm- ingly southern and western states dominated by rural and small town populations. Other state courts rejected this reasoning. The leading case was the Texas Court of Criminal Appeals' 1893 decision in Prindle v. State.82 The Texas statute prohibited "the abominable and detestable crime against nature." With no definition of the term "crime against nature," the court felt constrained to follow the common law, which limited sodomy to anal sex. The judges expressed anguish that the law failed to reach this equally abominable crime against nature, but hoped that the legislature would fix the problem. Prindle was followed in California (1897), Kentucky (1909), Nebraska (1910), Arizona (1912), Utah (1913), Virginia (1923), Colorado (1927), New Mexico (1953), and NewJersey (1953). In all but NewJersey, the narrow judicial interpretation was overridden by legislation broadening the definition of sodomy or, in the case of California, creating a new crime.83 The process by which states broadened their crime-against-nature laws had immediate relevance for local enforcement of such laws. In state after state, once oral sex came under the ambit of the crime-against-nature law, the number of arrests skyrocketed. Indeed, the main factor linked with a dramatic surge in a city's sodomy law enforcement was the state's explicit authorization to apply the law to consensual oral sex. Review the figures in Appendix 1: Philadelphia's sodomy arrests jumped from one a year to double digits right after the 1879 law went into effect; sodomy arrests in New York City and Baltimore did not reach double digits until right after their states created explicit statutory crimes for oral sex in 1886 and 1916, respectively-, St. Louis's arrests for the crime hit double digits in 1905 but

1917) (including oral sex in sodomy as a crime against nature); State v. Milne, 187 A.2d 136, 141 (I. 1962) (upholding criminalization of oral sex as sodomy); State v. Whitmarsh, 128 N.W. 580, 583 (S.D. 1910) (same); Fisher v. State, 277 S.W.2d 340, 341 (Tenn. 1955) (same). 82. 21 S.W. 360, 361 (Tex. Grim. App. 1893) (stating that in order to constitute sodomy, the "act must be in that part where sodomy is usually committed"); see also Munoz v. State, 281 S.W. 857, 857 (Tex. Grim. App. 1926) (stating that the "disgusting, abominable, and nauseating act of using his mouth upon the person" does not come within the legislative definition of sodomy); Harvey v. State, 115 S.W. 1193, 1193 (Tex. Grim. App. 1909) (stating that charge of oral sex "too horrible to contemplate, and legislation must be adopted to cover "these unnatural crimes"); Mitchell v. State, 95 S.W. 500, 500 (Tex. Grim. App. 1906) (stating that oral sex does not constitute sodomy). 83. See 1917 Ariz. Sess. Laws (prohibiting unnatural sexual relations and amending the sodomy statute to include oral sex); 1915 Cal. Stat. 586 (declaring the acts of fellatio and cunnilingus as felonies), repealed by 1921 Cal. Stat. 848; 1939 Colo. Sess. Laws 97; 1974 Ky. Acts 406 (abolishing all common-law offenses and adding "the infamous crime-against-nature" of sodomy to the criminal statutes); Neb. Comp. Stat. § 28-920 (1929) (defining sodomy as .carnal copulation with a beast, or in an opening of the body except sexual party with another human being"); 1975 N.M. Laws 109 (stating that a person engaging in "unnatural copulation with another person of the same of opposite sex" is guilty of sodomy); 1923 Utah Laws 13 (penalizing "detestable and abominable crime [s] against nature); 1924 Va. Acts (reenacting a crime-against-nature law).

HeinOnline -- 82 Iowa L. Rev. 1029 1996-1997 1030 82 IOWA LAWREVIEW [1997] did not stay there until after Missouri's 1911 law included oral sex as sodomy; Richmond's first recorded arrest for buggery came the year before Virginia amended its law and were thereafter a regular item in its annual police reports; Los Angeles's arrests for crimes against nature zoomed up from 11 in 1915 (when California first tried to outlaw oral copulation) to 123 in 1923 (the first year after the 1921 law for which I have data). The most direct evidence is for Boston, which separately reported "lewd and lascivious conduct" arrests after the creation of this new crime in 1886 and which broke down arrests by gender. The pattern in that city shows how making oral sex illegal greatly expanded the reach of sodomy laws and rendered women as well as men sodomites:

Boston Arrests, 1880 - 1900

Sodomy Lewd and Lascivious Conduct Men Women Men Women 1880-1885 11 0 - 1886 2 0 - - 1887 2 0 11 0 1888 1 0 6 0 1889 0 0 5 4 1890 0 0 2 0 1891 1 0 3 0 1892 1 0 7 1 1893 1 0 11 1 1894 0 0 15 1 1895-1900 9 0 38 0

The conclusion that criminalizing oral sex isassociated with significantly increased sodomy law arrests can also be made statistically. My research associate, Mathew Michael, found that, for the cities for which we have arrest data (Appendix 1), controlled for population increases in those cities, a comparison of arrests before oral sex was illegal, with arrests after illegality, yielded a statistically significant difference under both an "Independent Samples T-Test" and (more weakly) a "Trivariate Regressions."8 The correlation is strong, but I would not assert a simple causation. The arrests and sodomy law revisions may have been, and I think were, part of a larger social process-social coercion against people with gender-bending and inverted sexual tastes. The legal process of statutory amendment and dynamic judicial and police interpretation of sodomy laws entailed an analytical discourse which specified what was forbidden and what was acceptable sexual conduct. The 1879 Pennsylvania law identified for the first time precisely what was

84. See Mathew Michael, Analysis of the Adoption of Oral Sex Laws on Sodomy Arrests for Selected Cities (Aug. 1997) (unpublished manuscript, on file with the Iowa Law Review).

HeinOnline -- 82 Iowa L. Rev. 1030 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1031 involved in the crime against nature, and that became the norm as states revised their sodomy laws. Judicial opinions reviewing sodomy convictions, which were earlier in the century often just a paragraph, announcing that "unmentionable" conduct had occurred, began near the end of the century to describe the circumstances of the crime and the relationship of the parties. Most of the opinions engaged in a reasoning process, rather than just denouncing the "abominable" nature of the conduct and the crime. (These developments generally occurred later in the South.) Treatises and practice manuals chatted about the crime against nature. This legal discourse paralleled the more important medical and popular discourse that was creating the idea of "sexuality" during this era. That the crime against nature was much talked about does not mean there was less revulsion; there may in fact have been more. To convict of sodomy, the state had to prove penetration of a sex organ into one of the included orifices, and where the act was consensual the testimony of the partner could not convict without corroboration. The penalty for sodomy, a , was stiff, ranging from several years to life in prison. One might have expected reluctance on the part of juries to indict and convict, and this was the case in jurisdictions where sodomy laws were only occasionally enforced. Surprisingly, jurisdictions with double-digit annual sodomy arrests saw relatively high conviction rates. Consider the conviction rates (including guilty pleas) in New York City for the following years:5

Sodomy Rape Seduction Adultery Incest 1910 33% 18% 4% 18% N/A 1915 52% 38% 11% No cases 55% 1920 52% 35% 17% 50% 43% 1925 48% 33% 7% 25% 58% 1930 50% 34% 9% No cases 25% 1935 45% 31% 9% No cases 50%

Although the conviction rates for sodomy were comparable to those for incest (categorized with sodomy in the arrest reports as crimes of "depravity"), they were greater than the rates for adultery (a misdemeanor) and substantially greater than the rates for felonious assault, rape (the New York Police Department category for against women under age eighteen, "statutory rape" in later years), and seduction (sexual assault on women over age eighteen, "rape" in later years). Sodomy conviction rates seem high compared to the other crimes.s6

85. The data that follow are taken from the Annual Reports of the New York City Department of Police. The five-year increments are representative for the period, and are consistent with similar data from the Baltimore Police Department's Annual Reports. I calculated "conviction rates" simply by dividing total convictions in a given year by total dispositions (convictions plus acquittals). This leaves out arrests for which there was no disposition; hence, under other calculations the percentages in text would be a little bit (not much) lower. 86. The surprisingly low conviction rates for seduction might be explained by that crime's

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The contrast is more striking in light of the fact that the other crimes were likely to have caused physical as well as psychological injury and usually had cooperating complainants; many of the sodomy cases were consensual, thereby requiring independent corroboration of even if the accomplice was willing to testify. The high conviction rates are probably attributable to a combination of factors: juror disapproval of defendants who had not only engaged in sodomy but were nonconforming in other ways such as dress and attitude, the desire of defendants to plea bargain to avoid publicity, and police reliance on "professional" witnesses (i.e., undercover cops and vice societies) who entrapped defendants.

C. New Mechanisms for Regulating Same-Sex Intimacy State expansion of criminal laws to prohibit oral sex was just one example of how the law adapted and responded to social concern with increased incidence of gender-bending and sexual inversion. More important, the laws that were applied (or created) to regulate prostitution in the post-Civil War era were sometimes drafted or adapted to regulate same-sex "degeneracy" as well. Those antiprostitution measures included disorderly conduct, vagrancy, loitering, , public lewdness or indecency, and solicitation laws. Although not targeted at inverts and cross-dressers, most of these laws could be and sometimes were deployed against them. In addition, most urban jurisdictions developed a state or local offense that was customarily used to arrest or detain cruising or parading inverts: in New York, the offense was "disorderly con- duct-degeneracy"; in San Francisco and Los Angeles, it was the state misdemeanor "lewd vagrancy"; in St. Louis, it was the municipal offense of indecent exposure and the state misdemeanor of lewd or lascivious acts. As a control measure, these laws offered many advantages over sodomy laws. Because the laws defined either state or municipal offenses (in contrast to sodomy, a state felony), they carried with them few procedural protections, such as a right to presentment to a grand jury, trial by petit jury, and so forth. Furthermore, proof was much easier than it was for sodomy laws, because all that was required was some unusual public conduct, such as exposure of one's genitals or a lewd statement to an undercover cop; to convict of sodomy, the state had to prove penetration of the sex organ, and the testimony of a willing accomplice had to be independently corroborated. Justice for the lesser offenses could for the foregoing reasons be summary: arrest and an overnight stay in jail, a quick plea bargain or conviction by a shocked city magistrate, and payment of a fine or imprisonment for a short period. For these law-based reasons, the state would have been able to harass same-sex intimacy through antiprostitution and general morals laws more effectively than through crime-against-nature laws. There is evidence that such organized legal harassment was underway before 1921. The best stringent standards of proof, requiring utmost resistance on the part of the victim.

HeinOnline -- 82 Iowa L. Rev. 1032 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1033 documented case is New York City. While sodomy arrests soared into triple digits during the 1910s and hovered at around 100 per year during World War I, arrests for "disorderly conduct-degeneracy" started at 127 in 1917 and increased fivefold during the war, reaching 756 in 1920 and 519 in 1921.87 Evidence for other cities is not so clear, because the reports do not break down arrests as precisely, but it is likely that the big cities of the East, Midwest, and West Coast were deploying antiprostitution laws against inverts as well. One kind of law was even developed during this period specifically to control gender-benders: prohibitions against "apparel or dress not appropriate for one's sex," which made cross-dressing a crime. Although female impersonators such as Werther were arrested or detained pursuant to such laws, they were mainly used against women who refused to conform to social stereotypes. The foregoing reflect the general trends in regulation of sexual inverts before 1921. The variety and rich evolution of this regime requires examination of laws adopted at all levels of American governance-state, municipal, and federal. As the following survey will reveal, federal regulation was fascinatingly episodic, statewide regulation came to target sexual inverts only in New York and California, and in most jurisdictions the laws (including all of the laws explicitly, prohibiting cross-dressing) applicable to or targeted at gender-benders were at the municipal level.

1. State Regulation New York's Penal Code of 1881 was fairly typical of state morals codes of the post-Civil War.Y Title X of the Code identified "Crimes Against the Person and Against Public Decency and Good Morals." These crimes included rape, abduction, carnal abuse of children, abortion, bigamy, incest, sodomy, indecent exposure, possession or publication of obscene prints and indecent articles, and keeping a disorderly house. In the same year, New York also enacted a Code of Criminal Procedure. 9 Section 887(4) of the Criminal Procedure Code embodied the state's main antiprostitution measure. It defined vagrant to include "[a] common prostitute, who has no lawful employment, whereby to maintain herself."t1' Vagrancy was made a misdemeanor punishable by a fine of up to two hundred dollars, imprisonment up to one year, or both.9' Beginning around the turn of the century, New York repeatedly

87. Compare infra app. 1 (New York sodomy arrests taken from police reports), with infra app. 4 (New York degeneracy arraignments taken from records of the Magistrates' Courts). The figures in text understate the arrests for degeneracy, because they are for arraignments and not arrests and because only those convicted (a high percentage) were reported during the period 1915 to 1921. See infra app. 4 n.373. 88. See ch. 676, 1881 N.Y. Laws (codified as The Penal Code of the State of New York (1881)). 89. See Act ofJune 1, 1881, ch. 442, 1881 N.Y. Laws. 90. N.Y. Code Crim. P. ch. 504, tit. VI, § 887(4), 1881 N.Y. Laws. 91. See N.Y. Code Crim. P. § 887, 1881 N.Y. Laws.

HeinOnline -- 82 Iowa L. Rev. 1033 1996-1997 1034 82 IOWA LAW REVIEW [1997] expanded its antiprostitution laws in ways that targeted male "degenerates" as well as female prostitutes. The first important amendment added section 887(9), which expanded the category of vagrant to include "[e]very male person who lives wholly or in part on the earnings of prostitution, or who in any public place solicits for immoral purposes." 92 The main purpose of this amendment, obvious on the face of the statute, was to provide a criminal sanction against male "pimps" who solicited for their female prostitutes; but a secondary purpose, apparent only from the context of its enactment, was to provide a legal basis for police action against male degenerates, who were sometimes called "harlots" or "prostitutes" themselves. Section 887(9) was adopted in the wake of an investigation of New York City's police force by the Legislature's Mazet Committee. Among the Committee's targets for inquiry was the unregulated proliferation of "male harlots," "fairies," and "degenerates" who hung out in dance halls or hotels. Although Mayor Robert Van Wyck denied knowing anything about "male harlots thronging the streets," and Police Chief William Devery testified that "male degenerates" patronizing lewd establishments were arrested for disorderly conduct, other witnesses were dissatisfied with the enforcement effort. George Hammond of the City Vigilance League testified before the Committee in April 1899 that "what we call male degenerates frequent [Paresis Hall], and it is a nightly occurrence that they solicit men for immoral purposes." 93 Another vigilante witness, Joel Harris testified: I saw and heard immoral actions and propositions by degenerates [in Paresis Hall].... That is a well-known resort for male prostitutes.... These men that conduct themselves there-well, they act effeminately; most of them are painted and powdered; they are called Princess this and Lady So and So and the Duchess of Marlboro, and get up and sign as women, and dance; ape the female character; call each other sisters and take people out for immoral purposes. I have had these propositions made to me, and made repeatedly.94 Seven months later (at the end of the investigation), Hammonid assured the Committee that "that unmentionable crime," the crime against nature, had "increased wonderfully within the last six months" because of the proliferation of "resorts for male prostitutes" and degenerates.9 s The alarmed Mazet Committee's lengthy report calling for suppression of vice in New York City was submitted to the legislature on January 15, 1900;

92. Ch. 281, 1900 N.Y. Laws (adding N.Y. Code Crim. P. § 887(9)). Section 887(9) was repealed by ch. 382, 1910 N.Y. Laws, which added a new § 1148 to the Penal Code that prohibited "soliciting for immoral purposes." 93. New York State, 2 Report of the Special Committee of the Assembly Appointed to Investigate the Offices and Departments of the City of New York 1431-32 (1990) (transmitted to the legislature Jan. 15, 1900), excerpted in Katz, Gay American History, supra note 3, at 73. 94. Id. at 1429-30, excerpted in Katz, Gay American History, supra note 3, at 72. 95. See 5 id. at 5125.

HeinOnline -- 82 Iowa L. Rev. 1034 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1035 eleven weeks later, the legislature added section 887(9), apparently in response to the Committee's alarm. Neither prostitution nor degeneracy abated after the adoption of section 887(9), however, and the New York legislature returned to the issue again and again." Citizen pressure crystallized in organized groups, most notably New York City's "Committee of Fourteen," which was founded in 1905 to clean up the city's vice, especially prostitution. 7 The Committee helped (and prodded) the police to investigate and break up disorderly houses and regularly reported on progress in making all forms of vice illegal. The Committee was especially interested in updating the state's vice laws. With the support of the Committee and its influential members,98 the legislature in 1915 adopted Senator Robert Wagner's bill to expand section 887(4) to define a vagrant as a person: (a) who offers to commit prostitution, or (b) who offers or offers to secure a female person for the purpose of prostitution, or for any other lewd or indecent act; or (c) who loiters in or near any thoroughfare or public or private place for the purpose of inducing, enticing or another to commit lewdness, fornication, unlawful sexual intercourse or any other indecent act; or (d) who in any manner induces, entices or procures a person who is in or near any thoroughfare or public or private place, to commit any such acts; or (e) who is a common prostitute, who has no lawful employment, whereby to maintain herself.9, A 1919 law, also boosted by the Committee of Fourteen and its allies, amended section 887(4) (b) to substitute "another" for "a female person," an apparent reference to same-sex indecency.1 ° The 1919 law also added new subsections that defined a vagrant as any person: (e) who receives or offers to or agrees to receive any person into any place, structure, house, building or conveyance for the purpose of prostitution, lewdness or assignation or knowingly permits any person to remain there for such purposes; or (f) who in any way, aids or abets or participates in the doing of any of the acts or things enumerated in [§ 887(4)] .... Sections 887(4) (c), (d), and (e) were broadly enough phrased that they could be applied to male degenerates as well as female prostitutes. Although the details of their enforcement history are not known, these provisions were applied to male degenerates for most of the statute's

96. The legislature in 1901 amended the state Tenement House Law to declare prostitutes doing business in tenements vagrants, and in 1913 the law was broadened to include pimps and madames. See ch. 598, 1913 N.Y. Laws (amending N.Y. Penal Law § 150). 97. See New York Pub. Library, Manuscript Div., Index Files, Committee of Fourteen [hereinafter Committee of Fourteen Papers]. The Committee's records are on file in the Manuscript Division, and my discussion of the Committee's work is drawn from those records. 98. See Legislation, Committee of Fourteen Bulletin #725 (Feb. 18, 1915), in Committee of Fourteen Papers, supra note 97, Box 87. 99. Ch. 285, 1915 N.Y. Laws (amending N.Y. Code Crim. P. § 887(4)). 100. See ch. 502, § 1, 1919 N.Y. Laws.

HeinOnline -- 82 Iowa L. Rev. 1035 1996-1997 1036 82 IOWA LAWREVIEW [1997] lifetime. Another provision of section 887 was also used against male and female inverts. Codifying an 1845 statute responding to riots where people dressed up as Indians,' °' section 887(7) of the 1881 Code included in its definition of a vagrant, "[a] person who, having his face painted, discolored, covered, or concealed, or being otherwise disguised, in a manner calculated to prevent his being identified, appears in a road or public highway."1 2 However improbably, New York police applied this law against cross-dressers. For example, the police used section 887(7) as the basis for arresting Savio Luechini for standing in front of Buffalo's Grand Theatre attired in a wig, dress, and make-up. Reaing a "no means of support" requirement into section 887(7), the Erie County Supreme Court overturned Luechini's conviction,'03 but it appears that this "disguise" statute was regularly applied to cross-dressers.'04 California's regulation of prostitutes and sexual inverts followed a pattern similar to that of New York. California's 1872 vagrancy law, as amended in 1891, made it a criminal offense to be an "idle or dissolute person, or associate of known thieves, who wanders about the streets at late or unusual hours of the night," or to be a "lewd or dissolute person who lives in and about houses of ill-fame."' 0 5 Both descriptions obviously referred to prostitutes but could be read more broadly. The vagrancy law was simplified and broadened in 1903 to make it a criminal offense to be either an "idle, lewd, or dissolute person, or associate of known thieves" or to be a "common prostitute."' 0 As thus amended, the so-called "lewd vagrancy" law became the most deployed criminal sanction against same- sex intimacy in California. 0 7 Unlike the state's sodomy law, it was broad enough to cover virtually any kind of erotic touching and, as a misdemeanor, carried no jury trial right. During the period 1880 to 1921, California jurisdictions vigorously enforced the state's vagrancy law. In San Francisco, for example, 168 persons were arrested for the crime as early as

101. Seech. 3, 1845 N.Y. Laws. 102. N.Y. Code Crim. P. § 887(7) (recodified by ch. 442, 1881 N.Y. Laws). 103. See People v. Luechini, 136 N.Y.S.2d 319 (Sup. Ct. Erie County 1912) (overturning conviction of cross-dressed man because state did not show indigency required of vagrancy); see also People v. Archibald, 296 N.Y.S.2d 834, 837 (App. Term. 1968) (upholding similar conviction and rejecting indigency requirement). 104. See Magnus Hirschfeld, Transvestites: The Erotic Drive to Cross Dress 277 (Michael A. Lombardi-Nash trans., 1991) (reporting arrests and prison terms of six and nine months for men "masquerading" as women in 1904 and 1907); Lind (Ralph Werther - Jennie June), Female Impersonators, supra note 2, at 108 (reporting that section 887(7) was used to arrest female impersonators in the 1890s). See also the debate between the majority and dissenting opinions in Archibald, 246 N.Y.S.2d at 834. 105. Ch. 117, §§ 5, 7, 1891 Cal. Stat. (codified at Cal. Penal Code § 647(5), (7) (1872)). 106. Ch. 89, § 1, 1903 Cal. Stat. (amending Cal. Penal Code § 647(5), (10) (now superseded)); see also Cal. Penal Code § 311 (indecent exposure law). 107. See Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 Cal. L. Rev. 557 (1960); Note, Use of Vagrany-Type Laws for Arrest and Detention of Suspicious Persons, 59 Yale LJ. 1351 (1950).

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1870, the number jumped to 572 for fiscal year 1883 and reached 1407 for fiscal year 1891; for the next 20 years, the police arrested 2000 to 4000 people per year for this crime.""8 Because almost any deviant conduct could constitute vagrancy under California law, it is not known how many of these arrests were for "lewd vagrancy." Los Angeles's statistics are equally murky until the 1930s, when the police reports started to break down the vagrancy numbers. In 1938, for example, 218 persons were arrested for "vag lewd" violations, and 420 for "vag dissolute" violations. To regulate cruising, the California police also relied on a provision of the original 1872 Penal Code that made it a misdemeanor if a person "willfully and lewdly .... [e]xposes his person or the private parts thereof, in any public place where there are present other persons to be offended or annoyed thereby." 9 This indecent exposure law permitted the police to arrest men for exposing their genitals in public parks, toilets, and automobiles. A 1903 statute made it a misdemeanor to "outrage[] public decency" and to "personif[y] any person other than himself or herself' with "intent of accomplishing any lewd or licentious purpose."1 Although the early details of its enforcement are not known from the official reports, the public indecency statute was at some point applied in the same broad way that New York applied its disorderly-conduct law-to permit police to harass and sometimes arrest people who seemed deviant or gender-bending. California's "personif[y] any person" law might have been applied to cross-dressers in the same way New York's "disguise" law was, but contemporary evidence suggests that cross-dressers were mainly arrested under section 185 of the Penal Code, an 1874 law that prohibited people from "masquerading" in another person's attire for unlawful purposes."' For example, Babe Bean was detained by the police in Stockton, California pursuant to the state masquerade law, but the officers released her when she persuaded 2 them that her cross-dressing was not for an unlawful purpose." Because of the concern with prostitution, every state at the turn of the century had a broad vagrancy statute, and almost all had lewdness, disorderly conduct, public indecency, or indecent exposure laws that could be used to regulate same-sex intimacy as well as prostitution. Although the police and court records in other jurisdictions do not show exactly how those laws were enforced, I would hypothesize that they were enforced against male inverts in big cities with large populations, such as Chicago, St. Louis, Cleveland, Detroit, Boston, Philadelphia, Baltimore, and

108. See the annual San Francisco Chief of Police's Reports for the period 1862 to 1912. These reports are on file in the San Francisco Municipal Library. 109. Cal. Penal Code § 331 (1872), as amended by 1873-74 Cal. Stat. 110. Ch. 201, § 1, 1903 Cal. Stat. (adding Cal. Penal Code § 650.5). 111. See Law of Mar. 30, 1874, ch. 614, § 15, 1874 Cal. Stat. 426 (current version at Cal. Penal Code § 185 (West 1992)). 1 owe this reference to Nan Hunter, Gender Disguise and the Law (1989) (unpublished manuscript, on file with the author). 112. See Sullivan, supra note 1, at 20.

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Washington, D.C. The logic of the hypothesis is that the state laws in these jurisdictions were sufficiently broad to include cruising female imperson- ators as well as soliciting prostitutes; the public was alarmed at varying levels in these cities at the growth of invert subcultures, and police forces all over the country shared similar attitudes of hostility to both female and male gender-benders. I would further guess that the inverted populations of southern cities were much smaller and less visible and, therefore, that there was little or no enforcement in Miami, Houston, Atlanta, Richmond, Nashville, Memphis, Dallas, and Charlotte before 1921.3' These hypotheses receive some indirect support from the following survey of municipal regulations.

2. Municipal Regulation State morality regulations were enforced at the local level, primarily by municipal police forces. Because prostitution and public degeneracy were heavily concentrated in urban areas and because local governments were still the primary regulatory authority for most Americans,' 4 it would be logical to look for morals rules in municipal ordinances. It is hard to develop a systematic array of municipal rules for this period, but I gathered nineteenth and early twentieth century municipal codes for most of the nation's largest cities and for a sample of medium-sized and smaller cities throughout the country. The codes I have found lend support to the hypotheses in the preceding paragraph and reveal new dimensions to the regulation of inversion as well as prostitution in this period. Appendix 6 to this Article is a handy reference guide to the kinds of regulations found in these municipal codes. (a) Multiplicity of Illegal Indecencies

Chicago's Code of 1881 is a useful starting point. Like New York's 1881 Penal Code, the Chicago Code assembled municipal prohibitions that had been created earlier. The Code made it unlawful to be a vagrant, defined to include "[a]ll idle persons who not having a visible means of support live without lawful employment; all persons habitually idly loitering about or wandering abroad and visiting or staying about groceries, drinking saloons, houses of bad repute, gambling houses or railroad depots ... .""s Other provisions declared "[e]very house of ill fame or house of assignation where men and women resort for the purpose of prostitution" to be a public nuisance and made it illegal to keep or live in

113. The hypothesis for southern cities is supported by the scanty enforcement of the crime against nature in Nashville, see infra app. 2B; Richmond, see infra app. 2C; and Dade County, Florida, see infra app. 2E. 114. See William J. Novack, The People's Welfare: Law and Regulation in Nineteenth Century America (1996). 115. Chicago, Ill., Municipal Code § 1598 (1881)(codified and revised by EgbertJamieson and Francis Adams, 1881).

HeinOnline -- 82 Iowa L. Rev. 1038 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1039 such a house.' 6 Sandwiched within these house-of-prostitution provisions was a lewd-behavior law the same as or similar to ordinances adopted in many other cities between 1850 and 1950: If any person shall appear in a public place in a state of nudity, or in a dress not belonging to his or her sex, or in an indecent or lewd dress, or shall make any indecent exposure of his or her person, or be guilty of any lewd or indecent act or behavior, he shall be subject to a fine of 1not7 less than twenty dollars, nor exceeding one hundred dollars.' Originally adopted in 1851, this law is strong evidence that Civil War era regulators linked lewdness, cross-dressing, and indecency and considered such gender-deviant behavior a minor criminal offense. Furthermore, an ordinance providing for the punishment of "disorderly persons" defined them to include "[a]ny person who shall commit any indecent, lewd or filthy act in any place in the city, or shall utter any lewd or filthy 18 words . . . . This regime of "criminal practices" changed little before World War I, and the few changes moved in the direction of criminalizing degenerated statuses, perhaps in response to the work of the Chicago Vice Commission and citizens' groups (which completed work in 1911). The 1911 Code retained all of the above crimes in the same words and added several new criminal practices. The main one was "disorderly conduct," which was a misdemeanor expanded to include "all persons who are idle or dissolute and go about begging," as well as loiterers and persons found in "houses of ill-fame or gaming houses."" 9 In a new ordinance aimed against "night walkers," the 1911 Code declared to be common nuisances "[a]ll prostitutes, solicitors to prostitution, and all persons of evil fame or report, plying their vocations upon the streets, alleys or public places in the city."' 20 A new "loungers and loafers" law provided that "[n]o person shall obstruct or encumber any street. corner or other public place in the city by lounging in or about the same after being requested to move on by any police officer...... 121 Finally, a revised vagrancy law criminalized "[a]ll persons who are idle and dissolute.., common night walkers; persons lewd, wanton or lascivious in speech or behavior." 2 The provisions of the 1911 Code, which were carried through without change in the 1931 Chicago Code, not only reached beyond female prostitution to include male degeneracy, but created a multiplicity of elastic offenses that any kind of sexual nonconformist could be charged with violating.

116. See id. § 1602 (keeping); id. § 1604 (nuisance); id. § 1605 (living). 117. Id. § 1603. 118. Id. § 1613. 119. Chicago, Ill., Municipal Code § 2012 (1911) (revised and codified by corporation counsel EdwardJ. Brundage, 1911). 120. Id. § 2018. 121. Id. § 2030. 122. Id. § 2031.

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The Chicago codes of 1881, 1911, and 1931 are more detailed regulations of sexual- and gender-deviance than New York's, California's,123 and other state codes of the period. With a few notable exceptions, most large and many medium-sized cities had comparably detailed criminal offense codes (see Appendix 6). 'Some cities-notably San Francisco (Appendix 5)-had more detailed codes. The level of detail in these municipal codes reflects the fact that cities remained the primary regulatory authority until the twentieth century, but also bespeaks the intensity of regulatory interest in gender- and sexual-deviance. That interest grew discernibly between 1880 and 1920. Following or anticipating the New York-California-Chicago model, cities made any kind of lewd conduct or solicitation illegal. More dramatically, after the Civil War, cities all over the country followed Chicago in making "gender inversion" (cross- dressing) a crime. Most dramatically, New York City created a new crime uniquely applicable to "sexual inverts," the crime of "degeneracy."

(b) Cross-DressingProhibitions Chicago's rule against appearing in public "in a dress not belonging to his or her sex" was uniquely applicable to nonprostitute gender-benders. Such a cross-dressing prohibition was neither original nor unique to Chicago. Indeed, Chicago's rule was almost a stock ordinance by 1881. Early versions, using the same language, had been adopted by Columbus, Ohio in 1848; Springfield, Illinois in 1856; Charleston, South Carolina in 1858; Kansas City in 1860; Houston in 1861; Toledo, Ohio in 1862; St. Louis in 1864; and San Francisco in 1866. In the last quarter of the nineteenth century, similar ordinances sprouted like mushrooms after a spring rain-Atlanta (1873), Nashville (1881), Memphis (1909), and Dallas (1911) in the South; Oakland (1879), San Jose (1882), Tucson (1883), Butte (1885), Denver (1886), Salt Lake City (1888), Santa Barbara (1890), and Los Angeles (1889) in the West; Minneapolis (1877), Sioux City (1882), Sioux Falls (1882), Peoria (1884), Omaha (1890), and Cedar Rapids (1906) in the Midwest. (Note the dearth of cross-dressing ordinances in the Northeast.) More proliferated after World War I. Although cross-dressing ordinances originated in the pre-Civil War period, they became widespread only in the period between the Civil War and World War I. Who was prosecuted under these laws? At whom were they aimed? Nan Hunter argues that cross-dressing ordinances and statutes sought to prevent gender fraud.24 Certainly, Hunter's thesis is fully applicable to

123. New York City, Philadelphia, and Boston. Governed by Congress, the District of Columbia had few such regulations as well. 124. See Hunter, supra note 111, at 1-5. This theme is developed for European cross- dressing prosecutions by Hirschfeld, supra note 104, at 279-97, who also reported that, in Europe, men sometimes "passed" as female prostitutes; he gave no examples of this phenomenon in the United States.

