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 (New York) ......... 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. 1007 HeinOnline -- 82 Iowa L. Rev. 1007 1996-1997 1008 82 IOWA LAWREVIEW [1997] 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 Homosexuality 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 New York City'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 HeinOnline -- 82 Iowa L. Rev. 1008 1996-1997 REGULATION OF SAME-SEX INTIMACY, 1880-1946 1009 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 sexual orientation. 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 Gay Men in the U.SA 82-90 (1976) [hereinafter Katz, Gay American History] and Lisa Duggan, The Tials of Alice Mitchel Sensationalism, Sexology, 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 obscenity 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 prostitution, which was the biggest regulatory concern for most of the period under discussion. Like the invert and then