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New Orleans's 1856 ordinance making it unlawful "to appear masked or disguised in streets, or in any public place. "Iss Is it equally applicable to ordinances, such as Chicago's, that merely prohibited appearance "in a dress not belonging to his or her sex"? It appears so. Such laws in Europe as well as the United States were often applied to gender fraud cases: women who sought to "pass" as men, even marrying other women. Conversely, the lack of fraud was often a reason not to apply a cross- dressing law. For example, Randolph Milburn of Washington, Ohio was arrested in 1906 for wearing women's clothing. He defended himself by pointing to the gender-inappropriate attire of Mary Walker and by arguing that he, like Walker, was not engaged in deception. The police agreed to let him dress in women's attire when Randolph agreed to wear a silver breastplate saying, "Randolph Milburn. I am a man."'2 The gender fraud theory does not completely account for the historical and statutory context of municipal cross-dressing laws, however. Some of the early laws were responses to feminist demands that women should enjoy complete equality with men, including equal rights to wear trousers. 2 7 Accordingly, they were applied to women, and sometimes men, who violated traditional gender roles. Recall Jeanne Bonnet, the cross-dressing bandit who defied traditional feminine roles even more strongly than prostitutes did. She was reportedly arrested twenty times for "wearing male attire," an offense in San Francisco after 1866. Bonnet went to jail for some of the arrests because she refused to pay the fine. "The police might arrest me as often as they wish-I will never discard male attire as long as I live." As no one believed that Bonnet was actually a man, the laws were being applied to control gender deviance rather than gender fraud. The gender fraud explanation also does not account for the fact that both men and women were arrested under cross-dressing laws, even though it was rare in the United States for men to "pass" successfully as women. St. Louis, which had one of the earliest cross-dressing laws, reported arrests for this crime from the 1880s into the 1920S.'21 Overall, men accounted for more than one third of the arrests. Although St. Louis is the city for which I have the best data, there is plenty of evidence that other cities arrested both men and women as well.'2 By Werther's

125. New Orleans, La., Ordinance No. 3121, § 9 (Dec. 2, 1836). Similar were New York's 1845 disguise statute and Wilmington, Delaware's 1856 ordinance making it unlawful to "publicly appear . . . in an indecent or fantastic costume, garb or dress, or appear with painted, masked, or disguised face." 126. Hirschfeld, supra note 104, at 276-77. 127. Elizabeth Cady Stanton wrote in 1869: "When we have a voice in the legislature we shall dress as we please, and if, by concealing our sex we find that we, too, can roam up and down the earth in safety, we shall keep our womanhood a profound secret." Sullivan, supra note 1, at 2. Stockton, California assertedly had a law prohibiting cross-dressing for precisely this reason, but the law was repealed by the 1890s. See id. at 64. 128. See infra app. 2D. 129. San Francisco's arrest records include cross-dressing arrests from the 1860s onward. See infra app. 2A. Although the records do not break down those arrested by sex, as St. Louis's

HeinOnline -- 82 Iowa L. Rev. 1041 1996-1997 1042 82 IOWA LAW REVIEW [1997] account, female impersonators were regularly arrested in New York for cross-dressing, even though no one would have mistaken them for biological women in most cases. The application of cross-dressing laws to female impersonators, who solicited sex from men, and to Bonnet, who had a female lover, suggests a third rationale for these laws: sexual deviance. Unlike the earlier New Orleans disguise ordinance, the St. Louis and Chicago cross-dressing prohibitions were typical in being part of a general prohibition of public lewdness or indecency. This legal context would suggest that sexual deviance was a weighty concern from the beginning, in at least some jurisdictions coming before the sexologists popularized the concept of inversion. The way the laws were written and situated suggests that nonconforming apparel was viewed as a form of indecency, a challenge to sexual as well as gender roles. The rationales for cross-dressing laws were dynamic as well as multifarious. When in 1897 Elvira Mugarietta, also known as Babe Bean, was detained by police in Stockton, California for dressing as a man, the authorities were tolerant of this gender-bending eccentric. Persuaded that she did not violate the state masquerade law because she conspired to commit no crime nor deceit, Babe Bean was allowed to dress as she wished and was hired as a correspondent for a local newspaper. 3 0 Other "Girls of Stockton" protested, observing: There used to be a law against females dressing like the human male being, but it seems not to apply to Babe Bean. If Babe Bean is a girl, and continues to dress in boys' clothing, the rest of us ought to have the same privilege, and we are going to do it.,3, Dozens of women as well as men came to Bean's defense. Obviously, Stockton's citizens had not read their Krafft-Ebing, whose medicalization of hard-wired gender roles was slowly seeping into mainstream society. Around the turn of the century, urban America was no longer bemused by gender-bending such as Mugarietta's; it was, instead, threatened. Whereas Babe Bean could dress as a male with little harassment in 1890s Stockton, Jack Garland (Mugarietta's next alter ego) felt compelled to carry on a complete masquerade in post-1900 San Francisco, which was one of the first cities to have an ordinance directed specifically and exclusively against cross-dressing, adopted in June 1903.132

did, a few early police reports did separate men-dressing-as-women arrests from women- dressing-as-men arrests: both women and men were arrested. Similarly, Nashville's police reports include men as well as women arrested for this crime. Boston irregularly arrested people for "assuming to be female" (1874), "maintaining a masked ball" (seven people in 1876), and "wearing women's clothing" (1879)-obviously including and perhaps focusing on men as the objects of regulation. 130. See Sullivan, supra note 1, at 61-62. 131. Id. at 62-63. 132. In June 1903, San Francisco made it "unlawful for any person to appear in public, with intent to deceive, in the dress, clothing or apparel not belonging to or usually worn by persons of his or her sex." Five months later, the city made it "unlawful for any person to

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In the major urban areas around the turn of the century, gender inappropriateness was no longer just a feminist statement or a species of fraud-it was increasingly considered a mental sickness. Cross-dressing had been associated with the emerging concept of sexual inversion for both men and women in New York, Chicago, St. Louis, and San Francisco well before 1900. That association broadened after 1900,just as sexologists were challenging Krafft-Ebing's simplistic associations.'33 The image of degradation, or "degeneracy," associated with deviant women was dramatically displayed by the Alice Mitchell case, which was widely reported in the news and medical media. By the turn of the century, the male androgyne such as Ralph Werther was as much a threat as the passing woman in many urban areas. As Appendix 6 reveals, cross-dressing ordinances were adopted all over America in the first several decades of the twentieth century-with particularly concentrated activity in Florida (Miami Beach, Orlando, Pensacola, Sarasota, Tampa, West Palm Beach) and Ohio (Cleveland and Cincinnati joining Columbus and Toledo). By World War II, two states (New York and California) and more than four dozen cities had laws specifically addressed to disguise, indecent, or cross- gender attire.

(c) Degeneracy Prohibitions(New York)

As World War I approached, regulatory attention in many American cities was focusing on issues associated with sexual inversion and degeneracy. For New York City, this shift can be documented by reference to enforcement data. Between 1833 and 1882, New York City's municipal magistrates had been authorized by the state legislature to develop "disorderly conduct" as a common-law crime. An 1882 statute explicitly empowered New York City magistrates to punish "disorderly conduct" as a criminal offense (lower than a misdemeanor); disorderly conduct, in turn, was applicable to "[e]very person who shall use any threatening, abusive, or insubordinate behavior with intent to provoke a breach of the peace or where a breach of the peace may be occasioned."'s4 It is apparent that this statute was applied to gender-benders. By-and probably well before-1916 the New York Police Department used a category in their

engage in or be a party to or solicit or invite any other person to engage in or be a party to any lewd, indecent or obscene act or conduct." For the full text and citations for these ordinances, see infra app. 5. 133. See Hirschfeld, supra note 104 (describing people who had strong emotional urgings to dress in attire of the opposite sex). Contrary to Krafft-Ebing and even Ellis, Hirschfeld carefully distinguished between transvestism (emotional satisfaction from cross-dressing), fetishism (sexual allure of articles of clothing), and homosexuality (erotic attraction to a person of the same sex). Notwithstanding Hirschfeld, whose book was not translated into English until 1991, the American sexologists followed Krafft-Ebing in thinking the phenomena related. 134. Ch. 410, 1882 N.Y. Laws (adding The Consolidation Act §§ 1458-1459 (giving authority to New York City magistrates to enforce disorderly conduct rules)).

HeinOnline -- 82 Iowa L. Rev. 1043 1996-1997 1044 8 2 IOWA LAW REVIEW [1997] arrest records for "Degenerates" (under the larger category of "Prosti- tutes"). The Committee of Fourteen examined the police records of arrests for "degeneracy" between 1916 and 1921 and sounded an alarm at its prevalence in the city.' The number of degeneracy arrests soared from 92 (for 1916) to an estimated 605 (for 1921), an increase the Committee's secretary attributed to the concentration of soldiers in the city and to the closing of disorderly houses. The Committee's analysis of police records is an illuminating glimpse into the way the police department enforced the antidegeneracy law. A third of the arrests came through the efforts of undercover police officers, and New York's Society for the Prevention of Vice (its Comstock Society) played a role in a majority of the 1921 arrests. More than half of the arrests involved fondling between people of the same sex; only a tenth involved sexual intercourse.3 6 Defendants charged with degeneracy had an eighty-nine percent conviction rate in 1921; one-third of those convicted were through plea bargains, two-thirds after trial. 13 7 Between a third and a half of those convicted were incarcerated in the work- house.3 8 Starting in 1922, the New York City Magistrates' Courts in their Annual Reports reported dispositions under this same category, "Degenerates." As Appendix 3 sets forth in detail, the trends found in the 1910s continued in the 1920s: arrests of degenerates climbed to higher levels, conviction rates hovered around ninety percent, and a dispropor- tionate number of those convicted were sent to workhouses rather than fined. These developments were marked formally following World War I. After a generation's worth of continued common-law elaboration, over a fourth of the business of New York City's magistrates' courts involved

135. See F.H. Whitin, Sexual Perversion Cases in New York City Courts, 1916-1921, Bulletin #1480 of the Committee of Fourteen (Nov. 13, 1921), in Committee of Fourteen Papers, supra note 97, Box 87. Although this was mainly an antiprostitution group, the Committee of Fourteen considered "perversion" to be "a serious associated social evil." Id at 6. The Committee believed that male degeneracy was in some ways more threatening than female prostitution, for "the pervert, not deeming his acts unnatural, is constantly seeking converts to his practice." XL at 2. 136. For the first 6 months of 1921, there were 293 arrests (88 of them by undercover police, 112 in subway toilets, 67 in movie theatres). The acts people were arrested for included this breakdown: Putting one's hands on another person 140 Permitting another to put hands on you 32 Indecent crowding of females 33 Offering, committing, permitting sodomy 39 Indecent exposure 17 See id. at 3. The first group was the largest, "because it is the safest way for the police to secure the evidence." Id. 137. For the first 6 months of 1921, 259 of the 293 arrestees were convicted. See id. at 4. Nine magistrates handled 208 of the cases; for those magistrates, 64 pled guilty, 124 were convicted after a trial, and only 20 were discharged. See id. 138. In 1920 it was 41%, in 1921 it was 33%. See id. at 5.

HeinOnline -- 82 Iowa L. Rev. 1044 1996-1997 REGULATION OFSAME-SEXINTIMACY, 1880-1946 1045 categories judges had teased out of the disorderly conduct law: mashers, degenerates, pickpockets and jostlers, car rowdies, vagrants, and sexual 3 solicitors.1 1 In 1922, the Nassau County Supreme Court declared this common-law process insufficiently precise to satisfy the vagueness element of the Due Process Clause. 40 A coalition of prosecutors and citizen groups immediately obtained a statutory response from the state legislature. The new disorderly conduct law, an offense applicable only in New York City, specified more precisely what constituted disorderly conduct. New section 722(8) of the Penal Code made it illegal for "[a]ny person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned... [f]requents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness." 14' As Appendix 3 shows, section 722(8) facilitated a boom of degeneracy arrests and convictions in the 1920s.

3. FederalRegulation The constitutional as well as political focus of morals regulation in the United States had long been local government. The federal government during this period followed state and municipal leads in areas of national competence and authority, namely, immigration and military affairs. Federal policy followed the same pattern of regulatory response that New York and California and cities like Chicago, St. Louis, San Francisco, New York, and Philadelphia were pursuing in this same period: regulation was initially aimed at excluding and controlling prostitution (female degenerates) but by World War I had segued toward excluding sexual inverts (male degenerates) as well. Like the state and local responses, the federal response invoked the new medicalized rhetoric of degeneracy, but the underlying social anxieties had more to do with the ways in which same-sex intimacy transgressed gender roles that were already under assault from the New Woman and her feminist ideas.

(a) Immigration Exclusion of Public Charges, Criminals, and Psychopaths

In the decades around 1900, the federal government adopted a series of measures designed to identify and exclude degenerate people seeking to enter this country. A major focus of early national immigration policy was the exclusion of lewd or dissolute individuals. The 1875 law that

139. See Letter from Lawrence Vieiller, Secretary, The Committee on Criminal Courts, to Hon. Alfred E. Smith, Governor, New York (May 11, 1923), in 1923 N.Y. Laws 642 (Bill Jacket). 140. See People ex reL Potter v. Board of Managers of the Wayside House, 196 N.Y.S.2d 887 (Sup. Ct. 1922). 141. Ch. 642, 1923 N.Y. Laws (adding N.Y. Penal Law § 722(8)). For the longstanding application of § 722(8) to homosexual loitering, see the summary opinions in People v. Lopez, 164 N.E.2d 720 (N.Y. 1959); People v. Liebentha 155 N.E.2d 871 (N.Y. 1959).

HeinOnline -- 82 Iowa L. Rev. 1045 1996-1997 1046 82 IOWA LAWREVIEW [1997] represented the first systematic effort at a national immigration policy forbade the "importation into the United States of women for the purposes of prostitution."' 42 Subsequent immigration statutes broadened that prohibition to include "persons suffering from a loathsome or a dangerous contagious disease," such as venereal diseases;4 ' "persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude," a category surely including crime against nature and gross indecency laws;44 and "persons who procure or attempt to bring in prostitutes or women for the purpose of prostitution."'4 All these prohibitions were carried forward by subsequent immigration laws and encoded in the omnibus Immigration Act of 1917,'14 which formed the basis for immigration exclusions until the McCarran-Walter Act of 1952.

The 1917 Act also added a new category of excluded individuals:4 persons suffering from "constitutional psychopathic inferiority." 1 7 As the Commissioner-General of Immigration put it in 1909, "[n]othing can be more important than to keep out of the country the anarchistically and criminally inclined and the degenerate in sexual morality."'48 Although he was referring to prostitutes and their procurers, who were debarred by the hundreds every year (see Appendix 4), the immigration exclusions were also occasionally applied to other kinds of sexual "degenerates," and through an astonishing reasoning process. A representative case was that of Nicholas P., a Greek who came to this country at age sixteen and was almost immediately deported.' 49 Arrested

142. Act of Mar. 3, 1875, § 3, 18 Stat. 477. 143. See Act of Mar. 3, 1891, § 1, 26 Stat. 1084. Congress failed to enact the agency's proposal to allow deportation of "immoral or lewd persons, prostitutes, and all afflicted with dangerous contagious diseases." 1896 Immigr. Serv. Ann. Rep. 18. 144. See Act of Mar. 3, 1891, § 1, 26 Stat. 1084. In the Act of Feb. 20, 1907, § 2, 34 Stat. 898, Congress expanded this category to include "persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude." 145. Act of Mar. 3, 1903, § 2, 32 Stat. 1213. 146. 39 Stat. 874. 147. Id. § 3. 148. 1909 Immigr. Serv. Ann. Rep. 115. 149. See Nicolas P., Bureau of Immigr., U.S. Dep't of Labor, INS File No. 53429/14, Accession 60A600, Box 869, Records of the INS, Washington National Records Center, Suitland, Maryland. For other interesting cases from this period, see also Salvatore M., INS File No. 53345/112 (deported 1911 after convicted of sodomy with a goat); Melvin & Annie Elizabeth L., INS File No. 53369/126 (commissioner 1912 allows wife and husband to stay despite admitted oral sex); John L, INS File No. 53430/51 (deported 1913 for attempted sodomy on a messenger boy); Albert McK. & Laura Florence H., INS File No. 53575/65 (deported 1913 and 1915 for unnatural sex and bringing woman [Laura] to country for immoral purposes); Daniel W.L., INS File No. 53839/81 (deported 1915 for engaging in sodomy, sometimes for pay); Prodromas S., INS File No. 53849/37 (ordered deported for engaging in same-sex sodomy for hire); MaryJane B., INS File No. 53925/153 (deported for engaging in different-sex sodomy for hire); Samuel James S., INS File No. 54134/212 (order of deportation 1916 because of a single act, while intoxicated, of sodomy and notwithstanding much character evidence that alien was person of good character); Hebert C., INS File No. 54258/35 (deported 1920 after several convictions of forcible same-sex sodomy with minors);

HeinOnline -- 82 Iowa L. Rev. 1046 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1047 for breaking and entering, the youth was interviewed by immigration investigators, who readily extracted casual admissions that the youth had frequented houses of prostitution, had been in the "habit of abusing [him]self, committing masturbation" since age twelve, and had engaged in "unnatural intercourse with men" both in Greece and in St. Louis, where he had settled. Based upon these admissions, he was deported to Argentina in 1912, not for prostitution or committing a crime of moral turpitude (sodomy), but as a "public charge." Nicholas P.'s case reflected the federal government's policy in the first two decades of the century to exclude sexual nonconformists on the ground that they were likely to become "public charges." The underlying theory was that their degeneration, evidenced by their loose sexuality, would ruin them and leave them to the public welfare system. The public-charge exclusion was an old one in American immigration laws. States excluded paupers and others likely to be public charges before national policy took shape, and in 1885 Congress excluded "any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge."'50 (Like the other exclusions, the public-charge exclusion was carried over in subsequent immigration laws, including the 1917 Act.) A particularly interesting early case was that of the Reverend Parthenios Colones, a Greek Orthodox priest who was in 1915 accused of making advances to two young men in Wheeling, West Virginia.'5 ' Based upon the young men's depositions, the Commissioner of Immigration petitioned for Reverend Colones's deportation, on the ground that "said alien has been found practicing prostitution subsequent to his entry into the United States, and that he was at the time of such entry a person likely to become a public charge." Unlike Nicolas P. and dozens of other illiterate immigrants who engaged in "moral perversions" and "prostitu- tion" (a synonym for male degeneracy) and were deported, Reverend Colones mounted a successful legal and political campaign to stay in this country. His lawyers plied the Immigration Service with affidavits discrediting the young men as "bad boys" and sued the government; allies in the Greek community of Wheeling denounced the proceedings and persuaded Congressman Matthew Neely to intervene for the priest. In 1917, the Solicitor of Labor ruled that "moral perverts" were not "public

Randall S., INS File No. 53992/45 (deported 1915 for indecent assault on small boy); Marco C. & Guillermo C., INS File No. 54148/36 (deported for soliciting same-sex lewdness on the streets and engaging in same-sex sodomy as lovers); Ernest C.H., INS File No. 54198/418 (INS 1920 decides not to deport notwithstanding conviction for committing unnatural act on young boy); William R., INS File No. 54262/143 (deported 1917 for single act of oral sex with young boy). My access to these INS files was conditioned upon my not disclosing the full names of the subjects. 150. Act of Aug. 3, 1885, § 2, 22 Stat. 214. 151. See Parthenios Colones, Bureau of Immigr., U.S. Dep't of Labor, INS File No. 54134/62, Accession 60A600, Box 869, Records of the INS. Because it is clear that Reverend Colones is deceased, the INS has allowed me to use his full name (compare the case files in supra note 149).

HeinOnline -- 82 Iowa L. Rev. 1047 1996-1997 1048 82 IOWA LAWREVIEW [1997] charges" under the immigration laws, absent tangible proof of pauper status. On the eve of World War I, the Immigration Service finally gave up and allowed Colones to remain in the United States. The Solicitor's opinion that degenerates could not be excluded or deported as "public charges" had little effect on immigration policy, for there were several other bases for deportation or exclusion of "sexual perverts," as they were increasingly termed after 1915. If convicted of sodomy or gross indecency or public lewdness or even if they just admitted conduct amounting to such an offense, noncitizens could be excluded or deported for having committed "crimes of moral turpitude." Some aliens were deportable for medical reasons. The case of Ludwig W. reflects the gradual transition from deporting degenerates as public charges to deporting them as medical psychopaths. 5 2 Ludwig W. was arrested in 1915 for sodomy in Atlantic City and admitted to the Immigration Service that he was "a degenerate prior to his arrival" and was "addicted to this practice [of degeneracy] prior to [his] coming to the United States." The Service ordered him deported on three grounds: public charge (the category the Solicitor later disapproved), committing a crime of moral turpitude before arrival, and avoiding inspection upon arrival. Before he could be deported, however, Ludwig W. was institutionalized for "constitutional inferiority with manic tendencies." He escaped from the hospital before the Immigration Service could deport him. After the 1917 Act created the category of "constitutional psychopath- ic inferiority" as a basis for exclusion or deportation, Ludwig W. could have been debarred from entry or deported for this medical reason. Congress added this category ostensibly "to prevent the introduction into the country of strains of mental defectives. that may continue and multiply through succeeding generation,"' 53 but the medical experts in the Public Health Service charged with enforcing this exclusion saw it as an instrument to exclude "sexual perverts" and others who "because of eccentric behavior, defective judgment, or abnormal impulses are in repeated conflict with social customs and constituted authorities."'5 Three were debarred for this constitutional psychopathic inferiority in 1917, and dozens per year after that (see Appendix 4). Some but probably not all of those deported or debarred were "sex perverts" like Ludwig W., people excluded because of their sexual affinity for those of their own sex.

(b) Regulation of Civilian Contact with Soldiers

The evolution of federal immigration law followed the same pattern as state and local law: all focused strongly and consistently on female

152. See Ludwig W., INS File No. 53989/31. 153. S. Rep. No. 64-352, at 4-5 (1916); see S. Rep. No. 63-355, at 5 (1914). 154. In re LaRochelle, 11 1. & N. Dec. 436, 440 (B.IA. 1965) (quoting and discussing Public Health Sery., Manual of the Mental Examination of Aliens (1918)).

HeinOnline -- 82 Iowa L. Rev. 1048 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1049 prostitution and white slavery before World War I, but by the war were focusing specifically on other kinds of perversions and degeneracies, including those associated by the medical profession with gender and sexual inversion. Federal military policy followed that same pattern during World War I, although it would not be so thoroughly medicalized as immigration policy. That war, in fact, generated the most dramatic intersection between the medicalized discourse of inversion and degeneracy and government policy in the period before 1921. During World War I, Congress enacted several laws to regulate indecent activity in military-training zones. The Act of July 9, 1918 (amending the original Act of May 18, 1917) provided: During the present emergency, it shall be unlawful within such reasonable distance of any military camp, station, fort, post, canton, training or mobilization place which the Secretary of War... shall designate and publish in general orders or bulletins to engage in prostitution or to aid and abet prostitution, or to procure or solicit for the purposes of prostitution, or to keep or set up a house of ill fame, , or boarding house, or to receive any person for the purpose of lewdness, assignation or prostitution into any vehicle, conveyance, place, structure, or building ....55 Although this law was obviously targeted at female prostitution, the most celebrated prosecution under it was for male sexual perversion, United States v. Kent." 6 The Reverend Samuel Kent was an Episcopalian priest and YMCA Chaplain in Newport, Rhode Island, the home of the Newport Naval Training Station. He was a major target of a degeneracy investigation conducted in 1919 by Ervin Arnold, a former undercover police officer for towns in Connecticut in the 1910s and a man who asserted to all who would listen that he had "the power of detecting sexual degeneracy at sight." Based upon Arnold's reports that many of the seamen were inverts and that the Newport YMCA was an invert hangout, Dr. Erastus Hudson and the commandant of the Naval Training Station authorized Arnold to conduct similar investigations for the Navy in March 1919. After a Court of Inquiry assembled evidence against a couple of dozen sailors, Arnold and Hudson were authorized by Assistant Secretary of Navy Franklin Roosevelt to expand the investigation to the surrounding community. Arnold already suspected Kent, the YMCA Chaplain, of degeneracy, on the grounds that he allowed inverts to congregate at the YMCA, was affectionate with

155. Act ofJuly 9, 1918, 40 Stat. 886. 156. Indictment No. 565 (IL.Dist. Ct. 1920). The account in the text of the Kent case and the Newport witch hunt that preceded it are drawn from Lawrence R. Murphy, Perverts by Official Order. The Campaign Against Homosexuals by the United States Navy (1988). For a briefer account, see also George Chauncey, Jr., Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War I Era, in Hidden From History: Reclaiming the Gay and Lesbian Past, supra note 48, at 294.

HeinOnline -- 82 Iowa L. Rev. 1049 1996-1997 1050 82 IOWA LAWREVIEW [1997] hospitalized sailors, and was generally "effeminate." Several of Arnold's (male) undercover agents befriended Kent, taking car rides with him and accepting sleepovers at his apartment. Some operatives testified that Kent fondled their genitals, proposed various "perverted" acts, and performed oral sex on them. Together with other suspects, Reverend Kent was arrested in July 1919 and indicted under Rhode Island law as a "lewd and wanton" person. He and Ernest Vernon appeared before state Judge Hugh Baker for a bench trial in August. Three operatives claimed to have accepted oral sex from Kent. Because the operatives had willingly participated in any sexual intercourse that allegedly occurred, they were accomplices whose testimony needed corroboration to obtain a conviction. Judge Baker acquitted both defendants. Under pressure from the Navy, the Department of'Justice then re-indicted Reverend Kent under the 1918 statute, alleging that he received sailors "for the purpose of lewdness" within a "reasonable distance of [the] military... station" in Newport. The second trial, before a federal jury rather than a state judge, was largely a replay of the first. Kent denied the allegations and introduced a string of public figures who attested to his respectability. The argument was that a man of Kent's rectitude respected by other rectitudinous men could not be a degenerate, for he had none of the stigmata. The defense attorney lampooned the operatives on cross- examination with the irony that, according to their accounts, they had engaged in lewd conduct; it was the accusers and not the defendant who were degenerate. The jury took only a few hours to acquit.

(c) Exclusion of "Degenerates"from Military Service

The Newport Naval investigations reflected uncertain moves by federal officials to expunge degenerates from the armed forces at the same time the Immigration Service was debarring them from entering the country and local police were trying to clear them off city streets. Before Reverend Kent was charged, a Naval Court of Inquiry in March 1919 had produced a record detailing the subculture of "fairies" Arnold's investigators had flushed out among servicemen stationed at Newport. 57 The "gang of punks," as they were called, included Frank ("Speedy") Dye, William A. ("Salome") Hughes, Samuel ("Kitty") Rogers, David ("Beckie") Goldstein, Frederick ("Theda Bara") Hoage, Elmo ("Ruth") Gianelloni, and at least fourteen others.58 One cooperating witness had this to say about "Beckie" Rogers:

157. The following is excerpted from the transcript of the Court of Inquiry (Mar. 1919) [hereinafter 1919 Court of Inquiry Transcript]. Other quotes from the record can be found in Murphy, suprra note 156. The complete transcript can be found in the National Archives, Suitland, Md., Record Group 125, Records of Proceedings of Courts of Inquiry, Boards of Investigation, and Boards of Inquest, No. 10821-1. 158. See 1919 Court of Inquiry Transcript, supra note 157, at 35, 37 (with the nicknames); id. at 409-13 (without the nicknames).

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I know him to be a member of the coterie of so-called moral degenerates whose pasttime and pleasure is given to lewd purposes. He is suspected of being a trafficker in the cocaine trade. There has been a number of fellows about the Naval Hospital of effeminiate characters. I looked into the crowd to see what kind of fellows they were and found that they were perverts.... I was shown pictures of these fellows with so-called "seagoing" men, embracing each other and in compromising postures.... Most of the accused seamen were established as "inverts," defined as someone who "is extremely effeminate and does not care for the opposite sex," that is, "who is morally degenerated." '5, The testimony, including that of accused seamen turning on one another, described in vivid detail the subculture of inversion at Newport and encapsulated the understanding of sexual inversion held by both the inverts and the investigators. The subculture was organized around the seeking and rendering of sexual and social pleasure by "fairies" and "pogues," also known as "queers," who saw themselves as "sissified" or "effeminate persons." The fairies were presented as men who inverted their gender roles, 'just classifying themselves as women."'o They not only took on women's names, but also dressed and made themselves up as women, walked and minced in girlish ways, warmly embraced one another in public, and played the woman's role in sex as the person in whom the male penis is inserted .61 A favorite social activity was "drags," or "parties where the different men dressed in female attire and offered themselves in the same manner which women do."' 62 If the fairies of Newport were feminized men, they were feminized in a particularly disapproved (i.e., degenerate) way, socializing more like prostitutes than like nice, middle- class girls. The gang regularly hung out at the Newport YMCA, soliciting "trade," or "straight" men who would allow the fairies to perform oral sex on them.' 63 Sometimes trade involved monetary consideration. The Newport investigators reported that the fairies engaged in promiscuous perversions, "loving up" and offering fellation to everyone in sight-not only local trade and the decoy cops, but also visiting sailors and female impersonators.

159. Id. at 268-69; see also id. at 125, 398 ("moral degenerates"). The accused were also called "moral perverts," id. at 270, 300, or simply "perverts," id. at 70. 160. Id. at 206. 161. The transcript reveals that most in the subculture considered fairies as those who performed oral sex, i.e., "cocksuckers," id. at 63, 272, 283, 359, while "pogues" (or "punks") were the recipients of anal sex. See id. at 3, 34, 46-47, 57-58, 69-72, 120, 175. Some used the term "fairie" to include both "cocksuckers and pogues." Id. at 175, 178. Everyone seemed to use the term "queer" to include "either a pogue or a cocksucker." Id. at 63. 162. Id. at 375. 163. "A straight person must .. .not reciprocate in any way." 1919 Court of Inquiry Transcript, supra note 157, at 269.

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The fairies of Newport were the summum malum of American turn-of- the-century anxieties about gender and sex. Although the formal charges against them were for "sodomy" and "scandalous conduct," the regulatory community was mostly electrified by the fairies' status as "moral degenerates" who committed the triple offense of abandoning their male role, shedding inhibitions about sex, and aggressively soliciting normal men to join in their perversion. Needless to say, most of those investigated were dishonorably discharged and jailed; several were left in prison for long periods of time without pending charges. Several were court- martialed: Speedy Dye was sentenced to twenty years in prison for consensual "oral coition" and "scandalous conduct"; Beckie Goldstein was sentenced to thirty years in prison for the same charges; Theda Bara Hoage and Kitty Rogers were acquitted of these charges but sentenced to ten and fifteen years (respectively) for associated drug charges.Ir" Although all sentences were later reduced, and the charges against Dye, Rogers, and Goldstein overturned entirely (after they had served two years in prison), the sentences strike one as harsh punishment for entirely consensual sexual activity. The Newport experience and its aftermath can be considered the point at which the United States formally adopted the outlines of a policy excluding "sodomists" and "sexual inverts" from its armed services.'6 A starting point involved clarification of military sodomy law along the lines adopted in the states by 1921. The Articles of War of 1916, the law governing court-martials, prohibited only "assault with intent to commit sodomy," but not sodomy itself t " Moreover, the 1917 Manual for Courts- Martial limited sodomy to its common-law definition: "Penetration of the mouth of the person does not constitute this offense. " '67 These details were easily fixed. By the Articles of War Congress enacted in 1920, sodomy was included as an offense among the "miscellaneous crimes and ' offenses." i" The 1921 Manual for Courts-Martial, moreover, redefined sodomy to include oral sex.' Once sodomy was officially a military as well as civilian crime, the Army formally excluded "sodomists" from entering military service, so as to avoid the Newport experience. The regulation actually adopted, however, reflected medical degeneracy theory more than old-fashioned sodomy

164. See Murphy, supra note 156, at 63-64. 165. The Newport experience was hardly the first time the armed services had excluded sodomists, however. During the American Revolution, Lieutenant Gotthold Frederrick Enslin was court-martialed for sodomy, see Randy Shilts, Conduct Unbecoming- Lesbians and Gay Men in the U.S. Military-Vietnam to the Persian Gulf 11-12 (1993), and in 1918 the Army cooperated with the San Francisco police to raid a club frequented by soldiers at that city's Presidio. 166. The Articles of War of 1916, art. 93, 39 Stat. 619, 650-70. 167. U.S., Manual for Courts-Martial 443 (1917). 168. Act of June 4, 1920, art. 93, 41 Stat. 787 ("Miscellaneous crimes and offenses"). 169. U.S., Manual for Courts-Martial 443 (1921).

HeinOnline -- 82 Iowa L. Rev. 1052 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1053 revulsion, again an echo of the Newport experience. Army Regulation 40- 105,'70 issued in 1921, established medically-based exclusions from military service that paralleled the medically-based exclusions from entry into the country that had been developed by the Immigration Service in the 1910s. The regulation, naturally, excluded men who were considered "degenerate" and therefore unfit for service. The "stigmata of degeneracy," according to the regulation, included anatomically "degenerate physique," namely, the "general body conformation of the opposite sex, with sloping narrow shoulders, broad hips, excessive pectoral and pubic adipose deposits, with lack of masculine hirsute and muscular markings."' "Functional" stigmata included "moral delinquencies, such as willfulness, deceitfulness, indecency, . . . sexual perversions." The regulation also excluded recruits who showed signs of "constitutional psychopathic state," including "sexual psychopathy," which made them "incapable of attaining a satisfactory adjustment to the average environment of civilized society."72 The exclusionary standards reflected American medical learning at the time: sexually nonconforming men suffered from congenital physical and mental defects that not only set them apart from other men, but assured their "constitutional inferiority," to use a term deployed by both the Army and the Immigration Service. A subcommittee of the Senate Naval Affairs Committee signaled congressional support for an explicitly exclusionary policy. Assembled to expose abuses in the Newport "sting" operation, the subcommttee issued a report that condemned the investigators' methods but endorsed their exclusionary aim. Rather than corrupting innocent boys through entrapment schemes, the Committee recommended "arbitary wholesale discharge" of any and all "suspected perverts" and the "arbitrary running out of town" of "every suspected civilian pervert" as well. "[I]f perversion is known or believed to exist in the Navy, even the suspicion of such a condition should immediately lead to the undesirable discharge of the accused."'7 By 1921, therefore, there was a consensus in Washington, D.C. that degenerates and sexual perverts could be expelled as well as excluded from the armed forces.

II. THE HOMOSEXUALJOINS THE SODOMIST AND THE INVERT AS A REGULATORY OBJECT, 1921 TO 1946 By 1921, the invert-the person who took on the gender characteris- tics and sexual role of the opposite sex-was not just a medical

170. Medical Dep't, War Dep't, Army Regulation No. 40-105, Standards of Physical Examination for Entrance into the Regular Army, National Guard, and Organized Reserves (1921). 171. Id. § XX, 93(a)-(b). 172. 1& § XX, 93. 173. U.S. Senate Comm. on Naval Affairs, 67th Cong., Alleged Immoral Conditions at Newport (R.I.) Naval Training Station 35-36 (1921) [hereinafter 1921 Senate Report].

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phenomenon but also an increasingly deployed regulatory category."4 Law and society continued to be interested in inverts after 1921, but the social understanding of same-sex intimacy was undergoing a second major shift. If the first shift was from the sinful sodomite to the degenerate invert, the second was from the degenerate invert to the psychopathic homosexual. Like the first shift, the second came after medical discourse had reached new conclusions about people attracted to those of their own sex. Sigmund Freud was the leading conceptualizer. Rejecting Krafft-Ebing's theory of the congenital invert, F-eud, especially as interpreted in America, argued that the homosexual was the failed product of an easily derailed psychosexual development. If Freud was right, the homosexual could be considered more of a social threat than the invert: while the former challenged gender and sex roles, the latter was sexually out of control and even predatory. An America that was focusing seriously on child and adolescent sexuality, as the country was as early as the 1890s and early 1900s, was an America ready for Freud. The homosexual as predatory child molester became a new regulatory category in the decades after 1921. By World War II, the homosexual had displaced the prostitute as the most serious challenge to middle-American ideas about gender and sex. This part of the Article develops the foregoing thesis along the following lines. The first Section sets forth the Freudian theory and suggests that it was particularly attractive to evolving American thought about issues of same-sex intimacy. Freudian theory helps complete the story of the Newport investigations, for example. The next Section suggests that, once crime-against-nature laws were liberated from their connection with sodomy (anal sex), they could be and were deployed as part of what became a national campaign to use the criminal law to prevent adult disruption of "normal" childhood and adolescent sexual development. The final Section traces the elaboration of this new regulatory category through local, state, and federal laws seeking to suppress public expressions of sexual deviance. The culminating discussion draws from Allan B6rub6's account of gay people in World War II, to show how the new sexuality- based exclusions from the armed forces combined themes of disgusting sodomy, gender inversion, and uncontrolled sexuality to help create "the homosexual" himself.

174. Note an important caveat. The term "invert" appeared in no statute adopted before 1921, and its informal invocation by police, municipal courts, local censors, immigration doctors and agents, military investigators and boards may not have penetrated deeply into the nation's law enforcement system. Moreover, to the extent that the legal system was interested in sexual degeneracy, its focus in 1921 remained overwhelmingly on the prostitute and the legal categories associated with regulating her activities: disorderly or bawdy houses, public lewdness and solicitation, vagrancy, corruption or enticement of minors, white slavery, and so forth.

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A. The Newport Scandals and the Emergence of the Homosexual as a Regulatory Category The prosecution of the fairies of Newport was only the beginning of the Newport scandals. After Samuel Kent's acquittal, the Episcopal Bishop of Rhode Island, James DeWolf Perry, complained to the Secretary of the Navy, then to President Wilson, and finally to Congress, Abetted by the press, churches and community groups in Newport, and key members of Congress, he was able to obtain a Court of Inquiry for a reverse witch hunt.1 75 Echoing the trial strategy of Kent's attorneys, the Bishop put the investigators under the sexuality microscope. According to his testimony, Lieutenant Erastus Hudson, the officer who authorized the investigation, "ordered the men to solicit, to have immoral relations with other men for the sake of getting evidence."1 76 Tie newspapers put the central charge this way: "That young men, many of them boys, in the naval service have been compelled under the specific orders of officers attached to the office of naval intelligence to commit vile and nameless crimes on the persons 1of others in the navy service or have suggested these acts be practiced." " These charges, denied by Hudson and Arnold, were swept under the rug by the Court of Inquiry. Under pressure from the Rhode Island press and the Newport Council of Ministers, and sniffing partisan blood, a subcommittee of the Senate Naval Affairs Committee pursued the investigation and in 1921 condemned the undercover activities as "deplorable, disgraceful, and unnatural."'78 It is not hard to understand why Hudson and Arnold would have allowed, and their operatives would have submitted to, oral sex from the targets. According to their understanding of degeneracy theory, Hudson and Arnold might have assumed that their operatives could maintain their gender integrity in oral sex so long as they were playing the man's role, the inserter, and the degenerate was playing the woman's role, the 7 insertee. The operatives certainly saw it this way.1 9 Insofar as going all

175. The following account is taken from the Record of Proceedings on a Court of Inquiry Convened at The U.S. Naval Training Station, Newport, Rhode Island, (Jan. 22, 1920) (and lasting almost all the year) [hereinafter 1920 Court of Inquiry Transcript]. The complete transcript can be found in the National Archives, Suitland, Md., Record Group 125, Records of Proceedings of Courts of Inquiry, Boards of Investigation, and Boards of Inquest, No. 10821-1. The 1920 Court of Inquiry is thoroughly examined in Murphy, supra note 156. 176. 1920 Court of Inquiry Transcript, supra note 175, at 503; see id. at 503.07 (evincing a great deal of vagueness on the part of the witness as to exactly what Hudson admitted to telling the operatives). 177. Id. at 741. 178. 1921 Senate Report, supra note 173, at 129. 179. They were uniformly unwilling to engage in "soul kisses" (the target's tongue in the operative's mouth), to fellate the other man (the target's penis in the operative's mouth), or even to permit intercrural sex (the target's penis between the operative's legs): these activities violated the virile man's gender role, by making him an insertee and giver of pleasure. The operatives were willing to ejaculate as a result of being fellated or manually masturbated: these activities were consistent with the virile man's gender role, as he was the inserter and receiver

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the way to was the best method of obtaining evidence, the order-following operatives felt their uncomfortableness was worthwhile. Why was everyone else so scandalized? The most obvious answer looks backward: even if they were not degenerates, the operatives were participating in sodomy, and Hudson and Arnold-the government-should not have been encouraging unnatural and unlawful behavior. The Senate Naval Affairs Subcommittee, for example, condemned the Navy's "allowing his [the operative's] body to be polluted-a crime perpretrated upon him which he will remember and regret to his dying day."'' This explanation rings true insofar as it maintains that traditional objections to same-sex intimacy retained most of their power, and that the operatives were victims of heterogeneous perceptions about acceptable sexual practices& But this explanation is not without its problems. A minor one is legalistic: neither the operatives nor the targets were clearly violating the law. As noted above, military law did not explicitly make completed (as opposed to attempted) sodomy a crime, and sodomy was authoritatively defined to exclude oral sex; even Rhode Island's sodomy law, to the extent it was applicable, was not interpreted to include oral sex until 1962. While it is true that everyone involved in the Newport Naval scandal assumed that the investigators and their targets were engaged in illegal sodomy, and not just lewd conduct as charged in the state prosecution, that was not strictly true as a matter of military law in 1919, a gap rectified by Congress and the authors of the Manual for Courts-Martial in 1920-21.181 A more serious problem with the traditionalist explanation is that it is insufficiently complex: those who objected to the operatives' cooperation in oral sex were not just referring to a policy of suppressing unnatural and unmentionable acts, but were contemplating the need for a policy dealing with natural but dangerous feelings of sexuality that are present-or can be nurtured-in all of us. Consider this account of one of the operatives who gathered evidence about Theda Bara Hoage: "I had never had any dealings with a fairy before. He then started to rub my chest and belly and play with my cock. Human nature then took a hand and of course like any 8 2 other fellow let him go to the limit.' 1 Charles Zipf, the most candid of the operatives at the 1920 Court of Inquiry, explained why ejaculation naturally followed from his investigative duties: "'A great deal of that was involuntary in as much as the man placing his hand on my penis would cause an and subsequent emission. That was uncontrolled on my part.""" 3 This and similar evidence scattered through the hearing'"

of pleasure. In short, these men did not become degenerate, for they played the man's role. 180. 1921 Senate Report, supra note 173, at 30. 181. See supra notes 167-69 and accompanying text. 182. 1920 Court of Inquiry Transcript, supra note 175, at 1360. 183. Murphy, supra note 156, at 222 (quoting Charles Zipf). 184. See also 1920 Court of Inquiry Transcript, supra note 175, at 1956 (report of investigator on an outing with Kent: "Put his arms around me, kissed me, began rubbing my

HeinOnline -- 82 Iowa L. Rev. 1056 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1057 made explicit what was already clear to many middle-class Americans: oral sex was "natural" for human beings, and "straight" men could enjoy it just as "fairies" or degenerates could. Was there cause for worry about this? The Council of Ministers thought so; their letter to the President emphasized that "[t]he people of the United States are entitled to the assurance that hereafter no boy who enlists in the Navy will be consigned to a career of vice." The Senate subcommittee thought so; its report was shocked that "boys were lending their physical bodies for immoral purposes.... They went forth into Newport and vicinity as a sacrifice to, and the prey of every degenerate and sexual pervert, male and female, in the city and at the training station." '1 One implication of these concerns was that "innocent boy[s]" were not only being "polluted," but "perverted" by their exposure to "preying" degenerates and sexual inverts. The Senate subcommittee's concession, at the end of its outraged report, that perversion was a "disease" suggests the possibility that it was a "contagious" disease of the mind, one that could be stimulated in boys "preyed" upon by older inverts. Even Dr. Hudson, the only medic involved in the affair, worried about this possibility. A body of literature accessible to a popular as well as medical audience in 1919 maintained that this should have been a concern, notwithstanding Dr. Hudson's lame excuse that the literature nowhere mentioned contagion by "any man in the status of an investigator or spotter." 18r The key author in this body of literature was Sigmund Freud, whose thinking about sexuality affords a more complex understanding of the Newport scandals. His writings about sexual development not only rejected old-fashioned natural law theory, but offered a different medical theory and vocabulary that partially superseded the degeneracy theory of Krafft- Ebing.'5 7 Freud's most important contribution was to develop a theory which made sexuality a critical part of a person's identity formation. According to Freud, human children are sexually alert from an early age and are bisexual in their impulses. The great developmental struggle of childhood is the resolution of the now-famed Oedipus complex. In a "normal" sexual development, boys learn to escape their sexual feelings for their mothers and to identify sexually with their once-hated rivals, their fathers. Girls learn to identify with their mothers and to accept sexual

penis ....Nature took a hand and I discharged."). 185. 1921 Senate Report, supra note 173, at 30. The subcommittee also raised the question suggested by the fact that no one turned down the assignment to be an invert decoy. "One might argue that each boy who accepted the assignment was himself a pervert." The subcommittee then dismissed the concern; the boys were simply "ignorant" and prone to follow orders. See id. 186. Murphy, supra note 156, at 212. 187. See Sigmund Freud, The Psychogenesis of a Case of Homosexuality in a Woman (1920); Sigmund Freud, Three Essays on Sexuality (1905) [hereinafter Freud, Three Essays); see also Nancy Chodorow, Femininities, Masculinities, Sexualities. (1994); 1 Hale, supra note 52, at 164-72 (elements of Freud's theory anticipated by prior work, but theory still substantially original).

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overtures from men. Like any other dynamic, the movement from bisexual potential to heterosexuality is fraught with pitfalls, for almost anything can, and does, disrupt the development. When that happens, the individual develops in "perverse" ways, and her or his "perversion" could affect the entire personality. Freud was the first to explicate a sophisticated theory of sexual orientation.'B In his understanding of "normal" sexual orientation, the sexual object is an adult human of the opposite sex, with the sexual aim being vaginal intercourse. Any sexual activity which either "extends, in an anatomical sense, beyond the regions of the body that are designed for sexual union, or lingers over the intermediate relations to the sexual object which should normally be traversed rapidly on the path towards the final sexual aim" reflected a "perverted" sexual orientation.8 9 According to Freud, homosexuality is the most common perversion. He challenged Krafft-Ebing's view that homosexuality is a result of congenital degeneracy. Instead, .homosexuality is an acquired trait, the result of arrested development, the failure of the person to overcome the Oedipus complex or otherwise to mature to heterosexuality. Many of Freud's ideas were anticipated by American psychiatrists such as Stanley Hall (who arranged for Freud to speak in the United States in 1909) and James Putnam, both of whom espoused Freud's theories to an increasingly interested professional and popular audience in the 1910s.'" The Americans, however, emphasized features of Freud's theories that suited them, such as the functional (curable) rather than hereditary (incurable) causes of perversion, and deemphasized other features, such as Freud's relatively pro-sex hedonism. Psychoanalytic theory, whether derived from Freud or his American allies, provides further insight into the Newport phenomenon. For one thing, it captures the operational thrust of the investigation itself. To say that the investigation targeted sodomites is wrong, as the investigators themselves committed sodomy as popularly (even if not in 1919 military law) understood. It is also not quite right to say that the investigation targeted only fairies or inverts, as the targets included men who played traditional male roles with the fairies. For example, Thomas Brunelle was among those court-martialed for sodomy and scandalous behavior, even though the evidence suggested that he was not a fairie. Instead, he was "Salome" Hughes' "husband," a penis inserter, but someone sexually attracted to other men. Like the investigators, he was not an invert who took on gender characteristics of women, but he enjoyed fellatio as a sexual aim. Unlike the investigators, he was a "pervert" or "homosexual" whose (Freudian) sexual object was other men. That alone allowed regulators to classify him as an unfit sailor.

188. See Freud, Three Essays, supra note 187, at 135-37. 189. See id. at 150. 190. See I Hale, supra note 52, at 362.

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Psychoanalytic theory also provided cogent critiques of the investigation. Freud himself would have objected that the Newport investigation was too punitive. Rather than putting perverts in the brig, the government should have been treating them for a remediable condition, as the Senate subcommittee itself conceded.' 9' Freud's American following added this objection: by inducing young decoys ("boys" as they were called by the ministers, the press, and the Senate subcommittee) to entrap the perverted targets, the government was playing with fire, taking a chance that latent of the investigators might be awakened by flirting and having sex with homosexuals.

B. The Homosexual as a Perverted Child Molester and Sexual Psychopath Estelle Freedman has argued that American regulation of sexuality saw a shift after World War I, from a focus on female corruption to a focus on male sexual aggression. 92 As a matter of law enforcement, this meant a shift from victimless prostitution to crimes by men against women and children: rape, intercourse with minors (statutory rape), white slavery, enticement of girls into immoral practices, corruption of minors, and nonconsensual sodomy. Although the legal developments surveyed in this Article suggest a number of friendly amendments to Freedman's chronology, her overall thesis provides an insightful way to analyze developments in American criminal law for the generation after World War I. Regulatory concern with gender-bending inverts hardly disappeared, but it came to be overshadowed by the concern with the "predatory homosexual," who was synonymous with the "sexual psychopath" and, for many law enforcement officers, the "child molester." Again, law followed social anxiety, and by the end of the surveyed period, law provided more draconian sanctions against same-sex intimacy that was considered typically predatory.

1. Increasing Concern About the Sexually Aggressive Male The arrest data for St. Louis, compiled in Appendix 2D to this Article, suggest the hypothesis that Freedman's regulatory shift from female prostitution to male sexual aggression began before the United States entered World War I. During the period 1910 to 1915, arrests of women for prostitution fell off, and coercive sex crimes by men became more prominent in the statistics: rape arrests doubled, sodomy arrests went up tenfold, and men started being arrested in significant numbers for prostitution-related offenses, including white slavery (a federal crime after 1910), enticing girls into immoral activities, and frequenting bawdy houses. When arrests for female prostitution zoomed to new records during the

191. "Perversion is perhaps not a crime in one sense, but a disease that should be properly treated in a hospital." 1921 Senate Report, supra note 173, at 36. 192. See Estelle B. Freedman, "Uncontrolled Desires": The Response to the Sexual Psychopath, 1920-1960, J. Am. Hist., June 1987, at 83.

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war, they were accompanied for the first time by almost as many prostitution-related arrests for men; at the same time rape arrests were sharply rising. Prostitution arrests fluctuated wildly between 1921 and 1946, but arrests for rape and sodomy steadily increased. St. Louis and other cities in the Midwest remained more interested in arresting women for prostitution than did coastal cities such as New York, Baltimore, Philadelphia, San Francisco, and Los Angeles, where prostitution-related arrests fell off sharply after World War I. But, like St. Louis, the coastal cities'witnessed steady increases in arrests for rape and sodomy after the war. New York's arrests for degeneracy showed the same general trend, reaching a thousand or more people a year in the early days of the Depression. As before, the South represents a special case. Generally, trends that can be detected in major cities of the Midwest, East, and West Coast for the 1910s did not show up in southern cities until the 1930s. Thus, Richmond arrests for buggery did not reach double digits until 1930, and arrests for sodomy did not become regular in the District of Columbia until 1935. The Florida Attorney General's report of sodomy arrests in the state's eight largest counties found an average of only sixteen arrests for the two-year period 1929 to 1930, a tiny figure which grew fivefold to eighty for the period 1945 to 1946. Freedman maintains that national interest in sex crimes of aggression reached an apex in the period 1935 to 1940, and that crimes against children riveted the country's attention then. The best support for the first hypothesis comes from Michigan's incarceration data, which show overall large increases in incarcerations for rape and sodomy after 1900 and, more significantly, a big and progressive jump in the percentage of commitments in the sex crime categories after 1934. (See Appendix 2F.) Arrest figures for Dade County (Miami), Florida also support the hypothesis. (See Appendix 2E.) My primary emendation of Freedman's thesis is that American criminal law's anxiety about children's sexuality is marked well before 1935, though that year may well be the beginning of a craze unlike what came before. It appears, for example, that sodomy laws were being redeployed in the big cities against child molestation and rape-like sex as early as the 1920s, if not before. In California, almost ninety percent of the reported sodomy and oral copulation cases between 1920 and 1946 involved either rape of an adult or alleged abuse of a child or adoles- cent.'93 In New York, the Mayor's Committee for the Study of Sex Offenses reported that ninety-one percent of the sodomy arrests during the 1930s involved oral or anal sex with boys under the age of eighteen years.'94 It is doubtful that the figures for the 1930s were dramatically

193. There are 36 reported cases: 8 involve rape, 25 involved children and adolescents (18 boys, 7 girls), and 3 involved consensual adult male sex. 194. See Report of the Mayor's Committee for the Study of Sex Offenses 66 (1940) [hereinafter Mayor's Committee Report].

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different from those of the 1920s, and it might be speculated that escalating sodomy statistics reflected an enforcement focus on man-boy sex. It is not clear that more "sexual offenses" were being committed against minors in the 1920s and 1930s, but the law was recognizing and investigating more of them. In the first half of the new century, many states adopted new carnal abuse and child molestation statutes that explicitly applied to men's molesting of boys as well as girls. Generally, the big population states were the first to act, starting in the very first decade of the century. In 1907, Illinois made it a crime to take "any immoral, improper or indecent liberties with any child of either sex, under the age of fifteen years, with the intent of arousing, appealing to or gratifying the lusts, passions or sexual desires" of either person or to commit a "lewd and lascivious act" upon the child. 95 In 1915, Illinois expanded the original statutory idea to criminalize lewd and lascivious conduct in the presence of a child."" California in 1901 made it a felony punishable by not less than one year in prison for an adult to "commit any lewd or lascivious act," other than sodomy or oral copulation, with a child under fourteen years old. 97 In 1937, California expanded the statute to include sodomy and oral copulation and to set the sentence at one year to life in prison for "exciting lust of child under age of fourteen," as the statute was titled.9 s Also in 1937, California adapted a 1915 law to create the new crime of contributing to the delinquency of a minor by exciting his or her sexuality through "lewd or lascivious" conduct with the minor. 99 Following the early leads of Illinois and California, New York created a new felony for an adult who "carnally abuses the body, or indulges in any indecent or immoral practices with the sexual parts or organs of a child under the age of ten years," 29 and a misdemeanor for an adult who carnally abuses a child aged ten to sixteen. 201 When Michigan compre- hensively revised its penal code in 1931, the state augmented its 1887 law prohibiting men from taking "indecent liberties with a female child" with a law against "males debauching morals of males under fifteen years of age."20 2 Most of the urbanized states of the Midwest and the East and

,195. See Act of May 17, 1907, 1907 Ill.Laws 266 (codified at Ill. Ann. Stat. § 109 (West 1935)) (repealed 1961); People v. Smith, 101 N.E. 957 (Ill.1913) (construing 1907 law to criminalize oral sex with girl even though that was not a crime against nature in Illinois). 196. SeeAct ofJune 23, 1915, 1915 Ill.Laws 368 (codified at Ill. Crim. Code § 100). 197. See ch. 201, § 1, 1901 Cal. Stat. 630 (codified at Cal. Penal Code § 288). 198. See ch. 545, § 1, 1937 Cal. Stat. 1562, amending Cal. Penal Code § 288. Four years later, the state required a judge to obtain a psychiatric report as to the mental condition of the defendant before he could receive a suspended sentence. See ch. 1201, § 1, 1941 Cal. Stat. 2972 (codified at Cal. Penal Code § 288.1). 199. See ch. 369, § 702, 1937 Cal. Stat. 1033 (codified at Cal. Welf. & Inst. Code § 702). The law was adapted from ch. 631, § 1, 1915 Cal. Stat. 1246, as amended by ch. 504, § 1, 1921 Cal. Star. 773. 200. Ch. 383, 1927 N.Y. Laws (codified at N.Y. Penal Law § 483-a (Consol. 1927)). 201. See ch. 684, 1929 N.Y. Laws (codified at N.Y. Penal Law § 483-b (Consol. 1929)). 202. No. 328, § 340, 1931 Mich. Pub. Acts, augmentingNo. 153, § 1, 1887 Mich. Pub. Acts,

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23 West Coasts followed this pattern. " Typically, southern and noncoastal western states did not adopt such statutes until World War II and afterward.0 4 In contrast with the pre-1900 obsession with regulating prostitution, cross-dressing, and obscenity, this new generation of laws focused regulatory concern on the threat of male aggression to minors' sexuality. The laws were significant in expanding the definition of beyond vaginal intercourse (covered by statutory rape and seduction laws since the nineteenth century in most states). The new carnal abuse laws included oral and anal intercourse, sexual fondling, masturbation, and any other "lewd or lascivious" act or "indecent" liberty. They protected boys as well as girls against male predation and, therefore, explicitly regulated new and sometimes nongenital forms of homosexual expression.

2. The Homosexual as Sexual Psychopath The statutory and law enforcement data recounted above document a sea change in American thinking about sex offenses.20 5 Freudian and other psychoanalytic theories rhetorically framed this shift. If Freud was right that sexualized children engage in a developmental process leading toward "normal" sexual maturity, adult interaction with children had to be viewed with greater care. Because children are sexualized all over their

recodified as Mich. Crim. Code § 336 (1931). 203. See, e.g, 1905 Colo. Sess. Laws 181 (criminalizing the taking of "indecent and improper liberties" with child under age sixteen). 204. See Act of June 9, 1948, §§ 101, 103, 62 Stat. 347 (criminalizing "indecent exposure" to and taking "indecent liberties" with children in the District of Columbia); No. 397, 1955 Ala. Acts 932 (unlawful to take indecent liberties with "child of either sex" under 16 or to "commit any lewd or lascivious act" upon such child); ch. 20, §§ 2-3, 1965 Ariz. Sess. Laws (new crimes for "lewd or lascivious" act on child under age 15 and for child molestation); ch. 81, 1947 Del. Laws (amending crime of "lewdly or lasciviously" playing with females under age 16 to apply to minors of either sex); § 1, 1951 Fla. Laws ch. 26,580 (criminalizing the fondling a boy under age 14 in "a lewd, lascivious or indecent manner"); § 2, 1950 Ga. Laws 387 (criminalizing immoral or indecent acts on or in presence of child unedr age 14); 1949 Idaho Sess. Laws 455 (criminalizing lewd and lascivious acts with child under age 16); 1948 Ky. Acts 36 (criminalizing indecent or immoral practices with child under age 15); 1942 La. Acts 137 (criminalizing lewd or lascivious act on or in presence of child under age 17); id. (criminalizing the enticing of a child under age 17 to perform any sexually immoral act or to visit a place where obscene material is located); 1949 Mo. Laws 249 (criminalizing child molestation); 1955 N.C. Sess. Laws 764 (criminalizing assaults on children by sexual psychopaths and perverts); 1943 Tex. Gen. Laws 194 (criminalizing use of one's sexual parts in a lewd and lascivious manner by a minor). Some southern states made "carnal abuse" of minor females a crime around 1900 but never expanded the crime to include abuse of minor males until the comprehensive criminal code revisions of the 1970s and 1980s. See e.g., 1889 Ark. Acts 10 (codified at Ark. Crim. Law § 2720 (Michie 1921)). 205. The best source on this shift is Freedman, supra note 192. Contemporary conceptualizations along the lines that follow can be found in Norwood East, Sexual Offendens in Mental Abnormality and Crime 177 (1944); Bernard C. Glueck, An Evaluation of the Homosexual Offender, 41 Minn. L. Rev. 187 (1956).

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bodies, any kind of molestation (and not just intercourse) can damage a child's development. Freudian theory supported increased concern about childhood sexuality but was more equivocal about two other features of American thought: the great danger of male aggression and, particularly, of the homosexual pervert. Following Havelock Ellis, Freud emphasized the sexuality of women as much as men and refused to demonize the "homosexual," beyond saying that such a person's "normal" sexual development had been derailed. American doctors in the 1920s combined some features of Freud's thought with entrenched ideas they had elaborated from Krafft-Ebing and the eugenics (antidegeneracy) movement. Dr. Paul Bowers of the Indiana State Prison was typical in his claim, made around 1924, that crime and 2 6 mental defect were strongly interrelated. 1 "General paresis," for example, was a disease of the brain conducing to moral "degeneration," where the paretic "fails to understand and seems entirely oblivious to the 2 7 moral relations that he sustains to society and to his family." 1 "Border- line" personalities were a larger percentage of the problematic classes of society; these included "constitutional inferiors," "psychopaths," and "sex perverts," according to Bowers. 208 These categories were extensions of those doctors had discussed before World War I but became notably popular only after the war. All were then related to pseudo-Freudian ideas about homosexuality. Consider Dr. Bowers's report: Not all expressions of homosexuality are to be regarded as evidence of insanity, yet it may be safely said that the majority of sexual perverts are psychopathic individuals. Sexual perverts of the most disgusting types are found among the psychopaths. Whether these anomalies of the sexual instinct are always congenital or not has not been settled, and it does seem that inverse and perverse sexual habits may be acquired early in life by the association with vicious and depraved individuals. The sexual perverts are at any rate an exceedingly dangerous and demoralizing class which should be permanently isolated to prevent their mingling with others.2 ° Dr. Bowers's idea was widespread in the 1920s: the homosexual was the quintessential psychopath, for he was by Freudian defintion a man whose sexual development had been derailed, rendering him intrinsically perverted. Having rejected Krafft-Ebing's concept that a male invert was

206. See Paul E. Bowers, A Survey of Twenty-Five Hundred Prisoners in the Psychopathic Laboratory at the Indiana State Prison (n.d.). This paper is attached to the Report of the Los Angeles Police Department for Fiscal Year endingJune 30, 1924. 207. Id. at 10. Recall "Paresis Hall," where New York's female impersonators hung out in the 1890s and early twentieth century. 208. See id. at 28. 209. Id. at 33. Dr. Bowers identified the following crimes he associated with perversion: sodomy (about one percent of his prison's admissions), incest (two percent), and rape (almost five percent). See id. at 33-34.

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basically womanish, and perhaps not dangerous, Freud opened the way for his American followers to conceptualize the male homosexual as aggressive. By combining this Freudian idea with previously articulated theories of degeneracy and psychopathy, American doctors and psychiatrists gave "scientific" credibility to the "predatory male homosexual," a man who recruited boys as sexual partners because he was uninhibited by social pressures or domesticating females and was too sick to find mature male companionship. As the foregoing account suggests, there was nothing in either Freud or Krafft-Ebing alone that created this American myth; both of the prior thinkers, for example, believed the invert or pervert normally harmless and for that reason opposed criminalizing his consensual conduct. The predatory homosexual was, instead, a creature of America's evolving attitudes about sexuality. The period during and after World War I witnessed a minor among middle-class Americans, who started having oral sex and sex outside of marriage with much greater frequency. A wave of popular literature, most notably works by Margaret Sanger and Floyd Dell, celebrated the "triumph of recreation over procreation as the goal of sex love." 210 With Freud and Ellis, these writers derided the sex negativity of the Victorian era and asserted that sexuality was a positive and dynamic rather than negative and static life force, to be cultivated and enjoyed rather than repressed and frustrated. Feminists such as Sanger believed these ideas to be liberating for women. Her argument for was that women-and men-ought to be able to develop their sexualities without fear of . Because these controversial ideas exposed the authors to the charge that they were abandoning all sexual restraint, the same authors showed their allegiance to both Freud and the concept of limits by emphasizing "heterosexuality" as normal, and "homosexuality" as perverse sexual orientation.2 1' Also inspired by Freud, these authors abhorred intergenerational sex, both because it violated their new "companionate" ideal of sex and marriage and because it could, literally, "pervert" the child's sexual development that was key to his or her future happiness. The myth of the homosexual as psychopath seeped into and gradually saturated American culture, so naturally it reached prosecutors, legislators, policemen, and judges. An early expression of this ideology, by an Ohio judge in 1922, described "sexual perverts" as "wild ferocious animals."

210. The Sex Problem in Modem Society 59 (John F. McDermott ed., 1931); see Floyd Dell, Love in the Machine Age: A Psychological Study of the Transition from Patriarchal Society (1930); Margaret Sanger, Happiness in Marriage (1926); Sex in Civilization (V.F. Calverton & Samuel D. Schmalhausen eds., 1929). See generally Christina Simmons, Berkshire Women's History Conference, Purity Rejected: The New Sex Freedom of the Twenties (1976). 211. Dell, supra note 210, at 364, for example, charged the Victorians with encouraging homosexuality by repressing normal sexual instincts. "The question is: do we want to train people for... living happily ever after in heterosexual matehood, or for living tormented and frustrated lives of homosexuality, impotence and purposeless ." Id.

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Justifying the relaxation of the traditional rule against allowing evidence of other crimes in a criminal prosecution, the judge said: It is more or less a matter of common knowledge, among those who have made a study of sexual perversion as it manifests itself in human degenerates, that each sexual pervert follows some habitual unnatural method of gratifying his perverted passion. It may be unnatural commerce with one class of beasts or another class of beasts; it may be by one mature male with another mature male; and it may be, which is to-day of too frequent occurrence,212 a dynamic sexual commerce with little boys or little girls. Quoting Morris Ploscowe's treatise on sex offenses, an Oklahoma judge said several decades later: Exposure to the sex deviate may have a decisive and harmful effect upon a child's development of a normal sex life as an adult. Despite their differences of opinion, students of homosexuality seem to agree that exposure during adolescence may be the precipitating factor in the adult development of the homosexual or the Lesbian. The law must make it possible to take effective action against twisted adults who use children and minors as sexual objects. s The global increases in arrests for sodomy as well as sexual crimes against children in the late 1930s directly reflect this new anxiety.

3. New Medicalized Approaches to Discipline the Sexual Psychopath By the foregoing account, the child molester, and especially the homosexual one, was a momentous social danger, but one which might be managed through the new medical wisdom. Accordingly, regulators recognized a key difficulty in the deployment of the criminal law system, illustrated by the following case history presented to New York Mayor Fiorello LaGuardia by his sex crimes study commission in 1940: [D]egenerate practices often date from childhood. An example is Robert Doe, whose homosexual tendencies were linked with anti- social behavior. In his twenty-third year, he came before the Court of General Sessions on a sodomy charge, involving a fifteen-year old boy. The latter also represented a serious behavior situation, resulting partly from an unfavorable social background. The Probation Department's case history traces D's degeneracy to the onset of adolescence. At that time he was in an orphanage where other inmates initiated him into homosexual practices. After his release from the orphanage, he became an idler, refused to work and continued his degenerate practices. Such behavior resulted in his being adjudged delinquent by the Children's Court. He was committed to a correctional institution, where he was an active sex pervert. Subsequently, he escaped from the institution. Apprehended shortly thereafter, he was then

212. Barnett v. State, 135 N.E. 647, 649 (Ohio 1922). 213. Berryman v. State, 283 P.2d 558, 565 n.1 (Okla. Crim. App. 1955).

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placed in an institution. It was subsequent to his discharge therefrom that he was indicted on the sodomy charge. t 4 Himself a victim whose sexuality was corrupted by childhood experiences, Robert Doe not only victimized adolescents but did so repeatedly, because the correctional system kept coughing him up after short detentions, without doing anything about his psychiatric problem. Regulators were dismayed to learn how prosecutors regularly plea bargained even serious felony convictions (rape, sodomy) into low sentences or misdemeanors. In response to this phenomenon, first judges and then legislators experimented with new correctional approaches to the sexual psychopath. Most realized that longer prison sentences were not the solution, especially for the homosexual offender. What could be better designed for reinforcing rather than ameliorating homosexual tendencies than same-sex prisons, which everyone knew were rife with sodomy, rape, and every kind of sexual indecency? A better response was to introduce some kind of rehabilitation into the state response to sexual offenders. The typical approach was for prosecutors to condition a plea bargain, judges to condition probation, and other authorities to condition parole on the defendant's agreement to accept psychiatric counseling. Results of this typical approach were not satisfactory, and a few judges tried drastic measures. Judge Frank Collier of California's Superior Court was disgusted when a repeat gross indecency offender came before him in October 1933. Collier sentenced the defendant to a prison term at San Quentin but suspended the sentence on the condition that the defendant agree to castration (removal of the testes) and then probation. The defendant agreed, and forty-six other convicted sex offenders received the same treatment between 1937 and 1948; the judge was convinced that this procedure "completely cured their unnatural sex desires." 215 Other defendants agreed to treatment in mental hospitals, which deployed profrontal lobotomies (two thousand performed on sex offenders between 1938 and 1946), massive injections of male hormones, electrical shock and other aversion to treat sex offenders. Notwithstanding the unproven results of these ad hoc measures, state legislatures in the next generation expanded upon them in a series of "sexual psychopath" laws.216 The first laws were enacted in Michigan

214. Mayor's Committee Report, supranote 194, at 77. 215. Subcommittee on Sex Crimes, California Assembly Interim Comm. on Judicial Sys. and Judicial Process, Preliminary Report 214-15 (1950). The Subcommittee was less confident than the judge. See id. at 51-52. 216. The laws are collected and described in William N. Eskridge, Jr., PrivacyJurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St. U. L. Rev. 703, 713-16, 825-26 (1997) (Appendix 4). Detailed contemporary accounts are Karl M.Bowman & Bernice Engle, Synopses of Special Sex Psychopath Laws-United States, in California Dep't of Mental Hygiene, Final Report on California Sexual Deviation Research 41 (Mar. 1954) [hereinafter Final Report on California Sexual Deviation Research]; Alan A. Swanson, Sexual Psychopath Statutes: Summary and Analysis, 21 Crim. L. Comments & Abstracts 215 (1960).

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(1935), Illinois (1938), California (1939), and Minnesota (1939).1 The Michigan law created special procedures for identifying people convicted of "disorderly conduct" and other sex offenses, who "appear to be 28 psychopathic, or a sex degenerate" or a "sex pervert." 1 Once identified, the "sex degenerate or pervert" could be committed for an indeterminate sentence in the state mental hospital. In partial contrast, the Illinois statute applied to "persons suffering from a mental disorder... coupled with criminal propensities to the commission of sex offenses." 219 If a person charged with a criminal offense were thought to be a "criminal sexual psychopathic person," the attorney general was authorized to petition the court for a jury trial on that subject. At trial, expert psychiatric evidence as well as the defendant's prior acts and any habitual behavior could be introduced into evidence.20 If adjudged psychopathic, the defendant would be delivered to the Department of Public Safety for treatment "until fully and permanently recovered from such psychopathy."2' In the first ten years of the Illinois law's operation, the only known case of psychopathic recovery involved a thirty-year-old hairdresser who had been charged with committing oral sex on a sixteen-year-old boy. Because he admitted oral sex on other occasions, the defendant was committed as. a sexual psychopath but released four years later after the authorities pronounced his recovery. Only then was he tried for sodomy and placed on probation when he pled guilty. Twenty-four other state legislatures (including all the big city states) and Congress, for the District of Columbia, followed Michigan, Illinois, California, and Minnesota to adopt sexual psychopath laws between 1940 and 19 6 0 .22 The laws epitomized popular beliefs that sex offenders were mentally diseased men who could not control their and who posed a continuous threat to the safety of children. As Dr. Bowers had concluded in the 1920s, "homosexuals" were the quintessential psychopathic personalities; even more than the American Freudians, regulators considered homosexuality virtually synonymous with uninhibited , aggressive promiscuity, and compulsive behavior.224 Sexual psychopath

217. The Minnesota statute was provisionally upheld by the Supreme Court against due process attack in 1940. See Minnesota ex reL Pearson v. Probate Court, 309 U.S. 270 (1940). 218. Nos. 87-88, 1935 Mich. Pub. Acts, amended by No. 196, Mich. Pub. Acts. 219. Ill.Rev. Stat. ch. 38, § 820 (1938). 220. See id. §§ 823-824. 221. Id. § 824. 222. See William H. Haines et al., Commitments Under the Criminal Sexual Psychopath Law in the Criminal Court of Cook County, Illinois 420, 422-23 (1949). 223. See Final Report on California Sexual Deviation Research, supra note 216, at 41; Swanson, supra note 216, at 215. 224. The Immigration Service in the 1940s used the term "psychopath" to describe homosexuals it debarred under the "constitutional psychopathic inferiority" exclusion of the 1917 law. When Congress decided to exclude "homosexuals and sex perverts" from entering the country as immigrants in 1952, doctors in the Public Health Service persuaded the legislators to use the euphemism "persons afflicted with psychopathic personality" to describe

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laws were justified by the threat posed by men with uncontrolled sexual appetites, to minor males as well as females, but the actual application of such laws focused disproportionately upon homosexuals engaging in sex with other adults.2 Note how far the criminal law traveled between 1880 to 1940. During the 1880s, female inverts were occasionally arrested for cross-dressing, and male inverts for indecent exposure and cross-dressing, but the criminal law did not particularly target either group. As the criminal law in urban jurisdictions focused more aggressively on degeneracy in the early twentieth century, sexual inverts like Elvira Mugarietta and Ralph Werther were more likely to be harassed or arrested, but still only for misdemeanors such as cross-dressing or disorderly conduct, which would expose them to a few days in the jail or workhouse. Some but not many were arrested for sodomy in the period around World War I, and problems of proof led to dismissals in the large majority of cases. During the 1940s on the other hand, a male homosexual with an active social life had a good chance of being arrested for sodomy and was likely to spend time in jail for major misdemeanors such as disorderly conduct (New York City), lewd vagrancy (Los Angeles and San Francisco), loitering (New York City, Nashville), indecent exposure (Baltimore, St. Louis), lewd or lascivious conduct (St. Louis), and solicitation (Chicago). 6 In New York City, 112 men were arrested in 1949 for violating the sodomy law, but 931 for violating the disorderly conduct law for degenerate acts, and a whopping 2213 for 7 violating the state's statute prohibiting loitering around public toilets. Although the aggregate numbers were much lower, the pattern was the same in other urban areas. More important, the consequences of arrest and more certain conviction of crimes associated with homosexuality often had tragic collateral consequences: jail time (several years if convicted of sodomy), incarceration and physical torture in a mental institution under a sexual psychopath law, loss of one's job and even livelihood if the arrest were publicized, court-martial or (more typically) administrative separation

what Senate sponsor Patrick McCarran's original bill called "homosexuals and other sex perverts." Immigration and Naturalization Act of 1952, § 212(a) (4); see Boutilier v. INS, 383 U.S. 118 (1967); William N. Eskridge, Jr., Gadamer/StatutoryInterpretation, 90 Colum. L Rev. 609 (1990). 225. See Paul W. Tappan, The Habitual Sex Offender Report and Recommendations of the NewJersey Commission on the Habitual Sex Offender 28-29 (1953) (finding that almost half of the first 100 "sexual psychopaths" arrested in New Jersey were people convicted of lewdness (homosexual overtures) and consensual sodomy or fellatio). 226, Indeed, arrests of homosexual men in suspected cruising areas were often based on trumped up charges under whatever law the police considered appropriate. For examples of such routine police harassment of homosexual men, see George W. Henry, Sex Variants: A Study of Homosexual Patterns 57, 154, 166, 200, 280, 364, 409, 433, 444-45, 474, 483-84, 493- 94 (1948); Donald Vining, A Gay Diary, 1933-1946, at 284-85, 336-38 (1979). Note that the homosexual women described in Dr. Henry's study had virtually no encounters with the law. 227. See Morris Ploscowe, 208. The toilet law was N.Y. Penal Law § 1990a (Consol. 1939), amended by ch. 835, 1941 N.Y. Laws.

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from the armed forces, deportation if one were a noncitizen, and continued surveillance and harassment by police officers or detectives."8 The homosexual was not only a sexual outlaw, but one who by World War II had clearly caught the eye of the government.

C. Suppression of Homosexuality in the PsychiatricState If the ordinary homosexual were a threat to society and especially its youth because of his psychopathy, groups of them were obviously worse. The typical state impulse was to discourage or suppress any public presence for sexual inversion or homosexuality, in short, to expunge homosexuality from the nation's public culture. This Section will map out the ways public law sought this end: censorship of homophile publications, theatrical productions, and movies that depicted "sex perversion"; disruption of homosexual socialization by state raids on homosexual haunts and by regulation of liquor sales; and finally direct interrogation, treatment, and exclusion during World War II. These regulatory policies were often more explicitly antihomosexual on their face than the vague and elastic criminal laws deployed to harass and target homosexuals. As such, they inaugurated an official antihomosexual discourse in the United States. The new discourse combined themes of sodomy (criminal acts), inversion (violation of social gender norms), and sexual psychopathy (dangerous and uncontrollable desires) to produce a mythic figure-The Homosexual-who could be regulated for any of three reasons: committing illegal acts, challenging gender roles associated with her or his sex, or having specified sexual desires, or "homosexual tendencies." The discourse was seeping into state and national policy at the same time state and national policy was seeping into all walks of private life. The aggressive administrative state cut its regulatory teeth on the homosexual. Whether through police vice squads and morals divisions, local or state censorship boards, national customs and post office censors, private juries and arbiters of decency, alcoholic beverage commissions, immigration officials and doctors in the Public Health Service, examining physicians for the Selective Service, or commanders, investigators, and medics in the armed forces, the homosexual found herself interrogated, investigated, censored, censured, jailed, and hospitalized in ways that only Kafka could have imagined.

1. Censorship of Homophile Literature Federal, state, and municipal law criminalized the promulgation of obscene publications. The Tariff Acts of 1922 and 1930, enforced by the Customs Service, prohibited the importation from abroad of "obscene" publications.2m A federal law adopted in 1865 required that "all obscene

228. Although homosexual men were much more likely to be arrested than homosexual women, the collateral consequences were worse for women. For the terrorizing effect of episodic police raids on lesbian bars, see Kennedy & Davis, supra note 4, 63-64. 229. See 30 U.S.C. § 1305 (prohibiting the Customs Service from allowing "obscene"

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° publications... discovered in the mails shall be seized and destroyed,"2 and the Comstock Act prohibited the post office from mailing "[e]very obscene, lewd, lascivious, indecent, filthy, or vile article. '' ssI States such as Illinois, New York, California, Pennsylvania, Ohio, and Michigan had 2 adopted anti-obscenity laws before the Civil War. 2 Most other states adopted some kind of obscenity law before the turn of the century, and states with existing laws expanded them.25 3 Finally, municipal codes of prohibited offenses extended to obscene publications. Typical of most such provisions, Chicago's 1851 indecency law that prohibited cross-dressing also banned the distribution or sale of "any indecent or lewd book, picture or other thing whatever of an immoral or scandalous nature." 3 Note the layer-cake nature of government regulation of obscene publications: a book could be seized if any of a number of different officials thought it "obscene"-a customs agent, an official of the post office, a municipal or state censorship board, or the local police. Obscenity statutes did not target materials focusing on same-sex intimacy-indeed, they had no focus at all, as such statutes in the period 1880 to 1946 never defined what obscenity was. This was left to administrative and judicial construction. American officials subscribed to the British rule of banning a publication if any part of it tends "to deprave and corrupt those whose minds are open to immoral influences and into 5 whose hands a publication of this sort may fall" (the Hicklin test).3 Given this test and prevailing social attitudes, any direct description of

materials from coming into the United States from another country). See generallyJames C.N. Paul & Murray L. Schwartz, Federal Censorship: Obscenity in the Mail 55-63 (1961). 230. 13 Stat. 50 (1865); see H.R. Doc. No. 37-16 (1863) (Postmaster General had seized "obscene" material before statutory authorization). 231. Act of June 8, 1872, § 148, 17 Stat. 302, amended by Act of Mar. 3, 1973, 17 Stat. 598 (codified at 28 U.S.C. § 1461). See generally Heywood Broun & Margaret Leech, Anthony Comstock: Roundsman of the Lord (1927); Robert W. Haney, Comstockery in America: Patterns of Censorship and Control (1974); Paul & Schwartz, supra note 229, at 18-24. 232. See 1859 Cal. Stat. 297 (codified at Cal. Penal Code §§ 311-314 (1872)); 1858 Cal. Stat. 204 (codified at Cal. Penal Code §§ 311-314 (1872)); Ill. Rev. Stat. § 128 (1845); §§ 77- 78, 3 Rev. N.Y. Stat. 979 (recodified in N.Y. Penal Law § 317 (1881)); Act of Mar. 31, 1860, § 40, 1860 Pa. Laws 394 (codified at Pa. Penal Code tit. D, § X (1883)). 233. Maryland, for example, adopted a general ban on obscene publications in 1853 and revisited the issue repeatedly after the war, expanding the ban to new publications. See 1886 Md. Laws 490 (creating a special statute prohibiting distribution of lewd publications to minors) (codified at Md. Pub. Gen. Laws § 220 (1888) and Md. Pub. Gen. Laws § 339 (1904)); see also 1894 Md. Laws 271 (codified at Md. Pub. Gen. Laws § 340 (1894)). 234. Chicago, Ill., Charter and Ordinances ch. XXXVIII, art. I, § 6 (1856); see infra app. 6 (listing cities with similar anti-obscenity ordinances, as well as those prohibiting lewd plays and movies). Examples of anti-obscenity laws include Little Rock, Ark., Ordinance (May 11, 1891) (codified in Ordinances & Resolutions Gen. Character § 479); Phoenix, Ariz., Ordinance 99 (Dec. 20, 1915) (codified at Phoenix, Ariz., Municipal Code § 4139 (1939)). See also St. Louis, Mo., Ordinance art. II, § 7 (Sept. 3, 1864) (prohibiting the posting of "indecent bills or circulars"). 235. See Regina v. Hicldin, 3 Q.B. 360 (H.L. 1868), followed in United States v. Bennet, 24 Fed. Cas. 1093 (2d Cir. 1879) (No, 14,571) (the leading case construing the Comstock Act).

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same-sex intimacy was liable to be found obscene after the Civil War. For the best example, Walt Whitman's celebration of male camaraderie and female sexuality in Leaves of Grass was legally unchallenged during the Civil War but generated obscenity prosecutions by authorities in Boston and Philadelphia in 1882.2r The new social concerns about gender and sexual inversion drove Whitman and other writers into silence. Partly for this reason, sam-e-sex intimacy in English literature was depicted either with the utmost indirection and euphemism, as in Herman Melville's Billy Budd (circa 1890) and Oscar Wilde's The Picture of Dorian Gray (1890), or with extreme distance, as in Ellen Fowler's The Farringtons (1900) and Charles z Warren Stoddard's South-Sea Idyls (1873) . It is no coincidence that the first openly erotic male love story by an American author, Edward Stevenson's Imre (1906), was privately published in Naples, Italy, under the psudonym Xavier Mayne; his Intersexes (1908) was privately published in Rome under the same pseudonym. The first erotic female love story, Gertrude Stein's Things as They Are (1903), was not published at all until 1950. While literary works that depicted inverts and homosexuals as flesh- and-blood human beings were not easily publishable before World War I, the treatises of some sexologists were. Those included a few that were sympathetic to sexual variation among human beings, such as Havelock Ellis's Sexual Inversion (editions in 1897, 1910, 1915). On the other hand, Magnus Hirschfeld's Tranvestitien (1910) and Homosexualitit des Mannes und des Weibes (1914), were more factually based and sympathetic to minority sexualities but were not available in English until 1991. During the mini-revolution in sexuality of the Roaring Twenties, homosexuality became an even more common object of sexological discourse. In addition to new editions of the standard works by Krafft-Ebing, Ellis, and Freud (all of whom were more sympathetic to sexual variation than most Americans), home-grown studies were published in the United States. The most remarkable were Dr. Joseph Collins's The Doctor Looks at Love and Life (1926), which flatly denied that most homosexuals were "degenerate" or afflicted with any vice, and Katharine Bement Davis's Factors in the Sex Life of Twenty-Two Hundred Women (1929), which found an astounding incidence of same-sex attraction and physical expression among the twenty- two hundred women she surveyed. Although her findings did not receive the great publicity that Kinsey's would after World War II, they were even more dramatic in their discovery that as many as half of American women had tangibly lesbian feelings and affairs at some point in their lives.

236. See Betsy Erkkila, Whitman the Political Poet 360-71 (1989); David Reynolds, Walt Whitman's America: In Cultural Biography 540-41 (1995). 237. Surveys of the pre-1900 literature can be found in Roger Austen, Playing the Game: The Homosexual Novel in America (1977); Byrne Fone, A Road to Stonewall: Male Homosexuality and Homophobia in English and American Literature, 1750-1969 (1995); Jeannette Foster, Sex Variant Women in Literature (1976).

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Notwithstanding these books, most scientific as well as literary works published in the 1920s marched to the drumbeat of compulsory heterosexuality. In literature, most treatments of "queer" characters remained oblique, sometimes brilliantly so. Marcel Proust's closeted A la Recherche du Temps Perdu (originally published between 1913 and 1926) and Virginia Woolf's multifaceted Orlando (1928) were fascinating treatments of inverts and gender-benders, but were appreciated by the overeducated alone. The more typical treatment of homosexuality, hostility and disapproval, was not only more certain to satisfy the censors but better reflected the anxieties of a middle class whose sexual revolution was distincively heterosexual. Jake Barnes, a character in Ernest Hemingway's The Sun Also Rises, spoke for most American authors when he said, "I know they are supposed to be amusing, and you should be tolerant, but I wanted to swing on one, any one, anything to shatter that superior, simpering composure."238 More vicious still were depictions of lesbians in books such as D.H. Lawrence's The Rainbow (1915), an ode to unbridled heterosexual passion whose deepest enemy was lesbian , and Clemence Dane's Regiment of Women (1917). The latter created a classic caricature of female "vampirism," as the author termed the lesbian preying on younger confused Women.239 Although several gay-positive literary works were written in the 1920s and early 1930s, not all of them were published,240 and several of the published works were suppressed. Probably the best book about the emerging homosexual subculture was Charles Henri Ford and Parker Tyler's The Young and the Evil (1933), an ultracampy depiction of bohemian "gay" life in . Its snappy dialogue and unapologetic tone have made it a book worth preserving, but those same features led to its seizure by the Customs Service in 1933; it was not available in this country until 1960.241 Customs officials even seized classic works of literature portraying same-sex intimacy without condemnation, including Sir Richard Burton's 1885 edition of The Arabian Nights (with a history by the editor on same-sex desire) and The Memoirs of Fanny Hill, a ribald eighteenth-century novel.242 In 1928, the Customs Service banned Radclyffe Hall's The Well of Loneliness from importation, presumably because of its sympathetic treatment of sexual perversion.243 Like the author, the protagonist of the

238. Ernest Hemingway, The Sun Also Rises 20 (Scribner 1954) (1926). 239. See Clemence Dane, The Regiment of Women 403 (1917). 240. E.M. Forster's Maurice and several masterful short stories involving homosexual characters were completed in the early 1920s, but were not published until the 1970s because Forster suppressed them. See Oliver Stallybass, Introduction to E.M. Forster, The Life to Come and Other Stories at vii-xii (1972). 241. See Austen, supra note 237, at 59-60. 242. See Paul & Schawartz, supra note 229, at 46-48. 243. See Samuel Walker, In Defense of American Liberties 59 (1990). According to Paul & Schwartz, supra note 229, at 42, 263, the Customs Service later removed The Well of

HeinOnline -- 82 Iowa L. Rev. 1072 1996-1997 REGULATION OFSAME-SEX INTIMACY, 1880-1946 1073 novel, Stephen Gordon, was a female invert who wore her hair short and her suits well-tailored, carried a trim broad-shouldered frame, and excelled at upper crust sports such as riding. Viewing lesbianism as congenital, gender-inverting, and ultimately lonely, the novel echoed the theories of the early sexologists. In a climactic moment for the novel, Stephen discovered her sexual "truth"-her inversion-when she read her father's marked copy of Krafft-Ebing's Psychopathia Sexualis. The liberated Stephen then served as an ambulance driver during World War I, where she met her true love, Mary. Although Stephen ultimately (and unpersuasively) renounced her love so that Mary could enjoy a married life, the naturalness of the lesbian relationship scandalized critics and censors on both sides of the Atlantic.244 Ultimately, The Well of Loneliness found its way to the United States, both because the Customs Service revoked its ban and because Covici Friede published it in America. On January 11, 1929, however, the New York City police seized 800 copies of the novel, at the behest of the Society for the Suppression of Vice. The summons charged that The Well of Loneliness violated New York's law prohibiting the distribution of "obscene, lewd, lascivious, 2 4 filthy, indecent or disgusting" literature. 5 City Magistrate Hyman Bushel upheld the censorship in People v. Fiede.24 Conceding that the book had literary merit, the Magistrate held: The book can have no moral value, since it seeks to justify the right of a pervert to prey upon normal members of a community, and to uphold such a relationship as noble and lofty. Although it pleads for tolerance on the part of society of those possessed of and inflicted with perverted traits and tendencies, it does not argue for repression or moderation of insidious impulses.... The theme of the novel is not only antisocial and offensive to public morals and decency, but the method by which it is developed, in its highly emotional way attracting and focusing attention upon perverted ideas and unnatural vices, and seeking to justify and idealize them, is strongly calculated to corrupt and debase those members of the community who would be susceptible to its immoral influence. Although the book in evidence is prefaced by a laudatory commentary by Havelock Ellis, yet it is he who, in his scientific treatise on the subject states: "We are bound to protect the

Loneliness from the list of proscribed books. 244. The Home Secretary bullied Hall's English publisher into withdrawing the book before a single copy had been sold. Authors ranging from the pansexual Virginia Woolf to the closeted E.M. Forster protested this action, but an obscenity trial in November 1928 before Sir Chartres Biron resulted in a verdict that the Obscene Publications Act of 1857 precluded publication in England (until 1949). 245. See N.Y. Penal Law § 1141 (1881), amended by ch. 380, § 1, 1884 N.Y. Laws; ch. 692, § 1(1), 1887 N.Y. Laws; ch. 731, 1900 N.Y. Laws. The obscenity law was recodified in ch. 925, 1941 N.Y. Laws. 246. 233 N.Y.S. 565 (N.Y. City Magis. Ct. 1929).

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helpless members of society against the invert." This ruling was a double triumph for the sexologists, who were the inspiration for both the novel and its suppression. As Friede's attorney Morris Ernst later put it, this was the first time an American court had upheld "banning the literary expression of an entire area of human knowledge or human behavior." 24' The ruling, however, was overturned in an unreported 24 opinion by a threejudge panel of New York Supreme CourtJustices. A short-term effect of the controversy over The Well of Loneliness was to bring negative public attention to same-sex intimacy. Responding to The Well of Loneliness in particular, novel after novel in the 1930s depicted lesbians as monsters and homosexual men as sex maniacs.249 On the other hand, several writers dared to depict same-sex intimacy in more natural ways, as Mrs. Blair Niles did in A Strange Brother (1931), an empathic account notable more for its depiction of gay Harlem than for its saccharine plot and characters. Other writers effectively depicted sexually unconventional characters, albeit usually with an overlay of sadness or tragedy, as in Djuna Barnes's Nightwood (1937), or with an implicitness that only the cognoscenti would recognize, as Carson McCullers did in The Heart Is a Lonely Hunter (1940). Even more explicit treatments of homosexual themes came to public display in the 1930s, notwithstanding the censors. Three examples were autobiographical: Gertrude Stein's Autobiography of Alice B. Toklas (1933), Andr6 Gide's If It Die (English translation, 1935), and Diana Frederics's Diana, A Strange Autobiography (1939). In short, censorship was by the 1930s only partly successful in achieving its goal of erasing homosexuality and perversion from the literate culture. Constitutional law played a role in this development. The Supreme Court in 1926 held that the First Amendment applied to the states, and that was the basis of Covici Friede's lawsuit to overturn censorship of The Well of Loneliness. Following the old English and American precedents, Magistrate Bushel had sustained the censorship in the opinion quoted above, but the ruling that overturned his decision reflected the new First Amendment thinking. This jurisprudence, developed in New York state courts, received a powerful endorsement from Second Circuit Judge

247. Morris L. Ernst & Alan U. Schwartz, Censorship: The Search for the Obscene 71-79 (1964). 248. The opinion is quoted in Vim Brittain, Radelyfte Hall: A Case of Obscenity? 147-49 (1968). 249. For depiction of lesbian monsters, see Kathleen Millay, Against the Wall (1929); Geoffrey Moss, That Other Love (1930); Naomi Royde-Smith, The Island (1929), all discussed in Foster, supra note 237. For depiction of men as sex maniacs, see Lew Levenson, Butterfly Man (1934); Richard Meeker, Better Angel (1933); Andre Tellier, Twilight Men (1931). See generally Austen, supra note 237. Even the most sympathetic novels, such as Mrs. Blair Niles's Strange Brother (1931) and Djuna Barnes's Nightwood (1937), presented homosexuals as tragic figures who were deranged or dead by the end of the novels.

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Augustus Hand's decision in United States v. One Book Entitled Ulysees by James Joyce.2" ' Holding that Ulysees was not obscene and could therefore not be censored by the Customs Service consistent with the First Amendment, Judge Hand rejected prior English and American cases allowing censorship of material tending "to deprave the minds of those open to such influences."2s Instead, Judge Hand agreed with the New York state courts, that "the question in each case is whether a publication taken as a whole has a libidinous effect."2 2 Such an approach would suggest that homophile publications having literary or educational merit, beyond their prurient appeal, could not be censored. That view was applied by New York courts to protect Madeleine, the autobiography of a prostitute, and If It Die, Gide's sexually explicit and prohomosexual autobiography. s Although the publisher won, the decision in the Gide case warned that censorship was avoided only because the author had "not made vice his major topic."

2. Suppression of "Degeneracy" and "Sex Perversion" in Theatrical Productions Most state and municipal obscenity laws originally focused on books, magazines, pictures, and other printed matter. In the late nineteenth and early twentieth centuries, municipalities amended existing ordinances or adopted new ones prohibiting public productions that police considered obscene or indecent. An early regulation was Baltimore's prohibition in 1879 of the "performance of any indecent or blasphemous play, farce, opera, public exhibition, show or entertainment."25 Ordinances in other cities were similar, usually adding "immoral" or "obscene" or "lewd" to the adjectives stimulating suppression of a play. Although the obscenity decisions made by judicial and administrative censors suggest that plays having homosexual themes could be suppressed, there are few apparent examples of such suppression before World War I, mainly because virtually no producer dared present a play involving inversion.25 The play Sappho by Alphonse Daudet and Adolph Belot was produced in New York in 1895 and 1900. Its subject matter, female inversion, provoked its suppression

250. 72 F.2d 705 (2d Cir. 1934). 251. United States v. Bennett, 24 Fed. Cas. 1093 (2d Cir. 1879) (No. 14,571); see Rosen v. United States, 161 U.S. 29 (1896); Regina v. Hicklin, 3 Q.B. 360 (H.L. 1868). 252. Ulysees, 72 F.2d at 707, flowing Halsey v. New York Soc'y for the Suppression of Vice, 136 N.E. 219 (N.Y. 1922). 253. See People v. Brainard, 183 N.Y.S. 452 (App. Div. 1920) (Madeleine); People v. Gotham Book Mart, 285 N.Y.S. 563 (N.Y. City Magis. Ct. 1936) (If It Die). 254. Baltimore, Md., Code art. 51, § 1 (1879). This was Baltimore's only municipal regulation pertaining to issues of sexuality or gender. San Francisco's similar prohibitions in 1866 and 1909 are reprinted in Appendix 5. Other municipal regulations are listed in Appendix 6. 255. Even Oscar Wilde's witty and sexually ambiguous tour de force, The Importance of Being Earnest, was not produced in the United States until 1902.

HeinOnline -- 82 Iowa L. Rev. 1075 1996-1997 1076 82 IOWA LAWREVIEW [1997] under the state obscenity law in the latter year.2 6 A major post-war theatrical "perversion" controversy involved the production of Edouard Bourdet's The Captive. 7 In this play, a young woman, Irene, was torn between her love for another woman and the courtship of a pleasant male suitor, Jacques. Although they married, Jacques found the relationship frustrating and returned to a former lover. In the final scene, Irene departed to be with her true love, the woman never actually seen on the stage. The final moment of the play was the sound of a closing door. The play opened to enthusiastic critical reviews in 1926 but attracted immediate criticism from the Society for the Suppression of Vice and populist Mayor Jimmy Walker. The producers agreed to submit the production to a twelve-person "play jury" to determine whether it was salacious, but the jury split down the middle and "acquitted" the production. Perhaps emboldened, Mae West (whose play Sex was already on Broadway) announced that her new play, The Drag, would open in Connecticut and work its way to Broadway. The Drag was even more avant-garde than The Captive. It started out with a doctor's denunciation of criminal penalties for same-sex intimacy and ended with a spontaneously performed drag show raided by the police. Doused with multiple displays of gender-bending, public anxiety mounted in early 1927. New York's Society for the Suppression of Vice called for abandonment of the worthless play jury system and for strict censorship of lewd plays. Many New Yorkers concurred. In a letter to the New York Times, Mrs. Elsie MacCormack of Long Island put it this way: "Curiosity is one of the greatest lures at the dangerous period of adolescence.... Nakedness and sex appeal along normal lines may discount modesty and outrage good taste, but perversion is a horror and social smallpox that should be treated in the segregation of the pest house laboratory."258 Threatened with a public backlash, Mayor Walker's continued threats, and state legislative consideration of a bill to require prior approval of any play, Broadway's producers in February worked out a voluntary censorship plan, but matters by then were out of their hands. On February 9, 1927, New York police raided The Captive and Sex, temporarily closed down the shows, and arrested cast members Basil Rathbone (Jacques), Helen Mencken (Irene), and Mae West (Sex personified). Although the producers obtained injunctions, West ultimately went to jail for ten days on "public nuisance" charges and decided not to bring The Drag to Broadway; producers of The Captive closed down that show soon after obtaining a temporary injunction. The producer agreed to bring The Captive back from censor prison if he could obtain a judicial

256. See Katz, Gay American History, supra note 3, at 136, 876. 257. Original sources (articles in the homophobic New York Times) and a coherent account of the controversy are in id. at 128-39. 258. Elsie MacCormack, Letter to the Editor, N.Y. Times, Jan. 21, 1927, at 14, reprinted in Katz, Gay American History, supra note 3, at 131.

HeinOnline -- 82 Iowa L. Rev. 1076 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1077 order protecting it from prosecution, but Justice Jeremiah Mahoney of the New York Supreme Court denied a permanent injunction on the ground that the play was immoral and could be censored under the state obscenity law because of its "dangerous effects" on young, immature, and vulnerable persons. The judge pointed to evidence that most of the audience were under age twenty-five and were women. Within a few months, in April 1927, District Attorney Banton and the Society for the Suppression of Vice were successful in procuring legislative enactment of a law criminalizing plays like The Captive and The Drag. The new theatrical "padlock" statute259 made it a state misdemeanor to present or participate in "any obscene, indecent, immoral or impure" production which would "tend to the corruption of morals of youth or others." It was also a misdemeanor to present any play or show "depicting or dealing with, the subject of sex degeneracy, or sex perversion." The owner of a building used for the performance of such a play was also guilty of a misdemeanor and could lose the license needed for operating such a building. This law was the first American obscenity statute to prohibit "degeneracy" or "sex perversion" by name and was invoked three years later by Magistrate Bushel's opinion in the The Well of Loneliness 2 case. 60 The 1927 statute did not purge Broadway of same-sex intimacy but arguably redirected its depiction toward more negative or subtle treatments than that of The Captive and The Drag. In 1929, for example, Thomas Dickinson's sloppy play Winter Bound was allowed to run; notwithstanding its suggestion of same-sex attraction between two women, the play was probably more acceptable to the censors because one of the women rejected such an alliance in favor of marriage to a man.26 ' Lillian Hellman's The Children's Hour (1934) told the dramatic story of how a schoolgirl rumor of an affair between two female teachers led to the realization by one teacher that she actually was in love with the other. Although the play was banned in Boston and Chicago for its scandalous subject matter,6 2 it was a hit on Broadway and was not censored in New York. Unlike The Captive, Winter Bound and The Children's Hour did not allow the women to consummate their relationship, and in Hellman's play the lesbian schoolteacher committed suicide. Nor did the padlock law deter theatrical productions of Noel Coward's witty plays, for they merely suggested or winked at same-sex intimacy. For example, Design for Living

259. See 1927 N.Y. Laws 690 (codified at N.Y. Penal Law § 1140a(2)). 260. The 1927 law had echoes at the municipal level as well. Los Angeles's Municipal Code of 1945 contained a provision prohibiting the showing of any "drama, play, exhibition, show, or entertainment, which tends to corrupt the morals of youth or others, or which depicts or deals with the subject or theme of sex degeneracy or sex perversion, or sex inversion." Los Angeles, Cal., Municipal Code § 41.02(a) (1927) (repealed in Los Angeles, Cal., Municipal Code (1957)). 261. See Katz, Almanac, supra note 14, at 460. 262. SeeWilliam C. Wright, Lillian Hellman: The Image, the Woman 101 (1986).

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(1933) involved a triangle that the cognoscenti would recognize as a woman and two gay or bisexual men, but which producers and263 cooperative critics could sell to the censors as merely "unconventional."

3. Suppression of "Sex Perversion" in the Movies Censorship was even more vigorous in the newest medium, film. The first generation of American movies (such as The Gay Brothers (1895) and Spit Ball Sadie (1915)) depicted gender-bending characters, over objections from the Legion of Decency and other religious groups. In response, many cities enacted laws to regulate obscene movies. Detroit in 1907 adopted the first comprehensive regulation of obscene movies.Y1 The regulation required a license from the police commissioner to show any movie and instructed the commissioner not to license "indecent or immoral" films. The movie-regulation-by-licensing idea was followed in at 2 least eight states and dozens of municipalities after 1907. 6 Importantly, Hollywood's home town was one of the first to follow Detroit. Thus, in a 1908 ordinance, Los Angeles required a permit from the Board of Public Works before anyone could exhibit a motion picture in the city.26 As amended, the motion picture permit law came to require that the Board deny a permit unless it were persuaded that the "business will be lawfully and decently conducted and that no26 7lewd, indecent or obscene show will be presented in the course thereof." Moviemakers objected to this system of prior restraints, but the Supreme Court in 1915 held that "the exhibition of motion pictures is a business [and] not to be regarded.., as a part of the press of the nation or as organs of public opinion," thereby exempting movie censorship from First Amendment scrutiny.s In the wake of the Court's pronouncement, a new wave of cities, from Atlanta to Kansas City, adopted similar permit- and-prohibition schemes,269 as did states such as New York, Massachusetts,

263. Thus, The New York Times billed the play as about "three people who love each other very much." See Katz, Almanac, supra note 14, at 473. 264. See Detroit, Mich., Comp. Ordinances ch. 190, § 20 (1912). 265. State censorship systems were early on established in Pennsylvania (1911), Kansas (1913), and Ohio (1913). Among early municipal prohibitions were those of Chicago (1907), San Francisco (1909), Little Rock (1911), and Pittsburgh (1911). See infra app. 6 for more listings. 266. See Los Angeles, Cal., Ordinance 17,063 (Aug. 29, 1908) (New Series). 267. Los Angeles, Cal., Ordinance 86,216 (New Series) (codified in Los Angeles, Cal., Municipal Code § 23.15(i) (1936)); see Los Angeles, Cal., Municipal Code § 23.15(k) (1936) (permit must be revoked if applicant or someone associated with the enterprise is convicted of presenting a "lewd, indecent or obscene" show); see also Los Angeles, Cal., Municipal Code § 41.13 (1936) (prohibiting motion pictures which depict "any immoral, indecent, lewd, lascivious or unlawful act" or which "offend public morals or decency"). 268. Mutual Film Co. v. Ohio Indust. Comm'n, 236 U.S. 230 (1915). 269. See Atlanta, Ga., Code § 58-108 (1942) (Censorship Committee for movies); id. § 66- 504 (no "obscene, vulgar, indecent, immoral picture" shows); Kansas City, Mo., Rev. Ordinances § 269 (1928) (creating new Motion Picture Censor and a Board of Appeals to prevent the showing of any film that is "immoral, obscene or detrimental to the public

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Virginia, Florida, and Maryland. The New York law, for example, prohibited the licensing or showing of any film that was "obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals." 270 As with printed matter, the Customs Service stood ready to seize obscene movies made abroad and shipped into the United States. Led by the Society for the Suppression of Vice and religious groups such as the Legion of Decency, the censorship movement sought to suppress film depiction of minority sexual orientations. Their efforts had substantial success. Anders als die Anderen (1919) and Gesetze der Liebe (1927), German films depicting the "third sex," never reached the United States before almost all copies were destroyed by the Nazis. 1 Alla Nazimova's Salome (1927), allegedly filmed with an all-gay cast, was savagely cut by the censors because of wicked scenes of same-sex eroticism; a New York censor judged the movie "a story of depravity and immorality made worse because of its biblical background. Sacrilegious. The American distribution of the lesbian-friendly film Mddchen in Uniform (1931) was halted when the New York censors denied the film a license because its protagonist, Manuela, was depicted sympathetically and because there were "intimate scenes . . . throughout the picture of boarding school life, revealing the prevalence of abnormal relationships.... [T]hese, together with the definite story of Manuela's affinity for her teacher, make this picture totally unsuitable for showing in any theatre."2 To satisfy the censors, the distributors agreed to cuts that diluted the lesbian overtones to such an extent that when the film opened in 1932, the critic for The New York Times smugly commented, "Whisperings among the peculiar citizens of our community identified MAdchen in Uniform as the celluloid Well of Loneliness. So all the mental experimentalists were on hand to see it last but they were surprised. It is a simple, clean, wholesome little night. Ah! 27 4 tale of schoolgirl crushes."

good"); Lincoln, Neb., Municipal Code § 21-214 (1936) (prohibiting moving pictures that are "immoral, obscene, lewd, lascivious, or of an indecent character"); see also infra app. 6. 270. Ch. 715, 1921 N.Y. Laws, codified at N.Y. Educ. Law § 122 (1921), which was invalidated by the Supreme Court in 1952 because "immoral" was too vague. New York amended the law to define "immoral" to include films which portrayed "acts of sexual immorality, perversion, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior." Ch. 620, § 1, 1954 N.Y. Laws. This law was invalidated in Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684 (1959). 271. See Vito Russo, The Celluloid Closet: Homosexuality in the Movies 18-22 (rev. ed. 1985). 272. Id. at 29. Apparently less "depraved" were less venturesome or more censurious movies, for they escaped the censor's scissors. Cecil B. DeMille's Manslaughter (1922) included two women kissing in the midst of a larger orgy scene; the disapprobation conveyed by the whole scene probably saved that image. Stan Laurel's The Soilers (1923) ended with a clearly gay cowboy making a pass at the hero, whose disgusted rejection of the overture impels the cowboy to conk him on the head with a potted petunia. 273. Russo, supra note 271, at 57. 274. Id. at 58.

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Hoping to head off further regulation and to avoid the disaster visited upon Broadway in 1927, the film industry adopted the Hollywood Production Code in 1930, which was issued in final form in 1934.275 The Code permitted moviemakers to depict vices such as murder, adultery, and prostitution, so long as they were depicted negatively, but flatly banned any reference to a short list of (apparently) worse immoral practices, notably '2 7 ,$sex perversion. ' After 1934, the Code was efficaciously enforced by a Production Code Administration created by the studios. Open mention or depiction of homosexuality all but disappeared from celluloid for a generation. 7 To take one example, Lillian Hellman's Broadway play The Children's Hour could not meet the Production Code because it treated "sex perversion," even if tragically. Helman herself rewrote the screenplay as the story of two teachers who were ruined by rumors that one of them had with her fianc6, the school doctor. Even as rewritten, the censors insisted that the movie avoid any association with the notorious Broadway play, and so the movie was retitled These Three (1935).2

4. Suppression of Homosexual Socialization Through Police Raids There were surprisingly many spaces for same-sex socializing and cruising in big and medium-sized cities in the early twentieth century: music halls, cafes and restaurants, private flats, public parks, streets, public 2 toilets, the local YMCA lobby, theatres, public baths, and subways. " As

275. See Leonard J. Leff & Jerold L. Simmons, Dame in the Kimono: Hollywood, Censorship, and the Production Code from the 1920s to the 1940s (1990). 276. Motion Picture Producers and Distribs. of Am., Inc., A Code to Govern the Making of Motion and Talking Pictures, Particular Application II.4 (June 13, 1934), reprintedin Morris L. Ernst & Alexander Lindey, The Censor Marches on 317 (1940), provided: "Sex perversion or any inference to it is forbidden." Application 11.3 specified that "Seduction or Rape" should "never be more than suggested, and only when essential for the plot." Id. 277. A number of movies could get by with effeminate male characters (sissies), so long as they were treated as comic characters or foils for "real men." Edward Everett Horton played the role to perfection in such movies as The Front Page (1931) and His Girl Friday (1940). As Russo puts it, "Symbols of masculinity were defended by the use of symbols for homosexuality. ... Sissies were an outlet for unspeakable ideas." Russo, supra note 271, at 32. The tomboy played something of the same role for unspeakable lesbianism. Greta Garbo's depiction of Queen Cristina (1934) flirted with the lesbianism of her character, but apparently with enough subtlety to escape the censors. 278. See Russo, supra note 271, at 63. Hellman's play was remade as The Children's Hour, again directed by Wyler, in 1962. See id. at 139-40. 279. Contemporary accounts include Magnus Hirschfeld, Homosexuality in Men and Women (1914), exc-erpted in Katz, Gay American History, supra note 3, at 76-80 (Boston, Chicago, Denver, New York, and Philadelphia);Jeb and Dash: A Diary of Gay Life, 1918-1945 (Ina Russell ed., 1993) (Washington, D.C.); Lind (Ralph Werther - Jennie June), Female Impersonators, supra note 2 (New York City); Mayne (Edward Stevenson), supra note 44, at 640 (Boston, Chicago, New Orleans, New York, San Francisco, St. Louis, and Washington, D.C.); James G. Kiernan, Sexoloy . .. Theory of Inversion... Classifcation of Homosexuality, 20 Urologic & Cutaneous Rev. 345, 345-50 (1916), excerpted in Katz, Almanac, supra note 14, at 367 (Chicago); Vice Comm'n of Chicago, supra note 65 (Chicago). Leading secondary accounts are Chauncey, Gay New York, supra note 4, at 151-225

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Havelock Ellis put it in 1915, The world of sexual inverts is, indeed, a large one in any American city, and it is a community distinctly organized-words, customs, traditions of its own; and every city has its numerous meeting-places: certain churches where inverts congregate; certain cafes well known for the inverted character of their patrons; certain streets where, at night, every fifth man is an invert. The inverts have their own "clubs," with nightly meetings.2 80 These meeting places were critically important for the development of a gay subculture, and for precisely that reason the state did what it could to break them up. Once they became well-known, these public spaces were monitored by the police, and men looking for companionship were harassed by the police, posing as decoys or watching from hiding places. Usually police harassment was retail, arresting or harassing inverts singly or in small clusters. But just as prostitutes were sometimes subject to group raids, so too were congregating places for homosexuals. Suppression of prostitution and degeneracy influenced the evolution of police practices in the early regulatory state. By 1910, police in New York City had been organized into vice teams that staked out homosexual cruising areas, raided gay baths and bars, and cooperated with private antivice societies (Society for the Suppression of Vice and the Committee of Fourteen) in campaigns to erase public displays of inversion or perversion. Apparently, the first "raids" against congregations of inverts were around the turn of the century: in addition to sweeps of streets where inverts paraded, police squads raided Paresis Hall in 1896 and the Ariston Hotel Baths in 1903, both raids at the instigation of private antivice societies.28 ' Similar instigations underlay the five police raids on gay baths between 1903 and 1930.282 New York was unique in its vigorous focus on homosexual hangouts, but other urban jurisdictions followed New York's prostitution-inspired practice of deploying its police in special morals squads, which caught sex criminals by going undercover and engaging in raids of bawdy premises.

(social centers for fairies in New York: YMCA, streets, parks, rooming houses, "T rooms" (toilets), and gay baths); Faderman, supra note 4, at 62-117 (lesbian subcultures, especially in Greenwich Village and Harlem); Kennedy & Davis, supra note 4 (drawing from first-person oral history to recreate lesbian subculture in Buffhlo, 1930s); Allan Bdrubd, The History of Gay Bathhouses, in Policing Public Sex: Queer Politics and the Future of AIDS Activism 187-220 (Dangerous Bedfellows eds., 1996) (bathhouses in San Francisco and New York). 280. Havelock Ellis, Studies in the Psychology of the Sexes: Sexual Inversion 350 (3d ed. 1915), excerpted in Katz, Gay American History, supra note 3, at 80. 281. See Chauncey, Gay New York, supra note 4, at 214; Lind (Ralph Werther - Jennie June), Female Impersonators, supra note 2, at 164. 282. See Chauncey, Gay New York, supra note 4, at 215-16. BMrub6, supra note 279, at 194, recounts a raid of a downtown Turkish bathhouse in 1916 which had been infiltrated by agents of the local Comstock Society. Prodded by the Society, the police raided the bath and arrested 37 men. One was the bath manager, who committed suicide; 25 of the men were convicted and sent to prison.

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Where New York raids were usually inspired by pressure from private antivice societies, those in San Francisco were associated with the national armed forces, which had a major headquarters in the city's Presidio. The police morals squad and the Army's investigators cooperated in a 1918 raid 2 3 of the Baker Street sex club in 1918.8 The raid lasted ten days, during which time officers detained men who entered the house, excated confessions of perversion from them, and pressured them to identify other homosexuals, who were then rounded up and interrogated. Altogether, at least thirty-one men, including two police officers who patrolled the neighborhood, were arrested, and the club vanished. The consequences were tragic for most, who went to jail, fled the city, or (in two cases) committed suicide. The few defendants who fought their convictions for consensual oral sex won acquittals from the California Supreme Court in 1918. Although other cities, such as Los Angeles and Chicago, had morals or vice squads and sizeable homosexual subcultures by the 1920s, raids were not as frequently deployed as a method of social control during the 1920s and 1930s, perhaps because the police departments were more corrupt or less pressured by other forces (antivice groups, the Army). Nonetheless, the most politically charged police raid occurred in Chicago. As early as 1906, representatives from Germany's Scientific-Humanitarian Committee came to the United States to lecture about the rights of 2 homosexuals as a natural "third sex." 11 It was not until 1924 that the first such organization was founded in America. Sponsored by Henry Gerber, who was influenced by the German ideas, the Chicago-based Society for Human Rights sought to protect the rights of "people [with] mental and physical abnormalities." 5 The Society had a minuscule membership and a modest agenda, to educate citizens of Illinois about homosexuality and to seek repeal of the state sodomy law, but the association of homosexuals was cause for private and public alarm. The wife of one of the members complained to the police, who without a warrant arrested Gerber and two others on disorderly conduct charges and seized the Society's records and Gerber's personal diary. One of the defendants pled guilty to disorderly conduct, but Gerber retained lawyers and won a dismissal of his case. The "parting jibe" of the Chicago detective was, "What was the idea of the Society for Human Rights anyway? Was it to give you birds the legal right to rape every boy in the street?" 28 6 After charges were dismissed, Gerber himself lost his post office job for2 7 "conduct unbecoming a postal worker." This was the end of the Society.

283. See Bdrubd, supra note 279, at 209-10. 284. See Patrica A. Cain, Litigatingfor Lesbian and Gay Rights: A Legal Histoy, 79 Va. L Rev. 1551, 1554 (1993). 285. The only direct account of the arrest is Gerber's, written a generation later. See Henry Gerber, The Society for Human Rights - 1925, ONE Mag., Sept. 1962, at 5, 5-10, repfinted in Katz, Gay American History, supra note 3, at 584-91. 286. Katz, Gay American History, supra note 3, at 591. 287. Although the Society ended, Gerber in the 1930s wrote essays about sexual freedom

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The suppression of Gerber's Society for Human Rights shows how the police raid had direct political consequences for homosexuals. Allan B6rub6 maintains that the politics of such raids were much deeper, because the baths and the bars had subtler social and political roles.2m These institutions provided people with places they could meet same-sex partners on equal terms, relatively unbothered by private bullies and prostitutes. As bars and baths proliferated, fairies soliciting "trade" (straight men who would allow themselves to be serviced) were being replaced with "gay" people seeking contact with other gay people. Although the episodic nature of police raids failed to stamp out gay bars and bathhouses, they did terrorize individual lives and probably impeded the evolution of gay subculture. Another feature of bar raids is their relevance to homosexual women as well as men. While lesbians did not engage in nearly as much of the cruising activity that men did, they did hang out in bars and have attic parties in the post-World War I period. The possibility of random arrests was palpable and terrifying, because the police would take pictures and 2 9 report the women to their families or the local newspaper. 8 Such exposure was more punishing to homosexual women than men, because the former had fewer job opportunities and could less afford losing their current ones needed to remain independent of their families. 5. Suppression of Homosexual Socialization Through State Liquor Licensing Bars descended from the old brothel-saloons were the most ubiquitous place for homosexual socialization in most cities. At the turn of the century, they were usually regulated by municipal licensing laws. Chicago's law, for example, required any place selling liquor to be licensed by the mayor.2 ° The license was supposed to be granted only if the mayor found the applicant to be of "good character" and the applicant pledged to follow all relevant state laws and municipal ordinances.2' Failure to follow those rules could result in revocation of one's license, as could the following: "Upon report to the mayor by the department of police that any saloon is the resort of disreputable persons, the mayor shall

and homosexuality, including a celebrated 1932 article, In Defense of Homosexuality, where he lampooned the American psychiatric views that homosexuality is both neurotic and "curable." Henry Gerber, In Defense of Homosexuality, reprinted in Martin Duberman, About Time: Exploring the Gay Past 145, 145-48 (rev. ed. 1991). 288. See Bdrub6, supra note 279, at 189-92, 195. 289. See Kennedy & Davis, supra note 4, at 64. "Despite the fact that raids were infrequent and very few lesbians were involved, everybody was always aware that they were a possibility, and that they were unpredictable; even private large parties were occasionally raided." Id.at 63. 290. See Chicago, Ill., Municipal Code § 1525 (1911). 291. See id. § 1526.

HeinOnline -- 82 Iowa L. Rev. 1083 1996-1997 1084 82 IOWA LAW REVIEW [1997] at once revoke the license of the keeper of such saloon."2 This requirement was likely aimed at saloons serving as a congregating place for prostitutes or gamblers, but by the 1910s it could have been applied to sexual inverts and degenerates as well. Prohibition (1920-1933) transferred the regulation of alcohol from the local to federal level, with disastrous effect for the legitimacy of morality-based laws. During Prohibition, gay bars such as Finocchio's in San Francisco or the Pansy Club in New York were raided because they were serving illegal booze. After Prohibition, gay bars were raided because they were serving illegal patrons. More important, such bars were subject to losing their licenses. After the repeal of Prohibition in 1933, the state (not the municipality as before) became the licensor of liquor sales in bars, taverns, hotels, and other establishments. In most states, liquor licensing statutes or agency regulations required that licensees be of "good moral character" and that establishments not permit "disorderliness" on the licensed premises. Violation of these conditions meant that a liquor license-and hence the establishment's main source of income-could be suspended or revoked by the liquor commission or alcoholic beverage control board. This was a powerful regulatory weapon that could be wielded with great effect by determined regulators. Its effectiveness as a weapon was only limited by the ability of the regulators to identify and prove that an establishment was a lewd gathering place. In New York, the best documented example, the Alcoholic Beverage Control Law of 1934 conditioned an establishment's liquor license upon the requirement that it not "suffer or permit such premises to become disorderly."2' Like the police's and magistrates' construction of the state disorderly conduct law to apply to sexual "degenerates," New York's State Liquor Authority (SLA) in the 1930s interpreted "disorderly" to preclude bars from serving prostitutes, homosexuals, degenerates, or other "undesirables." To carry out this policy, the SIA relied on police tips to target bars suspected of having homosexual patrons; once targeted, a bar would be visited by plainclothes SLA investigators, who wrote reports that could be used as a basis for revoking or suspending the bar's license or to pressure bar owners to exclude homosexuals, under threat of losing their licenses.2"5

292. Id4§ 1536. 293. See, e.g., 1934 Cal. Stat. (license can be revoked if premises become a "disorderly house" or where "the continuance of a license would be contrary to public welfare and morals") (codified at Cal. Bus. & Prof. Code § 24,200 (West 1935)); § 1, 1935 Fla. Laws ch. 16,774 (license can be revoked for "permitting disorderly conduct") (codified at Fla. Stat. ch. 561.29 (1943)); § 19(A)(7), (B)(16), 1952 Tex. Crim. Stat. 667 (revocation if licensee allows conduct that is "lewd, immoral or offensive to public decency" or if licensee is convicted of a felony); 1934 Va. Laws 114 (license can be revoked for inappropriate behavior by owner or on premises) (codified at Va. Code Ann. § 4675(25) (Michie 1942)). 294. Alcoholic Beverage Control Law § 106(6) (added by 1934 N.Y. Laws); see Leonard V. Harrison & Elizabeth Laine, After Repeal: A Study of Liquor Control Administration (1936). 295. See Chauncey, Gay New York, supra note 4,at 337.

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An early casualty of this policy was Gloria's, a campy bar at the corner of Third Avenue and Fortieth StreetY.0 In 1939, the bar was clearly a gay hangout, where men "gabbed around in feminine voices" and "impersonat- ed females," according to the SLA investigator. The SLA threatened to revoke the license because the bar allowed its premises "to become disorderly in permitting homosexuals, degenerates, and undesirable people to congregate." This charge was based upon reports by investigators that male patrons had behaved in a "feminine" manner, that a patron had "fondled" one of the investigators, and that two patrons had solicited the investigators and one had offered to arrange dates with "degenerates." When Gloria's failed to purge itself of all degenerates as demanded, the SLA not only revoked its license, but torpedoed the owner's investment by preventing the premises from being licensed to anyone else for a year. Unlike other bars disciplined by the SLA, Gloria's appealed, arguing that the SLA's policy was unauthorized by the statute. The courts summarily affirmed the SLA's order. According to historian George Chauncey, hundreds of bars met the same fate as Gloria's, including some bars that did not solicit a homosexual clientele but that merely7 tolerated such clients or failed to take sufficient efforts to scare them off.2 The SLA in Gloria's case argued that even if no lewd acts had occurred, the agency was authorized to revoke the liquor license of an establishment simply because "lewd and dissolute" persons congregated there.2s This was precisely the rule that was adopted by New Jersey's Division of Alcoholic Beverage Control in 1934, which directed that no licensee could allow on its premises "any known criminals, gangsters, racketeers, pickpockets, swindlers, confidence men, prostitutes, female impersonators, or other persons of ill repute." 9 California had a vaguer version of such a rule by statute in 1934,3"0 and states as different as Michigan and Virginia explicitly adopted anticongregating rules after

296. See id. at 338-40, which is based upon the Record on Review of Gloria Bar & Grill v. Bruckman, 18 N.Y.S.2d 1023 (App. Div. 1940). 297. See, e.g., Bar & Grill, Inc. v. Bruckman, 12 N.Y.S.2d 232 (App. Div. 1939), discussed in Chauncey, Gay New York, supranote 4, at 340-42. 298. In affirming the SLA's authority, the appeals court did not address this argument. Recall Chicago's rule in 1911 that licensed premises could not be a haven for "disreputable" persons. 299. Rule Four was quoted, discussed, and applied to a gay bar by In re M. Potter, Inc., N.J. ABC Bulletin 474, Item 1, Decision of New Jersey's Commissioner of Alcoholic Beverage Control (Aug. 7, 1941). See also One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control, 235 A.2d 12, 14 (N.J. 1967) (quoting Rule Four and discussing Potter). 300. See Cal. Bus. & Prof. Code §§ 24,200(a), 25,601 (West 1935) (prohibiting a licensed establishment to become a place "in which people abide or to which resort for purposes which are injurious to the public morals"). After World War II,this law was applied by the California Board of Equalization to close down San Francisco's Black Cat Cafe because .persons of known homosexual tendencies used it as a meeting place." Stoumen v. Reilly, 234 P.2d 969 (Cal. 1951).

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World War 100' Before 1946, not a single judge questioned this policy, which symbolically associated the homosexual not only with his longtime colleague the prostitute, but insisted that both the homosexual and the prostitute shared the "ill repute" of gangsters, swindlers, and other violent thugs. Like police raids, license suspensions were episodic efforts not only to suppress gay culture from public view, but also to disrupt normal socialization among people considered sublegal. The two mechanisms worked hand in hand when a jurisdiction engaged in a campaign of moral or public cleansing. For example, when New York police were directed to "clean up" the city prior to the 1939 World's Fair, a key move was to close gay bars through harassment of patrons, raids, and license suspensions or revocations. Because it had such a visible subculture, New York, as usual, led the way, and other jurisdictions followed, most of them after the war. San Francisco, the home of an equally impressive gay subculture, followed New York's example during the war. In May 1943, the police, liquor authorities, and military officials cooperated in a campaign to eradicate the gay bar culture in San Francisco, in order to "protect servicemen" who were stationed at the Presidio.0 2 The first wave drove all the six or seven gay bars out of business through a combination of police and liquor regulatory pressure. When gay patrons simply took their business elsewhere, undercover cops sought out their new locales and raided them. After the homophile crowd appropriated the Top of the Mark as their new stomping grounds, the authorities finally gave up-but only after fifty suspected homosexuals were arrested, several lesbians and gay men were injured in street brawls with police, and about ten establishments had been driven out of business.

6. The Military Exclusion of Homosexuals By 1921, the Army had in place a comprehensive policy for excluding and court-martialing "degenerates" and "sodomists" who engaged in same- sex intimacy. During the relatively isolationist years of the 1920s and 1930s, issues of same-sex intimacy in the military were not prominent. The main debate was an internal one within the War Department. Psychiatrists

301. See 1956 Va. Acts ch. 521 (providing for license revocation if an establishment becomes "a meeting place or rendezvous for users of narcotics, drunks, homosexuals, prostitutes, pimps, panderers, gamblers, and habitual law violators") (codified at Va. Code Ann. § 4-37(a) (2) (c) (Michie 1958)); Mich. Liquor Control Comm'n, Administrative Rule 436- 3, discussed in Bdrubd, supra note 4, at 356 (prohibiting bars from serving liquor to homosexuals); see also § 17(h), 1949 Tex. Gen. Laws 543 (prohibiting "entertainment, performances, shows, or acts that are lewd or vulgar" and "solicitations of persons for immoral or sexual purposes or relations" in licensed premises) (codified at Tex. Penal Code art. 667, § 19B(g), (h)). There was even similar regulation at the local level. In 1954, Miami adopted an ordinance making it unlawful for a licensed establishment to employ, serve, or allow to congregate "homosexuals, lesbians, or perverts." Miami, Fla., Code § 51-35 (1954). 302. The New York and San Francisco campaigns are described in Bdrubd, supra note 279, at 210-12.

HeinOnline -- 82 Iowa L. Rev. 1086 1996-1997 REGULATION OF SAME-SEXINTIMA CY, 1880-1946 1087 argued that "sodomists" (the department's old-fashioned term) should not be imprisoned as criminals but instead treated for their dysfunctional homosexuality, while the lawyers in the Judge Advocate General's office insisted that sodomists were properly criminals who should be court- martialed rather than coddled in hospitals."3 Although the top officials held firm to the formal policy of criminalization, it was not vigorously enforced.0 4 Between 1904 and 1939, the Navy conducted only 224 court- martial trials for sodomy, including the two dozen involving the Newport sailors in 1919-1920.3°' Section 8 of the separation regulations ("inaptness or undesirable habits or traits of character") was the mechanism by which most sodomists were usually drummed out of the service, albeit apparently in unimpressive numbers. On the eve of World War II America reinstituted the draft, and issues of exclusion reemerged. As same-sex intimacy was once more debated within the War Department, a pseudo-Freudian understanding of treatable orientation gradually came to dominate the Krafft-Ebing degeneracy theory and the older idea of sodomists as criminals, each of which had been adopted as official policy by 1921. Drs. Harry Stack Sullivan (himself homosexual) and Winfred Overholser, both schooled in the Freudian approach to psychoanalysis, were the psychiatrists who initially organized the military's wartime exclusion of homosexuals. Shortly after Congress enacted the conscription act in 1940, Sullivan and Overholser persuaded the Selective Service to screen inductees for psychiatric as well as physical problems; such screening would save millions of dollars in treatment costs and could avoid the difficulties of having unsuitable men in uniform.0 0 Drafted by Sullivan, Medical Circular No. 1 was issued by the Selective Service on November 7, 1940, explaining psychiatry to the 30,000 volunteer physicians at local draft boards; homosexuality was not mentioned. Pressured by other psychiatrists, the Service revised the Circular on May 19, 1941 to include "homosexual proclivities" in the list of disqualifying "deviations." The Army listed "homosexual persons" among those to be rejected because of "psychopathic personality disorders." 0 7 The Navy sought to screen out people "whose sexual behavior is such that it would endanger or disturb the morale of the military unit." Thus, even before the United States entered World War II, the Selective Service, Army, and Navy

303. See Memorandum from the judge Advocate General to the Adjutant General 4-6 (Oct. 16, 1931), discussed in Berubd, supra note 4, at 133. 304. SeeWilliam Menninger, Psychiatry in a Troubled World 268 (1948). 305. See Frederick S. Harrod, Manning the New Navy: The Development of a Modem Naval Enlisted Force, 1899-1940, at 196-97 (1978). Brub6, supra note 4, at 330 n.47, found 34 cases in the Army between July 1938 and May 1941, suggesting that the rate may have picked up in the late 1930s or on the eve of World War II. 306. See Bdrub6, supra note 4, at 8-33. 307. See War Dep't, Circular Letter No. 19, Neuropsychiatric Examination of Applicants for Voluntary Enlistment and Selectees for Induction (Mar. 12, 1941), reprinted in War Med., May 1941, at 418, 418-25, and discussed in Brubd, supra note 4, at 12.

HeinOnline -- 82 Iowa L. Rev. 1087 1996-1997 1088 82 IOWA LAWREVIEW [1997] were prepared, for the first time in U.S. history, to screen and exclude applicants or draftees for homosexuality. In 1941, Sullivan and Overholser initiated the second phase of their plan: to train doctors and psychiatrists to apply the new guidelines for mental screening of inductees."' 8 The discourse of the lecturers was a strange mixture of the old-fashioned and the modem (as of 1941): "homosexuals" were described mainly through the argot of "mental illness" and "sexual psychopathy" that had already been deployed in state crime control statutes, censorship debates, and immigration handbooks. Homosexuals were considered "psychopaths" who were unable to control their sexual desires and hence would be troublemakers. They were "paranoid" personalities, too introverted or repressed to adjust to the give- and-take of military life and the stress of combat situations. They were too effete or "sissy" to become good soldiers or to be accepted by their comrades. Lecturers were uncertain about how doctors could "diagnose" such "homosexuals" upon a physical examination. Some clues were imparted, however: an inductee's discomfort with displaying his nude body, his curiosity or embarrassment about masturbation, or possible admissions of awkwardness around women. Such men, the lecturers insisted, were subject to "homosexual panic" and could be excluded.3 0' Sullivan never completed this second phase, in part because the Service feared that local draft boards would consider the psychiatric talk too weird, and the new Director, Major General Lewis Hershey, thoroughly distrusted this "science." Sullivan resigned in protest in November 1941, when Hershey eliminated separate psychiatric examinations at the local boards. Overholser, however, continued to advise the Service and worked a paragraph on "Sexual Perversions" into the 1942 revisions of the Army's mobilization regulations.3 '0 These regulations, published in final form in 1943, were in place for the remainder of the war. The regulations were not as sophisticated as the work Sullivan had attempted (degeneracy theory made a comeback), but they did focus the military exclusion on homosexuality as well as homosexual conduct. "Persons habitually or occasionally engaged in homosexual or other perverse sexual practices" were "unsuitable for military service" as was anyone having "a record as a pervert." "Homosexuals" could be recognized by "feminine body characteristics" or "effeminacy in dress and manner" or "patulous [expanded] rectum." The regulations rejected physically "normal" but

308. See Bdrubd, supranote 4, at 14-18. 309. Psychiatrist Douglas Thorn told one seminar that a homosexual might ask an examiner. "Is it true that masturbation makes one crazy? Can people tell? Why do I get embarrassed with women? What attracts me to men, especially when I have been drinking? Why have I been approached by so many 'fairies'? ... I know I am not a 'he man.'" Bdrubd, supra note 4, at 17. 310. See War Dep't, Mobilization Regulations Nos. 1-9, Standards of Physical Examination During Mobilization § 20(93)(h) ("Sexual Perversions," a subcategory of "Psychoses, Psychoneuroses, Personality Disorders"); see also Bdrul, supra note 4, 19-20.

HeinOnline -- 82 Iowa L. Rev. 1088 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1089 personally "effeminate" men because they "would become subject to ridicule and 'joshing' which will harm the general morale and will incapacitate the individuals." This decision to medicalize homosexuality combined with the draft to bring thousands of men (but not women, until 1944) under scrutiny. For almost all the young men, the induction interview was the first time in their lives they were asked, even if indirectly, to identify their sexual orientation. Most of the homosexuals lied, and the medical examiners believed them or acquiesced in their lies.3 1 ' As a character in a Christopher Isherwood war novel put it, "All you have to do is to tell them you're queer, and you're out. I couldn't do that, though. Because what they're claiming is that us queers are unfit for their beautiful pure Army and Navy-when they ought to be glad to have us." 3 1 2 Lesbians were not even required to lie, as they were normally asked no questions about their sexual orientation until the end of the war.31 3 Thus, although eighteen million Americans were inducted into military service during the 3war,1 4 only four or five thousand were explicitly rejected for "homosexuality." As a large number of gay people were not detected by the porous gatekeepers, the armed forces also developed, for the first time, policy documents dealing specifically with homosexuals in service. Under their therapeutic approach, the psychiatrists emphasized that instruction of soldiers and officers was the best way to prevent trouble. For example, the Women's Army Auxiliary Corps (WAAC) developed a series of sex hygiene lectures for officer candidates, including a lecture on homosexuality. The lecture recognized that, in the great stress of war and inevitable female camaraderie, women might form "an intimacy that may eventually take some form of sexual expression. " 31s If the officer discovered that a woman under her command had fallen into "homosexual practices," the officer was instructed to respond with sympathetic guidance and administrative supervision (as by separating or transferring two women). The most overt and disruptive lesbian "addicts" were supposed to be discharged. Although the medics and psychiatrists emphasized a therapeutic

311. Even the homosexuals who confessed their sexual orientation were sometimes excluded for another, make-weight reason by examining physicians desiring that the men avoid the stigma that an official record of "homosexuality" would entail. See Bdrubd, supra note 4, at 26-27 (schoolteacher Raymond Myers confessed his homosexuality to examining physician, who excluded him for another medical reason so that Myers would not lose his job); Vining, supra note 226, at 213-14, 216, 224, 226-27 (cooperative examiner first classified Vining "sui generistic 'H' overt" but was forced to a more explicit reason for rejecting Vining: "homosexualism--overt"). 312. Christopher Isherwood, The World in the Evening 265-66 (1952). 313. See Brub, supra note 4, at 28-29. 314. See id. at 33 (citing to internal War Department memoranda). 315. War Dep't, Pamphlet No. 35-1, Sex Hygiene Course, Officers and Officer Canidates, WAAC (May 27, 1943) (Lecture V: Homosexuality), discussed and quoted in Allan Bdrub6 & John D'Emilio, The Militay and LesbiansDuring the McCarthy Years, 9 Signs 759, 761 (1984).

HeinOnline -- 82 Iowa L. Rev. 1089 1996-1997 1090 82 IOWA LAWREVIEW [1997] approach to issues of homosexuality, the lawyers and top brass in the War Department continued to emphasize a punitive approach well into the war. The first major policy statement, issued on the eve of the war, was a departmental memorandum rebuking commanders who had been discharging "Sodomists" under Section 8 rather than subjecting them to court-martial and imprisonment (the Newport procedure),3'r This reaffirmation of a punitive policy failed to resolve the matter, for psychiatrists assailed it as ridiculously old-fashioned, commanding officers complained that court-martials were too slow and procedurally complex to be effective in getting "perverts" out of their units, and prison wardens objected that homosexuals had no place in their institutions and were just contributing to overcrowded conditions. Psychiatrists in the Surgeon General's office educated the lawyers and through an arduous process of negotiation persuaded the department to rethink the matter. In January 1943, the Army rescinded the 1941 memorandum and issued a new one to deal with "sodomists." 17 Although the "sexual pervert-the true sodomist" was still supposed to be court-martialed, the new directive allowed separation under Section 8 for the sodomist who acted out of an "inherent and/or acquired constitutional defect" that rendered him "not susceptible to ordinary human motives," and further provided that "where the evidence indicates that he is not a confirmed pervert, the policy is generally to reclaim the individual to the service if he otherwise possesses a salvage value." In the same month, the Navy adopted its first policy for dealing with "homosexuals" (not "sodomists" as the Army continued to say). 3's Hewing a careful line between the medical view of homosexuality as a disease and the popular view of sodomy as a crime, the Navy allowed "habitual homosexuals" to be discharged under Section 8 but refused to create a category of reclaimable homosexuals, as the doctors urged. By focusing on homosexual orientation rather than sodomy, the Navy also found it easy to include the "Women's Reserve" in its regulations. The doctors continued to press for a therapeutic rather than punitive approach. In an influential 1943 memorandum, the Surgeon General posited that homosexuality should be dealt with as a medical rather than purely criminal matter and made the following recommendations: It is now generally accepted that normal individuals pass through a period which is primarily homosexual, at least at the

316. See Memorandum from the Adjutant General to the Commanding Generals, Sodomists (July 15, 1941), discussed and quoted in Bdrubd, supra note 4, at 131. 317. Adjutant General's Office, War Dep't, Memorandum No. W615-4-43, Sodomists (Jan. 10, 1943), reprinted in Army Med. Bulletin No. 66, at 84-85 (Apr. 1943). 318. See Letter from Frank Knox, Secretary of the Navy, to All Ships and Stations, Procedure for the Disposition of Homosexuals Among Personnel of the U.S. Naval Service (Jan. 1, 1943), reprinted in Report of the Board Appointed to Prepare and Submit Recommen- dations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuals 373-75 (1957) (the "Crittenden Report").

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psychological level, but which under suitable conditions is replaced by a normal heterosexual sphere of interest. It is well known, however, that some individuals do not develop beyond a homosexual level. Further, it is known that under suitable conditions many persons considered normal may revert to a homosexual level and may engage in homosexual practices. Of these groups, some will seek out others of a like make-up while a few, like the rapist, will, if necessary, resort to violence to compel submissions to their demands. In the case of this latter small group, penal treatment is clearly indicated; the rights of others are so clearly violated that no other course can be tolerated. Homosexual activities, accompanied by coercion of a mental or physical nature, and those... directed towards minors, are proper subjects for penal treatment, provided that the defendant is found to be legally responsible. In the case of homosexuals who engage in their chosen sexual activities with those of like taste who, far from resisting, may seek such gratification, the violation of individual rights is rather remote. It is, however, recognized that a known homosexual in an organization may seriously impair the morale of the organization.1 9 This policy substantially prevailed when the War Department issued Circular No. 3 in January 1944. Entitled Homosexuals, rather than Sodomists, the memorandum rejected a criminal approach of court-martial in favor of the psychiatrists' therapeudic approach of treatment and reclamation. Specifically, Circular No. 3 directed separation rather than court- martial, even for the "true or confirmed homosexual not deemed reclaimable." 29 For the "reclaimable" homosexual whose misconduct was not aggravated by independent offenses such as rape, the policy was hospitalization and treatment. The category of reclaimables was expanded to include not just "normal" men who had been seduced, but also the "true or confirmed homosexual [s]" whose "cases reasonably indicate the possibility of reclamation." The circular did not address the increasingly important issue of the serviceman who confessed to "homosexual tendencies" but had done no unlawful acts. The Navy in 1944 directed that its Bureau of Naval Personnel could agree to separate these people if they signed a written confession. In 1945, the Army's policy was that "[t]he mere confession by an individual to a psychiatrist that he possesses homosexual tendencies will not in itself constitute sufficient cause for discharge," but instead required hospitalization and further evaluation. 2'

319. U.S. Army Surgeon Gen., Army Bulletin No. 66, Disposition of Overt Cases of Homosexuality (pt. E), at 83 (Apr. 1943). 320. The Adjutant General's Office of the War Department made it clear that even the .confessed homosexual" should not be separated unless there were "adequate evidence of an existing psychological maladjustment rendering the individual inadaptable for service resulting from the homosexual tendencies." 321. See U.S. War Dep't, Army Regulation No. 615-368, Enlisted Men: Dis-

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The effect of the new policy focus on homosexuals was complex. One was to deemphasize court-martials for sodomy. Where the Army reported fifty-two sodomy prosecutions in September 1943, it reported only eleven in April 1944, as a direct consequence of Circular No. 3.22 This was good news for gay personnel, but the broader implications of the therapeutic policy were not. Because sodomy was notoriously difficult to prove (especially if consensual) and required lengthy formal proceedings, the old punitive policy was bound to catch fewer homosexuals than the newer policy, which left much discretion with company commanders to summarily ship personnel off to a hospital for treatment. According to Allan B6rub6, more than four thousand sailors and five thousand soldiers were hospitalized and dismissed from service as "homosexuals" between 1941 and 1945, figures that understate the matter, because many homosexuals were discharged for other reasons by humane psychiatrists. Even these conservative figures reflect far bigger haul than the hundreds debarred for sodomy in the four previous decades.35 3 Additionally, the new system's focus on desire rather than just acts created new room for regulatory cat- and-mouse games: malingerers could more easily avoid military service, celibate homosexuals were newly at risk, and all personnel-straight and gay and undecided-were under pressure to prove their legal status by daily performances of heterosexuality. The new medical focus also established a firmer basis for investigating the female as well as male homosexual. Because criminal sodomy, long the military's primary concern, focused on the penis (alright if it went in the vagina, criminal if it strayed elsewhere), it was not a crime associated with women. Degeneracy was associated with women, but typically with prostitutes. Once the military shifted its focus from acts to desires, however, women came under sharp regulatory examination. Indeed, the first prominent armed forces investigation since Newport was the War Department Inspector General's investigation of the Women's Army Corps training camp at Fort Oglethorpe in the spring of 1944.34 The investigation was triggered by a letter from Mrs. Josephine Churchill, complaining that Fort Oglethorpe "isfull of homosexuals and sex maniacs," one of whom had molested her "little [twenty-year old] girl" and who "will continue to use her spell over other innocent girls who join up with the W.A.C." The investigation by Lieutenant Colonel Birge Holt and Captain Ruby Herman concluded that Fort Oglethorpe was not "full of homosexuals and sex maniacs," but that several female couples were charge-Undesirable Traits of Character 2.b.2V2 (as amended Apr. 10, 1945). 322. See Bdrubd, supra note 4, at 146 (Judge Advocate General believed that the reduced statistics could "reasonably [be] traced" to Circular No. 3). 323. See id. at 147. 324. The account that follows is taken from Report of Lieutenant Colonel Birge Holt & Captain Ruby Herman to the Acting Inspector General (July 29, 1944) (available at the National Archives, Suitland, Md., Record Group 159 (Office of Army Inspector General), File 333.9 (Third WAC Training Center)) [hereinafter Holt/Herman Report].

HeinOnline -- 82 Iowa L. Rev. 1092 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1093 carrying on homosexual affairs. They recommended treatment for five women and separation for only one. The Fort Oglethorpe investigation reflects the substantial transition that had been made between 1880 and 1945, from a focus on the sodomite to a focus on the homosexual in the state's regulation of same-sex intimacy. The modernization and secularization of state policy involved the following conceptual shifts: from Bible-based natural law thinking to medicine-based functional thinking, from sexual act to sexual orientation, from an exclusively male-centered understanding of sexuality to one that considered women as sexual actors as well. The Fort Oglethorpe investigation reveals, however, that these shifts were never clear-cut breaks. That is, the sodomite and the invert and the homosexual were all relevant, and perhaps overlapping, paradigms for the investigators. In the Fort Oglethorpe investigation, the authorities were unwilling even to refer women to treatment as lesbians unless they were persuaded that the women were homosexual in orientation and had engaged in "unnatural acts" with one another. Also, in 1944, the "real perverts," the ones who should be discharged in the opinion of WAG psychiatrist Captain Alice Rost, were those who were sexually interested in and pursued just women, had sex with women, and engaged in cross-gender behavior (i.e., dressing in men's clothing).32

III. THE ROLE OF LAW IN THE CONSTRUCTION OF DEVIANT SEXUALriY The foregoing account follows a standard legal realist path, in which law is an echo of socio-economic and ideological developments in the society at large. The conceptual scheme of Parts I and II maintains that society's concerns about same-sex intimacy evolved from disgust with unnatural acts to disapproval of congenital gender inversion to fear of diseased sexual orientation. These concerns created specific categories of disapproved people-the sodomite, the sexual invert, and the homosexu- al-who fit into yet broader categories of disapproved people-the heretic, the degenerate, and the psychopath. Parts I and II analyze shifts in legal regulation through the lens of concepts and chronologies developed by historians Carroll Smith-Rosenberg, Estelle Freedman, and Allan

325. Holt asked Rost whether it were not true that "[s]ome of these women are real perverts, that is, that they engage in most abnormal practices"? Rost responded: "The two girls we had here fell into that category. One always dressed in male clothing before she got into the Army, and she danced with girls, and we had a number of photographs in affectionate poses with the girl, and she was wearing male clothing. We also had a report that she was arrested because somebody saw the figure in male clothing enter the girls' lavatory and she was arrested on suspicion that she was a man. That girl was definitely abnormal in her whole make-up and she was definitely abnormal in her emotional tendencies, because all her interests centered on girls." Holt/Herman Report, supra note 324 (quoting Captain Alice Rost).

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2 Bdrub6.11 What the historians have emphasized less, and what law professors ought to address, is a reversal of traditional realist analysis. Rather than asking how law reflects larger social changes, consider how law contributes to larger social changes. 27 How, for example, has law influenced the social creation of sexuality in the twentieth century? Has the sexuality law helped to produce been a productive one? To analyze these issues conceptually, this part starts with the social constructionist theory of philosopher Michel Foucault 2 s Denying both the Victorian and Freudian conceptions of sexuality as a "natural force" which society needs to control (Victorians) or emancipate (Freud), Foucault maintained that sexuality itself is a "historical construct," a "great surface network in which the stimulation of bodies, the intensification of pleasures, the to discourse, the formation of special knowledges, the strengthening of controls and resistances, are linked to one another, in accordance with a few major strategies of knowledge and power." 2 This insight suggests the possibility that legal discourse can itself contribute to the social formation-not just the regulation-of sexuality and gender. The first Section of this Part will demonstrate how law contributed to this construction, largely through a process of normalization, whereby even prohibitory laws contribute to the creation of positive social norms. Normalization is a powerful conceptual tool, for it makes clear how laws targeting homosexual men could affect lesbians and other women. Foucault rejected the usual lawyers' view that power flows from the "top down," from officials ordering the populace to do thus and such. Instead, Foucault understood power as flowing from the "bottom up" and characterized it in the following way: It seems to me that power must be understood in the first instance as the multiplicity of force relations immanent in the sphere in which they operate and which constitute their own organization; as the process which, through ceaseless struggles and confronta- tions, transforms, strengthens, or reverses them; as the support which these force relations find in one another, thus forming a chain or a system, or on the contrary, the disjunctions and

326. See Bdrubd, supra note 4; Smith-Rosenberg, supra note 4; Freedman, supra note 192. 327. See Ellen Ross & Rayna Rapp, Sex and Society: A Research Note from Social History and Anthropolog, in Sexuality, Gender, and the Law (William N. Eskridge, Jr. & Nan D. Hunter eds., 1997). This enterprise has been initiated in the literature by Bdrubd, supra note 4, especially its discussion of military interrogations, and by Chauncey, Gay New York, supra note 4, especially its last chapter. 328. See 1 Foucault, supra note 4 (introduction); McIntosh, supra note 4, at 182-93, reprinted in The Making of the Modem Homosexual 30-49 (Kenneth Plummer ed., 1981), and in Forms of Desire: Sexual Orientation and the Social Constructionist Controversy ch. 3 (Edward Stein ed., 1990). See the discussion in Sexuality, Gender, and the Law, supra note 327, ch. 3,§ 2. 329. 1 Foucault, supra note 4, at 105-06.

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contradictions, which isolate them from one another; and lastly, as the strategies in which they take effect, whose general design or institutional crystallization is embodied in the state apparatus, in the formulation of the law, in the various social hegemonies.33 The second Section of this Part explores the way in which law helped create power relationships through its deployment of scientific classifications such as "invert" and "homosexual" and of dividing practices that set these people apart from the masses and acted upon them. Although the rhetoric of these dividing practices was reformist and progressive, the result was an objectification that permitted untold brutalities to be visited upon the sodomite, the invert, and finally the homosexual. This Section also takes up Reva Siegal's thesis that when authorities modernize the justifications for old-fashioned exclusions and punishments, they thereby strengthen those exclusions and punishments. Once scientific classifications and legal categories turn human beings into regulatory objects, Foucault maintained that at some point the human beings are prone to resist and to reclaim their places as subjects. The process of subjectification might be framed as well as motivated by the categories and classifications that had objectified the resisters, however, and Foucault himself looked forward to the era when sexuality would cease to be an obsessional and hysterical identity feature or regulatory category. The final Section of this Part deploys Foucault's subject-object-subject dynamic as a way of thinking about the morphogenesis of the "closet" as the homosexual's refuge and her prison. If the figures depicted at the beginning of this Article, Alice Mitchell and Ralph Werther, lived a "double life," as they called it, the ones at the end found themselves trapped in a closet. Where the law contributed little if anything to the double life, it was key to both the construction, and later the deconstruction, of the closet for lesbian and gay Americans.

A. Normalization The lines drawn by legal categories and classifications serve two complementary functions: they disapprove and exclude (stigmatization), and they approve and encourage (normalization). Usually, law stories concentrate on stigmatization, but it is often more useful to focus on the normalization. The account in Parts I and II of this Article was told as a series of stigmatizations: prohibiting or discouraging unnatural acts (sodomy), then gender nonconformity (inversion), and finally sexual deviation (homosexuality and other perversions). The same story can be told as a series of normalizations. When unnatural acts, fornication, and adultery were stigmatized, the law was normalizing procreative sex within marriage. When gender nonconformity, especially prostitution and cross- dressing, was stigmatized, the law was normalizing traditional gender roles, where the man is the public actor and the woman the private nurturer.

330. 1d at 92-93.

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When homosexuality was stigmatized, the law was normalizing heterosexu- ality, making it compulsory for our society. The history of legal regulation of same-sex intimacy, therefore, reveals shifting regimes of normalization. The traditional regime, stigmatizing nonprocreative sex, was destabilized by urbanization and America's evolution toward a middle-class consumerist society, where sex for pleasure was not only a more viable option, but a popular item of consumption. Admittedly, the law was deployed to resist this idea of sex-as-pleasure: not only did the sex-nervous state ban sodomy, fornication, adultery, and prostitution, but it also banned contraceptives and abortions which would have freed women (and men) from the costs of pregnancy when they engaged in vaginal sex. Although these laws tangibly retarded sexual activity between men and women for a period of time, they fell under the legal assaults of the birth control movement. Partly through the auspices of legal struggle, therefore, the norm of procreative sex within marriage decisively faltered in the twentieth century. The question has been what norm will replace it. In the 1920s, the most popular candidate was companionate marriage between a masculine, breadwinning man and a feminine, housekeeping woman. The law provided some support for this ideal by rewarding marriage with an increasing array of collateral benefits, rendering marriage hard to exit through the requirements of fault and post-divorce alimony and support obligations, and censoring gender-bending from the public culture. The censorship laws, as applied, sought to obliterate evidence that women could initiate companionate relationships with one another, and this was the reason The Well of Loneliness was banned by the Customs Service, the New York police, and Magistrate Bushel. Conversely, such censorship encouraged demonization of the "vampire lesbian," as a negative message to all women that they needed companionate marriage to a man. The relationship between normalization and stigmatization was clear in Clemence Dane's 1917 novel, Regiment of Women. The lesbian teacher Clare Hartill was accused of seducing a younger teacher, Alwynne: Alwynne needs a good concrete husband to love, not a fantastic ideal that she calls friendship ... . You are doing her a deep injury.... I tell you, it's vampirism. And now you are to take

Alwynne. And when3 3 she is squeezed dry and flung aside, who will the next victim be? 1 Clare responded, "Thank God there are some women who can do without marriage-marriage-marriage" 3 3s2 The surresponse: "Poor Clare! Are the grapes very sour?"333 Thus exposed, Clare was left to a lonely, partnerless existence as an old maid. Notwithstanding the reassurances of law and literature, the increasing

331. Dane, supra note 239, at 336-37. 332. Id. at 338. 333. Id

HeinOnline -- 82 Iowa L. Rev. 1096 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1097 economic and social independence of women-a phenomenon to which the state contributed by assuring women of contractual and economic independence-undermined this gendered understanding of companion- ate marriage. The availability of Nevada divorces as early as the 1930s further undermined marriage by making it easier to exit. In a world of New Women and alternatives to marriage, the fallback norm was compulsory heterosexuality: the well-integrated Freudian personality required intimacy with someone of the opposite sex. To establish that norm, the lesbian and the gay man were necessary scapegoats. Compulsory heterosexuality came of age during World War II, when men (on the battlefront) and women (some on the battlefront, most on the homefront) were thrust into homosocial settings and the state winked at sex outside of marriage and even same-sex intimacy, so long as people were just fooling around. War was a crucible that broke down many of the old taboos: oral sex proliferated in the barracks, and gender-bending was not only tolerated but sponsored by the armed forces, which produced drag shows as entertainment on the front."M These breakdowns empowered psychiatrists in their diacritical struggle with lawyers to refocus the military exclusion onto sexual orientation rather than sodomy or inversion. Normalization makes clearer how laws against sodomy, which were mainly enforced against men, could also be antifeminist. It is easy to miss the connection when the focus is stigmatization: sodomy prohibitions fixated on the male penis and were overwhelm- ingly enforced against men, and often against men who were aggressively violating rules of consent. When the focus is normaliza- tion, it is easier to see how laws against sodomy, prostitution, cross- dressing, degeneracy, contraception, lewd vagrancy, and obscenity all fit together to present a gendered agenda that contributed to keeping women in their places. The woman who cannot sell her sexual services, use contraceptives, love another woman, or dress in men's clothing is a woman who is being pressed into a traditional gender role of wife, mother, and housekeeper.Y5 On the other hand, normalizing discourse operated differently upon men than it did upon women. It limited the sexual liberty men desired but impeded gender equality desired by women. Men were considered sexual actors, and it was they who were interrogated, harassed, and arrested for sodomy, oral copulation, public indecency, disorderly conduct, lewd vagrancy, white slavery, rape, and seduction. Legal regulation of same-sex

334. See BdrubC, supranote 4. 335. Conversely, sodomy laws need not be antifeminist. For example, if sodomy laws were only used against rapists and child molesters, which was the direction in which New York City was heading by the 1940s, such laws could reinforce a feminist regime normalizing sexual mutuality.

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intimacy deprived men of few economic or social privileges but did threaten their reputations, liberty, and physical safety. Starting out with many fewer economic and social opportunities, women found legal rules to be impediments to their independence from or equality with men. After the prostitute, the "lesbian" was held up as the nightmare consequence of women's independence, and her negative example normalized the gendered household and helped make it more secure than the world of the New Woman. The discourses of sexual inversion (1880-1921) and homosexuality (after 1921), therefore, were antifeminist in ways that old-fashioned sodomy discourse was not. The medicalization which yielded inverts and homosexuals as objects of control was more centrally interested in controlling the bodies of women, by prohibiting abortion and contracep- tion, by valorizing marriage to a man, and by demonizing same-sex intimacy with other women. This Article's account exemplifies Reva Siegal's argument, developed in her study of law's (un)regulation of wife- beating: when traditional power arrangements-most centrally, men's power over women-come into question, the holders of power will expropriate the language of "reform" to justify the arrangements in terms of the new discourse.33 6 The history told here is more ambivalent about Siegal's further thesis, that the modernized justification renders the power arrangement "stronger" than it was before. At least as to same-sex intimacy, the matter is complicated, as the next sections will reveal.

B. Outlaw Sexuality Law is just one of many sources of discourse that contribute to normalization,"'7 but it is central to another process: the construction of power relationships. Legal rules are usually viewed in terms of the obligations they impose upon citizens or institutions, but a duty imposed on one person usually carries with it privileges for anothersss Thus, state regulations prohibiting homosexual sodomy, cross-dressing, and same-sex solicitation or cruising should not be analyzed simply as limiting gay people's freedom of action, but also as empowering other people and creating a social dynamic with consequences for homosexual and homophobe alike.

336. See Reva B. Siegal, "The Rule of Love": Wife Beating as Prerogativeand Privacy; 105 Yale LJ. 2117 (1996). 337. Others include the family, churches (decreasingly important in this century), and the media (increasingly important). The law is less important for most issues than the family and the media but in turn helps shape the other discursive sources, and the modem regulatory state is now the forum in which the other sources engage in their diacritical struggles. And state-sponsored norms are often the most easily accessible focal points around which an equilibrium might form. 338. See Wesley Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, and Other Legal Essays (1919); Arthur Corbin, Legal Analysis and Terminology, 29 Yale LJ. 163 (1919).

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Recall Ralph Werther, the 1890s androgyne. The prohibitions of New York's sodomy, vagrancy, masquerade, and disorderly conduct laws did not prevent Werther from cruising and having sex with trade, but those laws did strongly affect the nature of Werther's sexual activities by, literally, rendering him a sexual outlaw. The obvious implication of his outlaw status was that Werther was continually at the mercy of military and civilian police officers. Furthermore, because the laws were vague, the "officers of the law" had complete discretion to treat the fairy in any way they desired. They could ignore, arrest, smack, kick, or extort money out of him. If they arrested the fairy, they had a menu of choices as to what crime and what period of temporary incarceration should be imposed upon the accused. As prostitution laws taught, and as Prohibition was soon to confirm, this was a recipe for police corruption as well as abuse." 9 Not only were police able to shake down the homosexual for money, but some were said to shake them down for sex. Peter R., one of the "sex variants" studied by George Henry in the 1930s, reported that police in New York and other cities demanded sex from him and, on at least one occasion, arrested him for vagrancy when he refused.340 The same phenomenon held for the WACs investigated at Fort Oglethorpe. They were completely at the mercy of the Army's psychiatric gendarmerie. That Dr. Alice Rost in 1944 was much more merciful than Ervin Arnold and the Newport team had been in 1919 was not only adventitious but temporary. The next wave of (mostly male) witch hunters were free to impose new standards on suspected lesbian service personnel, and in the 1950s they hunted lesbians mercilessly. Later witch hunters were not only merciless but predatory, demanding sex in return for silence or even fabricating charges of lesbianism if rebuffed by women uninterested in their sexual attention.34' Not only were inverts and homosexuals at the mercy of state police, psychiatrists, and censors, but their outlaw status opened them to private control and violence as well. Because women did not engage in the public cruising that men did, they did not encounter the police officer nearly as

339. Cf.Mayne (Edward Stevenson), supra note 44, at 473 (Berlin's chief of police favored sodomy repeal because the law "encouraged crime and roguery in men of his squads" who blackmailed sodomites in return for not arresting them). 340. See Henry, supra note 226, at 474. 341. Women in the military regularly encounter sexual advances and harassment from men. If they rebuff the advances or (worse) complain about them, they risk being labeled lesbians. Women have responded in various ways: submitting to at least some unwelcome advances, acquiring phony boyfriends or even husbands to deflect advances, resigning from the service, and resisting the advances and complaining. The last strategy, of resistance, risked a full-fledged investigation of the woman's own sexual orientation. See Policy Implications of Lifting the ban on Homosexuals in the Military: Hearings Before the House Comm. on Armed Servs., 103d Cong. 16-17 (1993); Shilts, supra note 165, at 326-30, 352-55, 470-71, 558- 61 (other examples of lesbian-baiting as a way for men to harass servicewomen with impunity); Michelle M. Benecke & Kristin S. Dodge, Military Women inNontraditionalJob Fields. Casaultiesof the Armed Forces' War on Homosexuals, 13 Harv. Women's Lj. 215 (1990).

HeinOnline -- 82 Iowa L. Rev. 1099 1996-1997 1100 82 IOWA LAW REVIEW [1997] often. Against them, the law empowered their parents and their prospective husbands. There is reason to believe that Freda Ward reciprocated Alice Mitchell's love, but the stigmatized nature of that love empowered Ward's family to remove her from Mitchell's orbit, with tragic consequences for both women. In The Well of Loneliness, Stephen Gordon renounced her love for Mary so that Mary could marry a man, a husband who could provide her with the normal life Stephen could not. The investigations at Fort Oglethorpe were triggered by the complaint of Mrs. Josephine Churchill, a parent who was seeking to crush the incipient lesbianism of her twenty-year-old "child" and to redirect her daughter's energies toward marriage to a man. The Fort Oglethorpe investigators were literally acting in loco parentis when they interrogated the WACs into complete submission to the heterosexual ideal. Only the one woman deemed unreclaimable by male-female marriage was discharged, and the others were certified as wife material and permitted to remain in service. If the law subjected women to parental and spousal control, it more typically subjected men to control and violence from strangers. Werther tells this story: I happened to be one evening seated alone on a park bench. Several of my enemies discovered and surrounded me. Very much frightened I attempted to leave, but they would not permit it. They stuck pins into me, inflicted slight bums with lighted matches, and pinched me unmercifully, particularly the penis. There were policemen within hailing distance, but I was told I would be arrested if I called for help. I was innocent, but the police would have believed this false testimony against me of a half-dozen accusers. When satisfied with wreaking their vengeance, they turned me over to a policeman with charges, but he simply ordered me out of the park. 2 This episode is hardly the worst he recounted; others involved gang rape and robbery, as well as beating. "A fairie is often thus treated by cruel, lecherous adolescents, since they know he is an outlaw and cannot bring them to justice." 4 3 In other words, the law not only empowered thugs, but its focal qualities actually encouraged or pressed their activities in particular directions. This became only more marked after World War I. First-person accounts of homosexuals in the 1930s are replete with stories of fear and uncertainty about their objects of desire, and the way the law empowered those objects to abuse, rob, and beat the homosexual."

342. Lind (Ralph Werther -Jennie June), Autobiography, supra note 2, at 132. 343. Id. at 135. See id. at 132, where Werther remarks that adolescents "looked upon a fairie as necessarily a monster of wickedness-for why otherwise would the law place upon his sexual conduct a penalty of ten years in state prison?" 344. See, e.g., Henry, supra note 226, at 115 (Nathan T., robbed by tricks, beaten up when he was an adolescent); id. at 154 (Eric D., complaining about how homosexuals are the ones .preyed upon because they are timid and don't wish to bring in the aid of the law"); id. at 330 (Irving T., robbed and raped by tricks because he and the thugs both knew he had no legal recourse); Vining, supra note 226, at 286-87 (trick tries to strangle the author); id. at 325

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The law's stigmatization of inverts and empowerment of thugs also affected the sexual experience of the invert and in various ways contributed to the creation of particularly unproductive forms of sexual deviance. The stated intent of the law was to discourage sexual inverts from soliciting other men and engaging in sodomy, but there is little if any evidence that the law had that effect. At the same time Prohibition was creating a subterranean, mob-infused culture of booze, the laws discouraging same-sex intimacy were contributing to a subterranean, thug- infused culture of sexual risk. The outlaw status of male inverts contributed to a sexuality that was furtive, fleeting, and fraught with danger. For some men, the risk became part of the sexual excitement. Even Werther, who protested throughout his autobiography against the abuse to which he was subjected, continued to enter dangerous situations and at one point admitted, "The physical suffering and discomfort were extreme, but I was so fascinated by the savagery and the beauty of my tormentors that I experienced a species of mental satisfaction, being willing to suffer death if only I could contribute to their pleasure."3 In a literal way, the law was creating sexual variety, in this case of a sadomasochistic nature: by teaching thugs that they could have their way with fairies without accountability, the law encouraged their sadism; by teaching fairies that they were subhuman, the law inculcated in some of them a victim mentality of masochism. The law contributed to the institution of sexual blackmail. The most inevitable consequence of making a natural form of love illegal is blackmail: some individuals will be able to extort money from sexual outlaws in return for not reporting them to the police, their employers, or the newspapers. This was clear to Edward Stevenson in 1908, when he reported that homosexual blackmail was a problem wherever there were communities of stigmatized sexual inverts, but especially in those countries with the harshest laws against sodomy, namely, Germany, England, and the United States.3 46 By the 1940s, the sexually active middle-class gay man would expect to be blackmailed. s4 Yet at that very point in time, part of the antihomosexual discourse was that homosexuals should be excluded from serving the regulatory state-as soldiers, civil servants, public officials-because they were subject to blackmail. The genesis of this argument can be pinpointed to the middle of World War II. In 1942, charges surfaced in The Washington Post that Senator David Walsh, chair of the Senate Naval Affairs Committee, was a regular customer at a homosexual prostitution house that was also a haven for German spies.ms Only after the FBI denied the report did the charges die down .4 9 The

(author "shaken down" by a trick for money); id. at 347-48 (author victimized and robbed by tricks; police were nice but ineffectual). 345. Lind (Ralph Werther -Jennie June), Autobiography, supra note 2, at 135. 346. See Mayne (Edward Stevenson), supra note 44, at 457-59. 347. To the extent that Donald Vining is representative of such men (an open question), see Vining, supra note 226, at 325, 347-48. 348. The news accounts are distilled in Katz, Almanac, supra note 14, at 584-85. 349. Ironically, not only were the charges true, but FBI DirectorJ. Edgar Hoover, himself

HeinOnline -- 82 Iowa L. Rev. 1101 1996-1997 1102 82 IOWA LAW REVIEW [1997] next year, however, Under Secretary of State Sumner Welles was required to step down because of impending publication of charges (possibly leaked by the FBI, which also had a file on Welles) that he solicited homosexual acts from men. One argument that was used against Welles was that his sexual activities rendered him unfit for office, especially because of the potential for blackmail.5 0 After World War II,potential for blackmail linked homosexuality to political subversion and was the key argument for excluding homosexuals from military service, government jobs, and security clearances. 5' The blackmail argument illustrates the evolution of same-sex intimacy as outlaw sexuality. In 1880, such intimacy was outlawed because it was considered unnatural; in 1921, it was outlawed because it was considered gender-bending as well as unnatural; in 1946, it was outlawed because it was considered predatory as well as gender-bending and unnatural. After 1946, it would be outlawed because it was considered politically subversive as well-but the only reason it was even potentially subversive was that same- sex intimacy was outlawed. This evolution, especially in the context of the armed forces, also illustrates the Siegal thesis, whereby a modernization of rhetoric can strengthen a subordinating policy attacked by reformers. The armed forces' exclusion of "sodomists" came under steady fire from psychiatric reformers after 1921 and conceptually collapsed during World War II. But as reconceptualized as an exclusion of "homosexuals" the policy not only remained robust but expanded its reach during the war. When new fears surfaced after 1946, the "modernized" antihomosexual policy enjoyed its most ferocious application, especially against lesbians.

C. The Closet In his autobiography, Ralph Werther described the "double life" he led, by day a star student and by night a cruising fairie known as Jennie June. 52 Freda Ward probably led a similarly double life, by day a dutiful debutante on the road to courtship and marriage and by night the intimate of Alice Mitchell. After World War I, the double life blurred for the next generation of female impersonators and new women. In major cities to which homosexuals flocked, there were more public places where they could go to "let their hair down" and socialize not only with one another, but also with other kinds of nonconformists and even with sympathetic straights."5 3 An emboldened homosexual subculture

sexually ambiguous, kept a hefty file documenting Walsh's sexual activities. See iL at 530-31. The apparent purpose was political blackmail, where Hoover would exchange his silence and public support for private information and reciprocal support for the agency. 350. See For the President: Personal and Secret, Correspondence Between Franklin D. Roosevelt and William C. Bullitt 513-16 (Orville H. Bullitt ed., 1972). 351. See David Johnson, Homosexual Washington, Wash. Hist., Winter 1995. 352. See Lind (Ralph Werther -Jennie June), Autobiography, supra note 2, at 123. 353. The grand example is the Harlem Renaissance of the 1920s, when homosexual dives, cafes, flat parties, and drag balls all flourished in a multiracial sea of gender-bending. For

HeinOnline -- 82 Iowa L. Rev. 1102 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1103 expanded its horizon beyond social clubs and bars, to reach Hollywood, Broadway, and bookstores. Sexual conformity made a comeback in the 1930s, and the homosexual replaced the prostitute as the main object of stigma and scorn. The vigorous state campaign to suppress homosexuality had an undetermined effect on people's private feelings and behavior but did diminish its place in the public culture. The next generation of homosexuals-Lisa Ben (a pseudonym), Marvin Leibman, and Rock Hudson-could not retrieve the double life that had been available to Greta Garbo, Sumner Welles, and Cary Grant before 1935. The new generation came to occupy what we would now call "the closet." One way to differentiate the double life from the closet is by analogy to women who "passed" as men. When Elvira Mugarietta cross-dressed as Babe Bean in the 1890s, she was leading something of a double life; everybody in Stockton knew who she was, although the depth of her gender revolt remained a secret. When she "passed" as Jack Garland after 1901, she crossed over from the double life to a closet. Women passing as men led one life, not two, but a life where a socially salient identity characteristic was completely masked from others, including close friends. For Mugarietta passing as Jack Garland, the identity characteristic was her biological sex. For David Walsh and Sumner Welles, the identity characteristic was their sexual orientation. Before the 1940s, both men led comfortable double lives that were open secrets, and neither man made much pretense about issues such as sexual orientation. During the 1940s, both were caught in a transition that was making the double life obsolete and the closet necessary. The law played multiple roles in this transition from the double life to the closet. One difference between the double life and the closet was that the former did not treat homosexuality as a salient identity trait, while the latter did so, to the exclusion of everything else. The process by which sexual orientation became a central feature of personhood was by and large a social and cultural one, but law contributed to the process by publicizing the new medicalized vocabularies of sexual deviance and by providing battalions of monitors whose scrutiny reinforced the impression that the medical classifications carried totalizing consequences for one's personhood. Alice Mitchell's insanity hearing was many Americans' introduction to the possibility of same-sex erotic intimacy. A fascinated Havelock Ellis wrote that the Oscar Wilde trials of 1895 "may have brought conviction of their perversion to many inverts who were before only vaguely conscious of their abnormality, and paradoxical though it may seem, have imparted greater courage to others." Legal controversies over the Newport scandals, the Mae West plays, and The Well of Loneliness all provided occasions for a fascinated public

accounts, see Niles, supra note 249; Eric Garber, A Spectacle in Color. The Lesbian and Gay Subrulture of Jazz-Age Harlem, in Hidden from History: Reclaiming the Gay and Lesbian Past, supra note 48, at 318, 318-31.

HeinOnline -- 82 Iowa L. Rev. 1103 1996-1997 1104 82 IOWA LAWREVIEW [1997] to learn about the aboming homosexual and for some of them to scrutinize their own feelings. Most important of all was the law's screening and monitoring of homosexuals during World War II. The first time most of the recruits had heard of homosexuality was during the screening process; the episodic checking for "homosexual tendencies" helped create not only an awareness of deviant sexual orientation among many soldiers, but also helped create communities of homosexuals who gave one another support and advice about dodging the new exclusionary policy. If the modem regulatory state played a supporting role in the construction of homosexuality as an identity category, it played a more central role in a second feature of the closet: sexual orientation as uninterrupted performance. For almost all the period 1880 to 1946, the invert or homosexual was safe so long as he or she did nothing in public and kept his or her feelings secret. In the argot of the time, so long as the invert or homosexual wore his "mask" of normalcy, he was safe.SM The mask was a cone of silence that others respected. Families and employers followed a "don't ask, don't tell" approach to issues of sexuality that left most Americans nervous, and most state action was devoted to suppressing open discussion of sexual deviancy. All of this made space for the double life, but state policy in New York, California, and the federal government decisively changed by the 1940s. The First Amendment made it increasingly hard for the state to suppress discussion, and the strategy of the totalizing state was increasingly to initiate discussion of sexual deviancy: police all over the country were more aggressively enforcing criminal laws through decoys who baited homosexuals into revealing themselves and good cop/bad cop routines requiring entrapped homosexuals to identify others; the FBI was gathering files about suspected homosexuals in government and selectively leaking the information to an increasingly interested mass media; theatrical and movie censors were exercising their authority in a process of negotiation, whereby censors would raise concerns, rather than veto a project, and producers would modify their product until the censors were satisfied; doctors with the Public Health Service scrutinized immigrants for psychopathic sexualities and deployed their experience to help create a diagnostic manual in 1952 that lavishly detailed dozens of sexual disorders; selective service doctors quizzed recruits about their sexuality, army doctors and chaplains delivered "indoctrination" lectures about deviant sexualities, and commanding officers and military police monitored soldiers for signs of wrongful feelings. If a minor effect of state interrogation was to suggest the possibility of deviant sexual feelings, a major effect was to force people to self-identify, to take a position as to their sexual orientation. Because it was

354. For examples of the "mask" as a metaphor for such a strategy of silence, see Niles, sulira note 249, at 105; Xavier Mayne (pen name for Edward Stevenson), Imre 191 (1906) (fearful of male reaction to his sexual inversion, Imre "wore his mask each and every instant; resolving to make it his natural face before himself").

HeinOnline -- 82 Iowa L. Rev. 1104 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1105 clear that homosexuality was the wrong answer to the question, homosexuals not only lied about their orientation, but felt stronger pressure to "perform" as ostensible heterosexuals. This was a key theme of the closet: the homosexual not only kept her or his a secret, but performed a never-ending heterosexual masquerade.3 5 Just as Elvira Mugarietta, a woman, had masqueraded as Jack Garland, a man, so most postwar homosexuals masqueraded as heterosexuals. Ralph Werther's double life was literally lived in two different spaces: he was a schleppy if somewhat effeminate man at the uptown university and a girlish fairy downtown. The closeted homosexual lived a double life in the same space: the homosexual's real personhood was always in the closet, and the face he or she presented to the world was a mask of normalcy. The appearance of normal personhood simultaneous with the seclusion of a real personhood is characteristic of the closet. The scrutiny of police officers, military commanders, and state doctors kept the homosexual perpetually off balance. Law and the state played a third role in the construction of the closet, as they made it a potential refuge. The idea of the sexual closet combined themes of public secrecy and private security, which themes were parasitic on the state's role in creating and defining public and private spaces. As the law came pervasively to regulate sexuality between 1880 and 1946, the middle class demanded a limiting principle, and that principle turned out to be the public/private distinction. The law's monitors claimed to operate only on public manifestations of disapproved homosexuality: open solicitation of sex, notorious homosexual relationships or marriage, invasion of third-party rights (rape, child molestation), performance of homosexual plays or publication of homosexual literature, and cross- dressing outside the home. Although more clearly articulated in the 1950s, the implication of this claim was that private sexuality, even homosexuality, ought to be safe. The closet, as opposed to the double life, depended not just on secrecy, but upon a privacy that was defined by the state which was its perpetual threat. By the 1940s, it was becoming clear that the closet was for gay people both prison and refuge, and that ambivalence56 is another feature that differentiated the closet from the double life. By the 1950s, citizenship for homosexuals was conditioned upon their willingness to be closeted. Homosexuals could get married, serve in the military, have sex with one another, publish about homosexuality, so long as they paid fealty to compulsory heterosexuality by marrying people of the opposite sex, by presenting themselves as passing heterosexuals, by condemning homosexuality. This was an "apartheid of the closet," in which

355. See Niles, supra note 249, at 105 (Mark Thornton's desire to "throw off his mask" and announce his true sexual orientation to others); Gore Vidal, The City and the Pillar (1948) (Jim Willard's exhaustion with the "never-ending masquerade" of heterosexuality). 356. This is a theme of Eskridge, supra note 216. See also Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753, 1794-1802 (1996).

HeinOnline -- 82 Iowa L. Rev. 1105 1996-1997 1106 82 IOWA LAW REVIEW [1997] one's deep private identity was segregated from one's superficial public persona. At the same time that racial apartheid in the South was under attack and during the same war against the concentration camp apartheid of the Nazis, America was creating and consolidating this new form of apartheid, justified by the same eugenic science that southerners used to justify Jim Crow and the Nazis used to justify genocide 5 7 The closet, therefore, was a product of heightened discourse, much of it generated by legal inquisitors. Combine these thoughts about the closet with the phenomena traced in the two previous sections of normalization and outlaw sexuality. These suggest a normative objection: policies aimed at maintaining the closet not only created opportunities for blackmail and corruption, but in fact normalized deceit and hypocrisy. The Reverend Samuel Kent is an early example of this proposition. The evidence from his trial and the ensuing court of inquiry make it clear that he engaged in oral sex and masturbation with several of Ervin Arnold's operatives. Kent developed what was to become the paradigmatic strategy for handling such allegations. In contrast to Alice Mitchell, Ralph Werther, Oscar Wilde, and Mae West, whose near honesty did them no good in their encounters with the law, Kent not only denied the allegations strenuously, but deflected the charges of sodomy from himself to the operatives. Rather than commit minor perjuries, as Wilde had done at his trials, Kent committed high perjury at his and ruined his would-be persecutors. Now, it is hardly unusual for an accused man to commit perjury if he is guilty. What is striking about Kent's perjury is that it set a normalizing example for succeeding generations of perverts when confronted with the law: deny everything, play dumb, accuse others. This was the response of J. Edgar Hoover, Roy Cohn, and Joe McCarthy, as well as anonymous homosexuals in the armed forces during the 1950s. In the apartheid of the closet, the loud hypocrite who panders to the prevailing orthodoxy by sacrificing others (the Samuel Kents, the Roy Cohns) often triumphs, while the person of integrity who quietly tells the truth (the Becky Goldsteins, the Mae Wests) is relentlessly hounded by the law.

CONCLUSION

LESSONS FROM LESBIAN AND GAY HISTORY? The foregoing exercise in legal history and historical jurisprudence has relevance for current normative debates about the application of the law to lesbians, gay men, transgendered people, and bisexuals. Consider a

357. The half-generation after World War II saw the United States swerve more closely to a Nazi regime for dealing with homosexuals, who were subjected to witch hunts on the job, state serveillance and mail opening, arbitrary arrest, imprisonment for indefinite terms in special facilities, and castration and other medicalized torture essentially on the basis of their status as a demonized group. Although all of these exercises of law were fully anticipated in the prewar period, they were carried through with something much closer to a Nazi-like terror after the war. See generally Eskridge, supra note 216, at 708-69.

HeinOnline -- 82 Iowa L. Rev. 1106 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1107 few constitutional debates for which this history is relevant: 1. Sodomy and the Right of Privacy. Bowers v. Hardwicks5 upheld against right to privacy attack an application of Georgia's sodomy law to consensual oral sex between two male adults. Key to the Court's analysis was its assertion that "homosexual sodomy" had long been criminal in Anglo-American law, and was criminal almost everywhere in 1868, when the Fourteenth Amendment was ratified. 5 9 In truth, sodomy laws were rarely enforced before 1880, and almost never applied to sex between consenting adults, same-sex or otherwise; were understood as a regime for normalizing procreative sex, a goal now considered unconstitutional; and were authoritatively applied to oral sex (Michael Hardwick's crime) in not a single state before 1879.m Thus, the Court's choice of a normalizing regime for sodomy laws had nothing to do with the expectations of the eighteenth and nineteenth century legislatures that adopted such laws, or of the framers of the Fifth or Fourteenth Amendments. Its choice was its choice, not the framers' choice. The Court's choice was rooted in twentieth century law's creation of the "homosexual" as the object of criminalization and erasure. Understood this way, the Court was upholding proscriptions that had neither "ancient roots," nor sanctification by "millenia of moral teaching," as ChiefJustice Burger put it in his concurring opinion. The "roots" of the Court's focus on homosexuality were, instead, the antifeminist movement and the eugenic sexologists of the period between 1880 and 1946. With its historical foundation debunked, Hardwick must be defended on its merits, as a choice resting upon constitutional principle, a difficult task. 2. Sex Discrimination and Sexual Minorities. Many of the laws that deprive gay men, lesbians, and bisexuals of equal rights discriminate on the basis of sex rather than sexual orientation. The most notable example is the limitation of marriage to different-sex couples. Gay people can marry-so long as they marry someone of the opposite sex. The Hawaii Supreme Court has held this to be invidious sex discrimination,r' a proposition that strikes many as counterintuitive, if not transvestic-dressing gay rights up in feminist garb. Sylvia Law and Andrew

Koppelman have invoked historical examples to make the point 2 that compulsory heterosexuality is linked to the subordination of women.,"

358. 478 U.S. 186, 188 n.2 (1986). 359. See id. at 194. As Justice White told it, proscriptions against "homosexual sodomy" have "ancient roots" whose viability has only slightly diminished. What Michael Hardwick did-oral sex-was an offense at common law and in all 13 states at the founding, was illegal in 32 of the 37 states when the Fourteenth Amendment was ratified (1868), was illegal in all 50 states until 1961, and remained criminal in 24 states and the District of Columbia as of 1986. 360. See William N. Eskridge, Jr., Bowers v. Hardwick Reconsidered, U. Ill. L. Rev. (forthcoming 1998); Goldstein, supra note 14. 361. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). 362. See Sylvia Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L Rev. 187; Andrew Koppelman, Why DiscriminationAgainst Lesbians and Gay Men Is Sex Disrrimination,69

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The foregoing account supports the Law-Koppelman thesis, with a caveat. As the history of cross-dressing, antidegeneracy, and inversion laws reveals, heightened legal concern with suppressing same-sex intimacy was strongly associated with heightened legal concern with maintaining rigidly differentiated gender roles. To keep women in their place, having babies and keeping house, the state followed a comprehensive strategy of withholding contraceptives from women, criminalizing abortion, terrorizing prostitutes, denying women the ability to wear men's clothing, demonizing male as well as female inversion. To the extent that antihomosexual laws reflected similar efforts to stigmatize gender deviance and thereby reinforce traditional gender roles, they can legitimately be said to contribute to the subordination of women, as Law and Koppelman argue. On the other hand, like the cross-dressing prohibitions rife in this period, the antihomosexual rules taking form after World War I reflect more than anxiety about gender deviance. They reflect anxiety about sexuality itself, and a fear that sexual urges are always capable of overpowering people and turning them into depraved monsters. To the extent that the homosexual has been demonized as a predatory monster or vampire, rather than as a gender-bender, antihomosexual policies are that much less cofinected with policies of gender maintenance that have been problematized by modern sex discrimination law. 3. Free Expression and Don't Ask, Don't Tell. Contrary to legal academics' focus on the right of sexual privacy and Hardwick, the foregoing account shows how the state regulates sexual minorities more powerfully through interrogation, censorship, and civil exclusions than through police harassment, arrest, and fines or imprisonment. State censorship affected lesbians as well as gay men, pervaded entire lives, and regulated identity rather than activity. This deployment of law faced First Amendment problems almost from the outset. Although state and federal judges sometimes acted to prevent the state from censoring gender-bending books and plays, the First Amendment stood mute in face of other forms of state harassment. One reason was the First Amendment's relatively narrow focus during this period. Courts in New York upheld the state's authority to close down gay bars, refusing to recognize any freedom of association for bar patrons. The U.S. Supreme Court held that movies, and perhaps implicitly plays, were not within the First Amendment's protection. Another reason for judicial noninvolvement was the self-enforcing nature of the emerging gay closet, whose privacy precluded gay people from bringing their cases to court. Judges of the period were not even presented with cases arising in the contexts of gay or gender-bending immigrants seeking to enter or stay in this country, lesbian or gay soldiers prosecuted or excluded from military service, or sexual psychopaths incarcerated for indefinite periods of time so the state could "cure" their

N.Y.U. L. Rev. 197 (1994). I support their position in William N. Eskridge, Jr., The Case for Same-Sex Marriage ch. 6 (1996).

HeinOnline -- 82 Iowa L. Rev. 1108 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1109 deviant sexualities. The state's antihomosexual rules and regulations can best be summed up by the don't ask, don't tell philosophy, whereby homosexuals should be permanently disenfranchised and erased from the nation's public culture. While most of the specific antihomosexual rules and regulations have been repealed, several have survived""5 and one has flourished: the armed forces' exclusion of lesbians, bisexuals, and gay men.364 The current administration claims to enforce the exclusion only against service personnel who admit their sexual orientation (or are caught committing homosexual acts). The history of the antigay exclusion told here reveals the relative novelty of the don't ask, don't tell policy, for prior military exclusions and expulsions were firmly linked to sodomy and gender inversion. It was not until World War II that sexual identity had any role in an exclusionary policy. The policy's obvious tension with the First Amendment is now defended-successfully so far-on grounds of judicial deference to military judgment, but the current history suggests that military judgment has been anything but sure-footed in this arena, perhaps no more so than the military's judgment that white soldiers should not be required to serve alongside African-American soldiers.

363. Currently, six states (four by statute, two by court decision) have sodomy laws that criminalize consensual adult sodomy only when it is between two people of the same sex. 364. See Pub. L No. 103-160, § 571(a)(1), 107 Stat. 1670 (1993) (codified at 10 U.S.C. § 654).

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APPENDIX 1 SODOMY ARRESTS, VARious CIIms, 1875-1941sr5 Bal Bos Chi DC NYC Phi Rich SF StL

1875 NA 1 NA NA NA NA 0 1876 NA 0 NA NA NA NA 0 1877 NA 1 NA NA NA NA 0 1878 NA 0 1 NA NA 1 0 1879 NA 1 1 NA NA 1 0 1880 NA 3 5 0 NA 5 0 1881 NA 0 2 NA NA 15 0 1882 0 0 2 2 NA 29 0 1883 0 0 1 NA NA 9 0 1884 1 7 4 3 NA 3 0 1885 0 1 5 0 6 10 0 1886 2 2 1 NA 12 2 0 1887 0 13 1 2 13 10 0 1888 1 7 2 0 19 16 0 1889 3 9 2 1 15 20 0 1890 NA 2 16 3 16 28 0 1891 NA 4 11 NA 26 33 0 1892 NA 9 7 4 14 21 0 1893 NA 13 24 4 14 18 0 1894 NA 16 2 0 33 28 0 1895 NA 9 12 0 24 40 0 1896 24 NA 13 7 7 NA 0 1897 NA 13 10 0 19 36 0 1898 NA 4 13 0 39 44 0 1899 NA 6 31 NA 19 30 0 1900 NA 10 20 1 NA 52 0 1901 NA 11 13 0 52 22 0 1902 NA 12 13 0 43 17 0 1903 NA 4 30 0 60 30 0 1904 NA 7 18 12 94 24 0 1905 NA 8 23 1 75 19 0

365. The data in this Appendix are compiled for the crime categories "sodomy," "crime against nature," and "buggery" found in annual police reports for Baltimore (Bal), Boston (Bos), Chicago (Chi), Washington, D.C. (DC), New York City (NYC), Philadelphia (Phi), Richmond, Virginia (Rich), San Francisco (SF), and Saint Louis (StL). "NA" will indicate that I have not found the annual report for that year. Where "sodomy"/"crime against nature" was not a category in a report I have examined, I signify the absence with "0" rather than "NA". I also examined annual police reports for Cleveland, Los Angeles, Minneapolis, and Nashville but do not include that data here, because it is more fragmentary than the data for the listed cities.

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Bal Bos Chi DC NYC Phi Rich SP StL

1906 3 13 27 70 28 NA 12 1907 6 6 32 94 7 13 10 1908 4 18 49 NA 24 9 19 1909 6 14 31 68 1 13 4 1910 4 15 33 45 18 13 3 1911 NA 22 38 60 23 26 5 1912 8 22 NA 73 53 19 5 1913 9 16 21 75 63 NA 15 1914 NA 16 22 85 78 NA 25 1915 4 13 30 114 31 NA 34 1916 23 22 30 103 50 NA 12 1917 43 29 24 138 40 NA 17 1918 28 17 11 83 52 NA 27 1919 27 22 18 89 57 NA 18 1920 NA 16 21 94 38 NA 12 1921 29 28 30 95 46 NA 23 1922 25 34 21 108 55 NA 41 1923 31 54 71 89 45 NA 25 1924 25 37 82 140 NA NA 26 1925 25 39 NA 113 NA NA 30 1926 NA 49 28 97 NA NA 19 1927 23 34 41 141 NA NA 36 1928 52 35 55 137 NA NA 20 1929 42 36 38 114 NA NA 16 1930 28 23 34 108 NA NA 34 1931 NA 33 NA 116 NA NA 23 1932 28 24 NA 91 NA NA 32 1933 53 36 NA 125 NA NA 15 1934 31 24 NA 137 NA NA 31 1935 39 28 NA 130 NA NA 36 1936 35 NA NA 182 NA NA 23 1937 40 NA NA 156 NA NA 32 1938 61 NA NA 186 NA NA 50 1939 45 NA NA 165 NA NA 34 1940 47 NA NA 158 NA NA 69 1941 39 NA NA 154 NA NA 45 1942 62 NA NA 163 NA NA 42

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APPENDIX 2A

SEX OFFENSE ARRESTS IN SAN FRANCISCO, 1860-1912'66

Fiscal Prost Sodomy Cross Ind Obscen Rape Crime Year (Solic) (Lewd) Dress Exp Against Child

1860 22 1862 6 1863 4 1864 2 1865 1 1866 136 1867 1 1868 1 (9) 1869 NA (105) 1870 1 (215) 1871 2 (227) 1873 87 (180) 1874 117 (242) 1875 6 (346) 1876 167 (295) 1877 38 (195) 1878 72 (388) 1879 32 (458) 1880 3 (547) 1881 30 (349) 1882 66 (331) 1883 35 (163) 1884 10 (375)

366. The data in this Appendix are compiled from the "Arrests" tables in the Chief of Police's annual reports for the listed years; these reports can be found in the annual San Francisco Municipal Reports for those years and are on file at the San Francisco Municipal Library. This Appendix combines and recharacterizes categories in the following manner. The category Prostitution (Prost) includes San Francisco's categories "Common Prostitutes," "Keeping a Disorderly House or House of Ill Fame," and being an inmate of such a house; in parentheses are arrests for Soliciting for Prostitution (Solic). The category Cross-Dress is usually called "Wearing Unlawful Apparel" or "Wearing Unlawful Male or Female Attire" in the reports. The category Sodomy includes both "Sodomy" and "Crime against Nature" arrests, as well as arrests for attempts or assaults to commit the crime against nature; in parentheses are arrests for Lewdness (Lewd), which were not reported until 1898. The category Obscenity (Obscen) includes San Francisco's categories "Obscene Books" and "Obscene Pictures." It does not include San Francisco's category "Profane/Obscene/Lewd Language," which generated enormous numbers of arrests starting in 1871. The category Crime Against Child includes San Francisco's categories "Enticing Minor to House of Ill Fame" (first entry 1890) and "Crime Against a Child" (first entry 1909).

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Fiscal Prost Sodomy Cross Ind Obscen Rape Crime Year (Solic) (Lewd) Dress Exp Against Child

1885 5 (629) 2 2 34 4 7 NC 1886 14 (659) 1 5 27 13 19 NC 1887 23 (409) 1 0 28 0 18 NC 1888 11 (150) 4 0 19 0 10 NC 1889 43 (92) 6 4 54 8 19 NC 1890 23 (146) 7 1 39 21 14 3 1891 28 (192) 9 4 43 15 15 11 1892 20 (233) 5 2 52 13 22 14 1893 34 (211) 11 1 45 16 13 5 1894 22 (557) 2 5 50 26 11 10 1895 56 (569) 4 1 68 12 27 3 1896 26 (821) 13 4 71 16 51 2 1897 28 (677) 2 5 64 7 23 3 1898 23 (548) 6 (7) 1 50 12 24 3 1899 106 (366) 8 (13) 12 37 22 17 3 1900 129 (204) 2 (4) 2 32 3 25 3 1901 23 (131) 8 (9) 0 31 3 19 0 1902 33 (131) 6 (8) 0 40 13 31 4 1903 120 (114) 10 (8) 2 43 10 33 2 1904 10 (197) 17 (20) 3 54 10 21 2 1905 1765(265) 18 (41) 4 66 30 34 4 1907 486 (130) 13 (11) 0 64 1 49 0 1908 244 (235) 9 (69) 6 114 10 33 4 1909 62 (273) 13 (94) 0 51 32 28 29 1910 51 (0) 13 (54) 6 61 9 32 28 1911 70 (123) 26 (35) 0 46 7 42 10 1912 58 (1) 19 (72) 0 65 12 38 21

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APPENDIX 2B SEX OFFENSE ARRESTS IN NASHviLLE, 1880-1910W67

Fisc Misceg Sod Prost Loit Ind Exp Lewd Cross Rape Year (Women) (Men) (Women) (Women) Dress (Men)

1880 50 37 40 4 5 1881 46 45 42 4 3 1882 26 37 28 4 2 1883 44 31 36 1 4 1884 32 27 23 0 0 1885 26 34 14 3 2 1886 6 60 15 3 6 1887 38 48 45 0 3 1888 32 34 34 5 7 1889 57 36 12 1 5 1890 64 32 22 0 2 1891 6 (3) 44 (4) 5 (0) 0 1 1892 71 (36) 176 (43) 26 (0) 10 (4) 10 1893 152 (77) 197 (25) 12 (1) 0 9 1894 98 (50) 210 (27) 0 1 (0) 14 1895 73 (38) 120 (12) 6 (1) 1 (1) 10 1896 54 (27) 110 (11) 9 (1) 2 (1) 3 1897 63 (32) 148 (16) 8 (0) 1 (0) 10 1898 36 (18) 200 (15) 7 (0) 0 8 1899 52 (26) 24 (8) 0 0. 13 1900 65 (35) 64 (14) 0 0 9 1901 100 (51) 183 (58) 0 0 13 1902 77 (38) 117 (63) 0 0 12

367. The following data are taken from the "Offenses" reported in the annual reports of the Nashville Captain of Police for the listed fiscal years. These reports are on file at the Nashville Municipal Library. Like some other cities, Nashville starting in 1891 broke down the arrests by gender, and I do the same in this Appendix. For Prostitution and Cross-Dressing, crimes mostly committed by women, the number of men are in parentheses; for Indecent Exposure and Lewdness, crimes mostly committed by men, the number of women are in parentheses. Sodomy and Rape were always committed by men. This Appendix combines and recharacterizes categories in the following manner. The category Miscegenation includes Nashville's categories "Colored Males/Females Cohabit- ing/Having Intercourse with White Men/Women," "White Males/Females Cohabiting/Having Intercourse with Colored Men/Women," and "Miscegenation." The category Prostitution (Prost) includes Nashville's categories "Keeping Disorderly House/Assignation House/House of Ill-Fame" (usually females), "Loitering near a Disorderly House" (mostly females), "Riding/Walking with a Prostitute" (males). The category Loitering ("Loit") includes Nashville's categories "Loitering About Streets and Alleys," as well as "Railroad Depots," and "Saloons." The categories Indecent Exposure and Lewdness include Nashville's categories "Exposure of the Person" and "Lewdness," respectively. The category Cross-Dressing (XDress) includes Nashville's categories "Appearing on Street in Improper Attire," "Appearing in Costume Not Belonging to Its Sex," and "Dressing in Unlawful Attire." These were all municipal crimes. The categories Sodomy (Sod) and Rape include Nashville's categories by the same names, as well as attempts or assaults to commit the same. These were state felonies.

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Fisc Misceg Sod Prost Loit Ind Exp Lewd Cross Rape Year (womrn) (Men) (WomM) (Women) Dress (Men)

1903 99 (50) 130 (89) 524 0 0 0 10 1904 56 (28) 252 (158) 565 0 0 0 4 1905 107 (54) 347 (94) 905 0 0 0 15 1906 84 (43) 289 (199) 809 0 0 0 16 1907 63 (31) 279 (156) 582 0 0 0 13 1908 60 (30) 594 (493) 1098 0 0 0 16 1909 75 (37) ??? (236) 187 0 0 0 8

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APPENDIX 2C

SEX OFFENSE ARRESTS IN RICHMOND, 1 8 7 5 -19 4 0sr' Year Prost Rape -Buggeiy Fornic Indec Obscen Child Exp

1875 1876 1877 1878 1879 1880 1881 1882 1883 1884 1885 1886 1887 1888 1889 1890 1891 1892 1893 1894 1895 1896 1897 1898 1899 1900 1901 1902 1903 1904 1905 1906

368. The data in this Appendix are compiled from the Report of the Chief of Police in each year's Annual Report of the Mayor, for the years 1875 through 1940. The category Prostitution (Prost) includes Richmond's categories "Keeping a Disorderly House," "Keeping a House of Ill Fame," and "Streetwalkers"; Rape includes Richmond's categories "Rape" and "Seduction" (rape of a minor); Buggery includes "Buggery" and "Sodomy"; Fornication includes just "Fornication"; Indecent Exposure (Indec Exp) includes "Indecent Exposure," "Exposing the Person," and "Exposing on the Streets"; Obscenity (Obscen) includes "Distributing Obscene Publications," "Exhibiting an Immoral Play," and "Violating State Censorship Law"; Crimes Against Children (Child) includes "Contributing to the Delinquency of a Minor," "Pandering," and "Harboring Minors for Immoral Purposes."

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Year Prost Rape Buggery Fornic Indec Obscen Child Exp

1907 1908 1909 1910 1911 1912 1913 1914 1915 1916 1917 1918 1919 1920 1921 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 1937 1938 1939 1940

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APPENDIX 2D SEX OFFENSE ARRESTS IN SAINT LouIs, 1874-19463"'

Fiscal Prost Sodomy Lewdness Cross Ind Exp Rape Year (Men) (Women) Dress (Women) (Men)

1874 0 0 0 0 224(39) 24 1875 327 (24) 1 0 0 227 (58) 20 1876 972 (126) 3 0 0 241 (52) 19 1877 1229 (98) 1 0 0 110 (26) 15 [Gap] 1884 1045 (87) 0 0 0 172 (23) 26 1885 1347 (94) 1 20 (8) 0 182 (27) 19 1886 1078 (55) 2 30 (15) 0 150 (23) 29 1887 1398 (29) 0 4 (2) 0 161 (29) 43 1888 1180 (40) 1 2 (0) 4 (0) 104 (13) 39 1889 1112 (11) 2 0 0 150 (9) 46 1890 1232 (9) 2 3 (0) 0 144 (9) 21 1891 1477 (9) 1 0 3 (2) 183 (14) 38 1892 1606 (25) 1 4 (0) 0 193 (10) 28 1893 2105 (153) 0 5 (0) 10 (10) 222 (14) 60 1894 2861 (284) 0 12 (12) 0 179 (23) 61 1895 3126 (1) 0 8 (8) 0 119 (21) 34 1896 4313 (14) 5 8 (6) 8 (2) 138 (17) 42

369. The data in this Appendix are compiled from the Statistical Reports of Arrests found in the annual reports of the St. Louis Police Commissioners for the listed fiscal years. These reports are on file at the St. Louis Municipal Library. Like some other cities, St. Louis broke down the arrests by gender, and I do the same in this Appendix. For Prostitution and Cross- Dressing, crimes mostly committed by women, I put the number of men in parentheses; for Indecency and Lewdness, crimes mostly committed by men, I put the number of women in parentheses. Sodomy and Rape were always committed by men until 1941, when St. Louis had its first recorded arrests of women for sodomy. This Appendix combines and recharacterizes categories in the following manner. The category Prostitution (Prost) includes St. Louis's categories "Frequenting Bawdy House" (males), "Inhabiting Bawdy House" (females), "Keeping Bawdy House" (females), "Keeping Disorderly House" (usually females), "Prostitutes Wandering About the Streets" (females), "Prostitutes Plying Their Avocation" (females), "Roping" (probably solicitation; women). These were municipal crimes. After 1910, the authorities began enforcing federal and state categories: "White Slavery" and "" (federal) and "Enticing Minor Females for Immoral Purposes" (state). The category Sodomy includes both "Sodomy" and "Crime against Nature" arrests, as well as arrests for attempts or assaults to commit the crime against nature (all serious state crimes). The category Lewdness includes the St. Louis category "Lewd and Indecent Act" (municipal crime) and "Lewd and Lascivious Conduct" (state crime). The category Indecency includes the St. Louis category "Exposing the Person" (a municipal crime). The category Cross-Dress is usually called "Wearing Unlawful Apparel" or "Wearing Unlawful Male or Female Attire" in the reports (municipal crimes). The category Rape includes attempts to commit rape as well as rape itself (serious state crimes).

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Fiscal Prost Sodomy Lewdness Cross Ind Exp Rape Year (Mn) (Women) Dress (WOmen) (Me)

1897 3502 (138) 3 41 (5) 2 (1) 67 (6) 29 1898 3423 (215) 2 50 (7) 0 78 (2) 32 1899 3562 (224) 4 24 (5) 4 (2) 62 (8) 24 1900 3311 (163) 4 27 (5) 2 (1) 57 (4) 16 1901 2941 (119) 3 17 (3) 0 57 (2) 20 1902 3408 (127) 3 17 (7) 3 (0) 62 (8) 34 1903 3538 (97) 0 34 (6) 5 (3) 97 (5) 39 1904 2856 (145) 6 41 (10) 1 (0) 72 (0) 32 1905 3375 (63) 10 49 (7) 6 (3) NA 80 1906 2418 (116) 12 52 (3) 2 (1) 55 (0) 46 1907 2068 (194) 10 86 (17) 6 (1) 83 (3) 73 1908 2132 (308) 19 101 (21) 9 (5) 78 (0) 59 1909 1378 (139) 5 96 (17) 2 (1) 61 (0) 58 1910 1328 (167) 3 116 (16) 3 (0) 95 (0) 59 1911 925 (68) 5 142 (18) 0 58 (2) 80 1912 846 (86) 5 88 (17) 5 (0) 56 (1) 53 1913 1068 (118) 15 69 (14) 1 (0) 63 (3) 64 1914 1333 (203) 23 47(10) 8 (7) 59 (1) 125 1915 1858 (234) 32 54 (12) 5 (4) 60 (0) 118 1916 1578 (273) 12 35 (7) 4 (1) 49 (0) 87 1917 3915 (1449) 14 20 (1) 3 (1) 42 (1) 138 1918 5191 (2105) 27 40 (11) 10 (3) 55 (0) 126 1919 3187 (1535) 18 55 (13) 5 (0) 34 (1) 135 1920 2057 (535) 12 40 (10) 7 (0) 24 (0) 124 1921 1641 (425) 23 26 (5) 0 49 (0) 186 1922 947(368) 40 36 (2) 2 (0) 36 (1) 205 1923 603 (223) 25 39 (10) 0 20 (0) 199 1924 568 (206) 25 41 (18) 0 37 (0) 98 1925 356 (156) 28 17 (4) 0 39 (2) 238 1926 601 (239) 19 35 (11) 0 90 (4) 247 1927 442 (170) 34 68 (15) 0 77 (3) 300 1928 3114(2172)3' 0 19 53 (12) 0 69 (1) 244 1929 2611 (150) 16 44(17) 0 88 (2) 232 1930 1929 (100) 34 9 (6) 0 79 (3) 231 1931 1312 (90) 22 11 (3) 0 79 (0) 189 1932 2084 (97) 32 16 (5) 0 83 (6) 149 1933 7913 (419) 15 21 (10) 0 70 (1) 224 1934 7491 (313) 30 25 (1) 0 120 (18) 309 1935 7565 (206) 36 23 (1) 0 86 (6) 160 1936 7997 (167) 23 107 (6) 0 61 (43) 180

370. In 1928, St. Louis commenced large-scale enforcement of the crime of "Vagrancy," with 281 arrests of men and 1681 arrests of women for that crime. Most of the women were probably suspected prostitutes; at least some (but surely not most) of the arrests of men were for homosexual cruising. Because I do not include vagrancy arrests in my prostitution figures, the figures greatly understate the matter beginning in 1928.

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Fiscal Prost Sodomy Lewdness Cross Ind Exp Rape Year (Men) (Women) Dress (Women) (Men)

1937 NA 32 NA 0 77 (1) 198 1938 5765 (107) 48 52 (22) 0 78 (3) 224 1939 4392 (107) 34 45 (7) 0 116 (2) 202 1940 2909 (47) 64 55 (7) 0 92 (2) 212 1941 1833 (115) 4e' 37 (2) 0 86 (3) 182 1942 441 (78) 42 79 (43) 0 99 (2) 157 1943 389 (112) 34 19 (0) 0 100 (0) 160 1944 447 (121) 31 29 (5) 0 77 (1) 162 1945 60 (39) 30 44 (9) 0 79 (0) 157 1946 53 (22) 40 36 (5) 0 89 (2) 180

371. Two women were arrested for sodomy in 1941, the first reported arrests of women for that crime in St. Louis records. Four women were arrested in 1945.

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APPENDIX 2E SEX OFFENDERS COMMITTED TO MICHIGAN PRISONS, 1875-1946F Rape Statutory Indecent Sodomy Sex Cimes as % Rape Liberties etc. Commitments

1875 12 0 0 0 6.9 1900 38 2 10 4 10.8 1905 22 6 4 6.6 1925 96 39 28 7.6 1926 110 37 30 7.2 1927 116 54 42 7.8 1928 124 58 43 8.2 1929 135 75 39 9.6 1930 124 77 31 7.4 1931 35 41 48 23 5.9 1932 17 55 50 30 6.5 1933 21 69 49 18 7.2 1934 28 66 67 25 8.9 1935 29 66 65 23 9.1 1936 19 46 55 35 9.8 1937 36 79 88 55 14.9 1938 41 71 89 40 12.6 1939 45 75 82 34 13.2 1940 27 80 76 36 12.9 1941 24 71 72 34 13.0 1942 42 89 71 46 14.4 1943 45 86 73 42 14.2 1944 23 63 74 41 12.1 1945 36 77 51 44 12.9 1946 21 75 72 61 10.7

372. The data in this Appendix are compiled from the Report of the [State of Michigan] Governor's Study Commission on the Deviated Criminal Sex Offender tl. 4 at 210-11 (1951).

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APPENDIX 2F

SEX CRIMES PROSECUTED BY DADE COUNTY (FLORIDA) SOLICITORS, 1929- 19463'3

1929- 1931- 1933- 1935- 1937- 1939- 1941- 1943- 1945- 1930 1932 1934 1936 1938 1940 1942 1944 1946

Rape 4 9 2 10 10 8 17 9 1

Crime Ag. Nature/Lewd 0 8 18 10 23 16 22 31 24 Acts

Adulter/ 0 4 4 3 12 16 16 15 23 Fornication Miscegen. 0 3 4 3 7 7 7 13 9

Bigamy

Incest 0 2 0 1 0 0 5 4 1

Delinquency 0 0 0 8 18 28 46 31 23 Minors

Indecent Assault on 0 0 0 0 0 0 0 13 11 Child

Obscenity 0 0 0 2 9 16 14 0 0

Indecent e e 0 0 0 Exposure 5 12 24 15 3 19

Prostitution 0 0 0 0 0 0 0 16 34

Total Sex 4 26 28 42 91 115 142 135 146 Crimes

373. The data in this Appendix are compiled from the annual reports of the Florida Attorney General for the listed years.

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APPENDIX 3 "DEGENERATES" ARRAIGNED IN NEW YORK CITY's MAGRISTRATEs' COURTS, 1915-19483'4

Arraignments % Convictions % Wor*house % Sents > 2 (Females) (Overall %) (Overall %) Mos (Overall %)

1915 > 96 (0) NA 86% NA 1916 > 92 (0) NA 54% NA 1917 > 127 (0) NA NA NA 1918 > 238 (0) NA NA NA 1919 > 559 (0) NA NA NA 1920 > 756 (0) NA NA NA 1921 > 519 (0) NA NA NA 1922 416 (1) 83% (81%) 39% (2%) 26% (34%) 1923 217 (0) 88% (79%) 39% (3%) 32% (34%) 1924 469 (0) 87% (83%) 34% (3%) 26% (34%) 1925 607 (0) 78% (85%) 33% (3%) 20% (35%) 1926 630 (3) 89% (83%) 37% (3%) 27% (32%) 1927 513 (0) 92% (86%) 23% (3%) 40% (37%) 1928 609 (1) 92% (85%) 22% (4%) 20% (37%) 1929 1070 (0) 90% (80%) 24% (4%) 24% (33%) 1930 1212 (4) 85% (86%) 33% (4%) 17% (30%) 1931 437 (0) 80% (84%) 26% (2%) 10% (26%) 1932 465 (4) 79% (83%) 24% (2%) 17% (29%) 1933 1042 (NA) NA NA NA 1934 456 (NA) NA NA NA 1935 554 (82) 70% (83%) 28% (1%) 24% (30%) 1936 543 (100) 80% (85%) 34% (1%) 28% (21%) 1937 610 (39) 83% (86%) 33% (1%) 33% (22%) 1938 726 (67) 79% (87%) 39% (2%) 34% (17%) 1939 647 (41) 86% (90%) 44% (2%) 35% (17%) 1940 707 (69) 85% (88%) 44% (2%) 33% (15%) 1941 735 (61) 80% (81%) 36% (2%) 23% (13%) 1942 717 (NA) 79% (86%) 29% (3%) 27% (14%) 1943 855 (NA) 81% (82%) 32% (2%) 30% (11%)

374. The data in this Appendix are compiled from the annual reports of the New York City Magistrates' Courts. (These may be found in the New York Public Library's microfilm collection, call number *ZAN-10223.) The Fingerprint Bureau (which was established for the Magistrates' Courts in 1913) began keeping separate records for "degenerates" in 1915, but the magistrates did not create a separate category for "degenerates" until 1922. (Before 1922, "degenerates" were included with others arraigned for "disorderly conduct.") Because defendants were typically not fingerprinted until after a disposition (usually a guilty plea or summary conviction), the number of defendants fingerprinted were less than the number arraigned. Hence, the arraignment figures for the years 1915-1921, inclusive, would be greater than the fingerprint figures; my use of the greater than sign (>) is supposed to signify this idea.

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Arraignments % Convictions % Workhouse % Sents > 2 (Females) (Overall %) (Overall %) Mos (Overall %)

1944 1072 (NA) 84% (84%) (1%) 20% (13%) 1945 2147 (NA) 89% (84%) (2%) 9% (10%) 1946 2473 (NA) 86% (89%) (1%) 11% (12%) 1947 3105 (NA) 90% (81%) (1%) 11% (10%) 1948 3289 (NA) 91% (80%) (1%) 10% (9%)

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APPENDIX 4 SEXUAL OuT.AWS DEBARRED FROM ENTERING THE U.S. BY IMMIGRATION AUTHORITIES, 1892-1956 s 5

Fiscal Psych Pub Ch Crim Polyg Prost Total 76 Year Debarred

1892 1002 2164 1893 431 1053 1894 802 1389 1895 1714 2419 1896 2010 2799 1897 1277 1617 1898 2261 3030 1899 2599 3798 1900 2974 4246 1901 2798 3516 1902 3944 4974 1903 5812 8769 1904 4798 7994 1905 7898 11879 1906 7069 12432 1907 6866 13064 1908 4611 10902 1909 4828 10411 1910 15540 24270 1911 15103 22349 1912 10370 16057 1913 12264 19938 1914 22321 33041 1915 16561 24111 1916 12130 18867

375. The data for this Appendix are taken from the Annual Report of the Commissioner General of Immigration to the Secretary of Labor, Fiscal Year EndingJune 30, 1924, at 128-29; Annual Reports of the Immigration and Naturalization Service for the Fiscal Years 1944, 1946, 1950, 1953, and 1956. The category "Psych" includes the Immigration Service categories "Constitutional Psychopathic Inferiority" (1917-52) and "Psychopathic Personality Aliens" (after 1952). The category "Pub Ch" includes the Immigration Service categories "Paupers or Likely to Become Public Charges" and "Surgeon's Certificate of Mental Defect Which May Affect Alien's Ability to Earn a Living." The category "Crim" includes the Immigration Service category "Criminals." The category "Polyg" includes the Immigration Service category "Polygamists." The category "Prost" includes the Immigration Service categories "Prostitutes and Aliens Coming for Any Immoral Purposes," "Supported by Proceeds of Prostitution," and "Aliens Who Procure or Attempt to Bring in Prostitutes and Females for Any Immoral Purpose," categories which after 1924 are collapsed into "Immoral Classes." 376. The "Total Debarred" includes all categories, not just the ones outlined in this Appendix.

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Fiscal Psych Pub Ch Crim Polyg Prost Total Year Debarred

1917 3 9527 257 2 887 16028 1918 20 3149 160 4 249 7297 1919 37 4348 261 2 125 8626 1920 38 5677 355 1 185 11795 1921 39 6535 178 16 152 13779 1922 31 6128 176 2 210 13731 1923 55 8910 364 1 326 20619 1924 69 8882 546 2 313 30284 [Gap] 1937 28 2175 215 1 46 8076 1938 29 2377 200 2 66 8066 1939 19 2113 188 1 66 6498 1940 12 1356 144 0 33 5300 1941 4 350 92 2 13 2929 1942 7 167 70 0 10 1833 1943 4 100 68 1 6 1495 1944 15 122 63 0 8 1642 1945 19 69 87 0 4 2341 1946 9 37 87 2 3 2942 1947 44 232 442 0 12 7435 1948 28 200 367 0 18 7113 1949 22 215 402 2 31 5541 1950 '49 130 428 3 32 5256 1951 24 359 610 2 38 5647 1952 9 52 534 0 29 5050 1953 14 36 491 0 58 5647 1954 22 18 196 0 65 3313 1955 10 11 206 3 124 2667 1956 1 14 169 0 64 1709

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APPENDIX 5

EARLY SEX OFFENSE REGULATIONS IN SAN FRANcIsco, 1866-1915 General Orders of the San FranciscoBoard of Supervisers, 1866 ORDER NO. 697

Chapter 3. Offensive Trades and Occupations, and Nuisances Sec. 20. No person shall appear in a public place naked, or in a dress not belonging to his or her sex, or in an indecent or lewd dress, or shall make any indecent exposure of his or her person, or be guilty of any lewd or indecent act or behavior, or shall exhibit or perform any indecent, im- moral, or lewd play, or other representation. Any person who shall violate any of the provisions of this section shall be deemed guilty of a misde- meanor; and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail not more than six months.

General Orders of the San FranciscoBoard of Supervisers, 1874 ORDER NO. 697, 1874, as Amended by ORDER NO. 1196

Chapter 3. Offensive Trades and Occupations, and Nuisances Sec. 20. No person shall:... 5. Offer for sale, exhibit, pass, give, or deliver to another any ob- scene, lewd, or indecent book, pamphlet, picture, card, print, paper, writ- ing, mould, east or figure, or have the same in his or her possession, unless it is shown that the possession is innocent, or for lawful purpose; 6. Circulate, or distribute, or cause to be circulated, or distributed, any pamphlets, books, or circular, treating of, or illustrating, any of the dis- eases of the sexual organs; 7. Appear in a public place naked, or in a dress not belonging to his or her sex; or in an indecent or lewd dress; 8. Make any indecent exposure of his or her person; 9. Be guilty of any lewd or indecent act or behavior; 10. Exhibit or perform any indecent, immoral, or lewd play or other representation; 11. Solicit, employ, or engage another to commit a public of- fense;... 14. Solicit by words, gestures, or knocks, any person passing or being on a public street, or place, to enter any house for lewd purposes;...

ORDER NO. 2825 Prohibitingthe Use of Mechanical Contrivances or Devices for the Reproduction of Obscene Language or Other Representations

Approved November 21, 1894 Section 1. It shall be unlawful for any person, by the means of

HeinOnline -- 82 Iowa L. Rev. 1127 1996-1997 1128 82 IOWA LAWREVIEW [1997] any device, or composition of matter, or machine, or mechanical contriv- ance, to reproduce, utter, or repeat, or cause to be reproduced, or re-ut- tered or repeated, obscene, or indecent, or vulgar language, or words or sounds. Section 2. It shall be unlawful for any person, by the means of any picture or pictures, representation, machine, or mechanical contriv- ance or device of any kind to exhibit, expose, or cause to be exhibited or exposed, to the view of any person any figure, picture or object that is ob- scene, indecent, vulgar or lewd. Section 3. It shall be unlawful for any person to own, have in his possession, under his control, operate, manufacture or to assist in the man- ufacture of, or barter, or exchange, or give away or sell, or offer for sale, or otherwise dispose of, any instrument, picture, representation, machine device or mechanical device or contrivance used or designed to be used for any of the purposes prohibited in the two preceding sections or to be a witness to any such exhibition, representation, reproduction or repetition. Section 4. Any person violating any of the provisions of this Or- der shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than fifty (50) dollars gold coin of the United States, nor more than two hundred (200) dollars, or by imprisonment in the County Jail for not less than fifty (50) days nor more than two hundred (200) days.

ORDINANCE NO. 819 Prohibitingthe Wearing of Apparel of Opposite Sex

ApprovedJune 11, 1903. Section 1. It shall be unlawful for any person to appear in public, with intent to deceive, in the dress, clothing or apparel not belonging to or usually worn by persons of his or her sex.-As amended by Ordinance No. 5912 (New Series). Section 2. Any person who shall violate any of the provisions of this Ordinance shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed five hundred (500) dol- lars, or by both such fine and imprisonment.

ORDINANCE NO. 835 Prohibit the Use of Profane or Obscene Language

ApprovedJune 11, 1903 Section 1. It shall be unlawful for any person to utter, within the hearing of two or more persons, any bawdy, lewd, obscene or profane lan- guage, words or epithets, in a public place or highway. Section 2. Any person who shall violate any of the provisions of this Ordinance shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed five hundred (500) dol- lars, or by imprisonment in the County Jail for not more than six (6) months, or by both such fine and imprisonment.

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ORDINANCE NO. 1059. ProhibitingLewd, Indecent or Obscene Acts Approved November 25, 1903 Section 1. It shall be unlawful for any person to engage in or be a party to or to solicit or invite any other person to engage in or be a party any lewd, indecent or obscene act or conduct. Section 2. Any person who shall violate any of the provisions of this ordinance shall be guilty of a misdemeanor and, upon conviction thereof, will be punished by a fine not to exceed five hundred (500) dol- lars, or by imprisonment in the County Jail for not more than six (6) months, or by such fine and imprisonment.

ORDINANCE NO. 1335 Prohibitingthe Distributionor Circulationof Hand-Billsfor Advertising ImproperMatter... Approved November 25, 1904 Section 1. It shall be unlawful for any person, company, associa- tion or corporation to distribute or circulate or cause to be distributed or circulated upon any street or sidewalk, or in any doorway or in any en- trance to any building or premises any obscene, lewd or lascivious book, pamphlet, picture, paper, writing, letter, print or other matter of indecent character, or procuring of abortion, or any written or printed book, pam- phlet, picture, paper, letter, circular, advertisement or notice of any kind giving information directly or indirectly where, how or of whom or by what means any of the hereinbefore mentioned articles, matters or things may be obtained or made, or referring in any manner to venereal diseases or the treatment thereof. Section 2. Any person, company, association or corporation who shall violate any of the provisions of this Ordinance shall be guilty of a mis- demeanor and, upon conviction thereof, shall be punished by a fine not to exceed five hundred (500) dollars, or by imprisonment int he County Jail for not more than six (6) months, or by both such fine and imprisonment.

ORDINANCE NO. 1363. ProhibitingExposing to Public View or Distribut- ing Circular,Papers etc., Representing Any Indecent or Immoral Act, and Indecent Advertising on Fences Approved December 15, 1904 Section 1. No person shall expose to public view, or distribute any circular, bill, paper, certificate, card, notice or advertisement purporting to treat or cure diseases of the sexual organs, or representing the sexual or- gans of any animals, or indicating any lewd or indecent or immoral act, or representation of any kind, character or description or purporting to, or suggesting the performance or practice of abortion, and proof of the fact that such circular, bills, papers, cards, certificates or advertisement have been issued or distributed, or caused to be issued or distributed, shall be prima facie evidence of the violation of the provisions of this Ordinance by

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the person, firm or corporation whose name appears thereon.-As amended by Ordinance No. 847 (New Series), approved July 27, 1909. Section 2. No person shall post, place, stick, stamp, paint or oth- erwise affix any bill, poster, notice or advertisement purporting to treat or cure diseases of the sexual organs, or representing the sexual organs of any animal or indicating any lewd or indecent or immoral act or representa- tion of any kind, character or description, to or upon, or maintain or suffer to remain on or upon, any house or part thereof, wall, fence, gate- post, sidewalk, trees or boxes around trees, or upon any lot or premises. Section 3. Any person who shall violate any of the provisions of this Ordinance shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed five hundred (500) dol- lars, or by imprisonment in the County jail for not more than six (6) months, or by both such fine and imprisonment.

ORDINANCE NO. 1360 Prohibitingthe Disturbance of the Public Peace and the Use of Obscene and Profane Language. Approved December 23, 1904 Section 1. No person shall make in any place, or suffer to be made upon his premises, or premises within his control, any noise, disor- der or tumult, to the disturbance of the public peace. Utter within the hearing of two or more persons, any bawdy, lewd, ob- scene or profane language, words or epithets. Address to another, or utter in the presence of another any words lan- guage or expression having a tendency to create a breach of the peace. Utter, in any public place, or utter in the presence or hearing of ten or more persons, any slanderous or vile or indecent words or epithets of or concerning any person, present or absent, unless (the burden or proving which shall devolve on the defendant) such slanderous, vile or indecent words or epithets were true and were uttered with good motives and for justifiable ends. Section 2. Any person who shall violate any of the provisions of this Ordinance shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not to exceed five hundred (500) dol- lars, or by imprisonment in the County Jail for not more than six (6) months, or by both such fine and imprisonment.

ORDINANCE NO. 920 (New Series). Prohibiting... Any PictorialRepre- sentation of the Sexual Organs of a Human Being... Approved October 28, 1909 Section 1. It shall be unlawful for any person, company, associa- tion or portion to exhibit or display or cause to be exhibited or displayed, at point or place within the City and County of San Francisco, for the pur- pose of advertising any profession, business, trade or thing, any figure or model or cast of wax or of any other composition, or for such purpose to

HeinOnline -- 82 Iowa L. Rev. 1130 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1131 exhibit or display, or cause to be exhibited or displayed, any picture, etch- ing, print, cut or other pictorial representation of or purporting to be a representation or fac-simile of the sexual organs of a human being. Section 2. It shall be unlawful for any person, association, com- pany or corporation to exhibit or display or cause to be exhibited or dis- played, within the City and County of San Francisco, for the purpose of ad- vertising the cure or treatment of venereal diseases any of the objects men- tioned in Section 1 of this Ordinance. Section 3. Any person, company, association or corporation who, or which, shall violate any of the provisions of this Ordinance shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not exceeding five hundred (500) dollars, or by imprisonment in the County Jail not more than six (6) months, or by both such fine and imprisonment.

ORDINANCE NO. 959. (New Series.) Regulating TheatricalExhibitions, Peformance and PublicEntertainments

December 3, 1909 Section 1. It shall be unlawful for any person, firm or corporation to hold, conduct or carry on, or to cause or to permit to be held, conduct- ed or carried on, any theatrical performances, exhibitions, or any enter- tainment of any sort, which is offensive to decency or is adapted to excite vicious or lewd thoughts or acts, or which is lewd or obscene or indecent or immoral nature or so suggestive as to be offensive to the moral sense. Section 2. Any person, firm, association or corporation violating any provision or provisions of this Ordinance shall be declared guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than one hundred (100) dollars or more than five hundred (500) dollars, or by imprisonment in the County Jail for the period of not less than thirty (30) days or more than six (6) months, or by both such fine and imprisonment.

ORDINANCE NO 761 (New Series) Regulating Moving PictureExhibitions and Entertainments at Which Moving Pictures Are Exhibited

Approved May 13, 1909 Section 1. It shall be unlawful for any person, firm or corporation to hold conduct or carry on, or to cause or to permit to be held, conduct- ed or carried on any moving picture exhibition or any entertainment at which moving pictures are exhibited, without first applying for and receiv- ing a permit therefor in writing from the Board of Police Commissioners in the manner hereinafter provided. Any person, form or corporation desiring to obtain a permit to hold conduct or carry on a moving picture exhibition or any entertainment at which moving pictures are exhibited shall file an application in writing therefor with the Board of Police Com- missioners specifying by street and number the place where such exhibi-

HeinOnline -- 82 Iowa L. Rev. 1131 1996-1997 1132 82 IOWA LAW REVIEW [1997] tion or entertainment is proposed to be held, conducted, or carried on, which said application shall be signed by the applicant and shall contain the address of such applicant. Section 2. It shall be unlawful for any person, firm, association or corporation to display, or cause or permit to be displayed at any moving picture exhibition or at any entertainment at which moving pictures are exhibited, any picture, illustration or delineation of any nude human fig- ure or of any lewd or lascivious act, or of any other matter or thing of an obscene, indecent or immoral nature, or offensive to the moral sense, or (in such detail as to offend public morality and decency) any murder, sui- cide, robbery, holdup, stabbing, assaulting, clubbing or beating of any hu- man being. Section 3. In the event that any person, firm or corporation hold- ing a permit to conduct or carry on a moving picture exhibition, or in en- tertainment at which moving pictures are exhibited, shall violate or cause or permit to be violated, any of the provisions of this Ordinance, or shall conduct such moving picture exhibition or such entertainment, or the place wherein the same is conducted or carried on in an unlawful, inde- cent or immoral manner, or shall cause or permit the same to be conduct- ed or carried on, the Board of Police Commissioners shall, in addition to the other penalties provided by theirs Ordinance, revoke the permit issued for the conducting or carrying on of such exhibition or entertainment. No permit shall be revoked until a hearing shall have been had by the Board of Police Commissioners in the matter of the revocation of such per- mit, notice of which hearing shall be given in writing and served at least five days prior to the date of the hearing upon the holder of such permit, his manager or agent, which notice shall state the ground of complaint against the holder of such permit or against such exhibition or entertain- ment, and shall also state the time and place where such hearing will be had. Such notice shall be served upon the holder of such permit or agent by delivering the same to such person, or to his manager or agent, or to any person in charge of or employed in the place where such entertain- ment or exhibition is conducted, or by leaving such notice at the place of business or residence of such person with some person or suitable age and discretion. If the holder of such permit cannot be found, and service of such notice cannot be made upon him in the manner herein provided, then a copy of such notice shall be mailed, postage fully prepaid addressed to such holder of such permit at such place of business, at least five days prior to the date of such hearing. Section 4. For the purpose of enforcing the provisions of this Ordinance and preventing immoral pictures being displayed and acts of violence depicted in such detail as to offend public morality and decency, an advisory committee is hereby authorized, whose duty it shall be to in- spect all moving pictures being displayed or exhibited, and all moving pic- tures intended for exhibition, prior to their being displayed. It shall be the duty of said advisory committee to prosecute or cause to be prosecuted by proper legal proceedings, all persons, firms, associations or corporations

HeinOnline -- 82 Iowa L. Rev. 1132 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1133 who violate any of the provisions of this Ordinance. The public exhibition of any picture thus objected to shall be deemed sufficient cause for the revocation of any permit therefore granted by the Board of Police Commis- sioners. Said advisory committee shall be constituted and appointed as fol- lows: One member of such committee shall be appointed respectively by the Mayor, by the Board of Educations, the Board of Police Commission- ers, the Society for the Prevention of Crucify to Children and the Moving Picture Exhibitors' Association, each member to serve during the pleasure of the officer or body making the appointment. Said advisory committee, and the members thereof, shall have the right to freely enter any place or building wherein moving pictures are dis- played or entertainments given, at any or all times, for the purpose of in- specting any pictures that may be exhibited, or in the performance of any duty required to be performed by this Ordinance.

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APPENDIX 6 MUNICIPAL SEX OFFENSES77

Cross Indecent Lewd Obscene Immoral Indecent Dress Exposure Solicit Books Plays Films and Acts

Akron 1921c 1921c 1921c Atlanta ((1873o)) 1873o 1873o 1873o 1942c Baltimore 1879c Battle Creek 1883o 1883o 1883o Birmingham (1917c) 1917c 1917c 1917c 1917c Boise 1922c 1922c Buffalo 1939c 1939c 1939c Butte 1885o 18850 1885o 1885o Cedar Rapids 1906c 1929c 1929c 1906c 1906c Cha'ston SC 1858o 1858o 1858o Ch'ston WV 1942c 1942c 1942c Charlotte ((1915c)) 1915c 1915c 1915c 1915c Cheyenne ((1938c)) 1938c 1938c Chicago 1851o 1851o 1911c 18510 1851o 1908o Cicero IL 1897c 1897c 1897c Cincinnati 1848o 1856o 1849o 1856o Cleveland 1924c 1854o 1924c 1890c 1890c 1924c Columbia MO 1916o 1916o 1916o 1916o Columbia SC Columbus OH 1848o 1848o 1919c 1919c 1919c Dallas 1911c 1911c 1911c Dayton 1842o 1849o Denver 1886c 1886c 1886c 1886c Detroit 195?o 1870o 1924o 1870o 1906c 1907o 1892o El Paso (1903c) 1903c 1903c 1903c

377. This Appendix surveys criminal prohibitions regulating same-sex intimacy in selected American cities, including most of the urban centers for sexual inverts and homosexuals. (The category "Lewd Solicitation," for example, only includes ordinances written broadly enough to include or even target solicitation for "unnatural" practices or same-sex intimacy.) The Appendix draws from published municipal codes. The dates are the earliest for which particular laws have been found, with "c" referring to a code, "o" referring to the date an ordinance was actually adopted, and "s" referring to state statutes (for New York City only, whose municipal regulation was by the state legislature). To my mind, the most interesting municipal regulations are those prohibiting cross- dressing, usually expressed as "dress [or attire] not belonging to his or her sex." I have included, with parentheses, ordinances prohibiting appearing in "disguise" or "mask" or par- ticipating in a "masquerade" in public, ordinances that were applied to cross-dressers. Less clear, and therefore placed in double parentheses, are ordinances prohibiting "indecent or lewd attire," which may have been applied to cross-dressers.

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Cross Indecent Lewd Obscene Immoral Indecent Dress Exposure Solicit Books Plays Films and Acts

Grand Rapids 1873o 1873o 1920o 1920o 1875o Green Bay ((1911c)) 1911c Houston 1861o 18610 1942c 1922c Indianapolis ((1951c)) 1869o 1892c 1869o 1951c 1951c Kansas City 1860o 1860o 18600 1860o 1928c 1889o 1889o 1889o 1889o Lincoln 1936c 1936c 1936c 1936c Little Rock 1868o 1891o 1868o Los Angeles (1898o) 1885o 1955c 1936c 19050 19080 1936c Louisville 1853o 1898o Madison 1931c 1931c 1931c Memphis 1909c 1909c 1931c 1909c 1931c Miami 1956o 1945c 1955o 1952o Miami Beach 192?o 192?o 193?o 192?0 Milwaukee 1906c 1906c Minneapolis 1877o 1877o 1919o 1877o 1877o Nashville 1881c 1881c 1917c 1881c New Orleans (1856o) 1856o 1856o ((18910)) 1891o 1956c 1889o Newark 1858o 1858o 1858o 18580 Newport News 1941c New York City (1881c) 1881c 1900s 1881c 1927s 1922s 1923s 1923s Norfolk 1916o 1944c 1944c 1944c Oakland 1879o 1899o (1899o) Oklahoma C 1936c 1936c 1936c Omaha 1890c 1890c 1890c 1890c 1941c Orlando 1948c 1948c 1952c Pensacola 1920c 1920c 1920c 1920c Peoria 1884c 1884c 1884c 1884c Philadelphia Phoenix 1914o 1914o 1914o Pittsburgh 1915o 1927o 19110 Raleigh Reno Richmond 1885c 1885c 1913c Roanoke 1939c 1939c 1909c 19100 19100 Salt Lake City ((1880o)) 1872o 1872o 18880 Santa Barbara 189?o 189?o 189?o San Diego 1895o 1896o 1926o San Francisco 1866o 1866o 1874o 1874o 1866o 1903o 19030 19030 19090 19090 San Jose 1882o 1882o 1882o 1882o Sarasota 1919o 1919o 19190 St. Louis 1864o 1864o 1864o 1864o Savannah 1918c Sioux City IA ((1882o)) 1882o 1943c 1882o 1882o

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Cross Indecent Lewd Obscene Immoral Indecent Dress Exposure Solicit Books Plays Films and Acts

Sioux Falls SD ((1882o)) 1882o 19010 1882o 1882o 1908o ((19010)) 1882o 19010 19010 Springfield 1856o 1856o 1856o 1856o 1921c Tampa ((1908c)) 1908c 1908c 1926c Toledo 1862o 1858o 1917o 1858o Topeka 1935o 1915o 1915o Tulsa ((1917c)) 1917c 1917c 1917c 1917c Tuscon 1883o 18830 1883o 1883o W Palm Beach 1926c 1926c 1926c 1926c Wilm'ton DE 1856o 1865o 1896o Wilm'ton NC 1913c 1913c 1913c 1913c Wichita 1899o 1936o 1899o 1926o 1923o

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