Hofstra Law Review Volume 25 | Issue 3 Article 7 1997 Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981 William N. Eskridge Jr. Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Eskridge, William N. Jr. (1997) "Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981," Hofstra Law Review: Vol. 25: Iss. 3, Article 7. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol25/iss3/7 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Eskridge: Challenging the Apartheid of the Closet: Establishing Conditions CHALLENGING THE APARTHEID OF THE CLOSET: ESTABLISHING CONDITIONS FOR LESBIAN AND GAY INTIMACY, NOMOS, AND CITIZENSHIP, 1961-1981 William N. Eskridge, Jr.* CONTENTS INTRODUCTION ............................... 819 I. PROTECTING PRIVATE GAY SPACES: DuE PROCESS AND FOURTH AMENDMENT RIGHTS ....................... 828 A. Due Process Incorporationof the Bill of Rights (CriminalProcedure) ....................... 830 1. The Warren Court's Nationalization of the Rights of Criminal Defendants .............. 830 2. Criminal Procedural Rights as Protections for Homosexual Defendants ....... 832 3. Criminal Procedural Rights and Gay Power ..... 836 B. Substantive Due Process and Repeal or Nullification of Sodomy Laws (The Right to Privacy) .......... 842 C. Vagueness and Statutory Obsolescence ........... 852 1. Sodomy Laws ......................... 855 2. Lewdness and Sexual Solicitation Laws ....... 857 3. Cross-Dressing Ordinances ................ 861 * Professor of Law, Georgetown University Law Center. An earlier version of this Article was delivered at Hofstra University School of Law as the Visiting Scholar in Residence Lecture, on October 16, 1996. I appreciate the opportunity to have presented the lecture and the wonderful feedback I received from students, faculty, and other guests of the law school. This Article is a continuation of and supplement to the project begun by Rhonda R. Rivera, Our Straight-LacedJudges: The Legal Position of Homosexual Persons in the United States, 30 HASTINGS L.L 799 (1979). Published by Scholarly Commons at Hofstra Law, 1997 1 Hofstra Law Review, Vol. 25, Iss. 3 [1997], Art. 7 HOFSTRA LAWREVIEW [Vol. 25:817 II. ASSURING SPACE FOR LESBIAN AND GAY SUBCULTURES: FIRST AMENDMENT RIGHTS ......................... 863 A. The Right of Association ..................... 866 1. Gay Bars and Bathhouses ................. 867 2. Gay Organizations and Churches ............ 874 3. Gay Student Clubs ...................... 880 B. Freedom of the Press ....................... 883 1. Lesbian and Gay Literature and Print Media .... 885 2. Homoerotica .......................... 890 3. The Lesbian and Gay Media ............... 895 a. M ovies ........................... 896 b. Radio ............................ 899 c. Television ......................... 902 C. Freedom of Speech (The Right to Come Out) ....... 905 I. ALLOWING OPENLY GAY PEOPLE SPACE IN PUBLIC CULTURE: DUE PROCESS AND EQUAL PROTECTION RIGHTS ........ 909 A. Employment Exclusions ...................... 911 1. Federal Civil Service Exclusions: Collapse ..... 911 2. Federal Military Exclusion: Standing Firm ..... 918 3. State and Municipal Governments: From Exclusion to Protection of Gay Employees ..... 922 B. Immigration and NaturalizationExclusions ........ 930 1. Unsuccessful Challenges to the Exclusions, 1961-1969 ................... 930 2. The Courts and the Immigration and Naturalization Service Limit the Naturalization Exclusion, 1971-1981 .......... .933 3. The Public Health Service Pushes the Immigration and Naturalization Service to End the Immigration Exclusion, 1970-1981 934 C. Families We Choose ........................ 939 1. Same-Sex Marriage ..................... 940 2. Legal Relationships Short of Marriage ........ 946 3. Custody of Children from Prior Marriages ...... 949 CONCLUSION: GAYLEGAL EXPERIENCE AND AMERICAN PUBLIC LAW ........................ 952 APPENDICES ................................. 961 http://scholarlycommons.law.hofstra.edu/hlr/vol25/iss3/7 2 Eskridge: Challenging the Apartheid of the Closet: Establishing Conditions 19971 CHALLENGING THE APARTHEID OF THdE CLOSET INTRODUCTION The homosexual in 1961 was smothered by law.' He or she risked arrest and possible police brutalization for dancing with someone of the same sex, cross-dressing, propositioning another adult homosexual, possessing a homophile publication, writing about homosexuality without disapproval, displaying pictures of two people of the same sex in intimate positions, operating a lesbian or gay bar, or actually having sex with another adult homosexual. Arrest meant more than a file and an overnight stay in jail. Misdemeanor arrests for sex-related vagrancy or disorderly conduct offenses meant that the homosexual might have his or her name published in the local newspaper, would probably lose his or her job, and in several states would have to register as a sex offender (assuming conviction). In some states, the convicted homosexual lost his or her driver's license. If the homosexual was not a citizen, he or she would likely be deported. If the homosexual were a professional-a teacher, lawyer, doctor, mortician, beautician-he or she would likely lose the certification needed to practice that profession. Having oral or anal intercourse with someone of the same sex was the worst thing a homosexual could do in America circa 1961. Consensual homosexual intercourse was a serious crime in all the states, and a felony in all but one; several states imposed life sentences. A felony conviction (and in some states merely being charged) subjected the homosexual to special psychiatric evaluation as a potential "sexual psychopath." If found to be such a creature, the homosexual was incarcerated indefinitely in a mental institution which, for many inmates, was a horror chamber of electro- shock and mental torture, and for some, a life sentence. If the charged homosexual was a member of the armed forces, he or she might be court martialed and would likely be dishonorably discharged, thereby losing all veterans' benefits, however distinguished his or her service record. Fear of social and familial ostracism kept most homosexuals in the closet. The law sealed that closet shut for most gays and lesbians, while at the same time, outing others in state-sponsored witchhunts. It is those who were outed who transformed both the law and the homosexual existence, and that transformation began in earnest during 1961.2 1. Background can be found in William N. Eskridge, Jr., Privacy Jurisprudenceand the Apartheid of the Closet, FLA. ST. U. L. REV. (forthcoming 1997). 2. I choose 1961 as a pivotal date because it marked a generational transition away from the traditionalism of the Eisenhower Administration, the due process jurisprudence of Felix Frankfurter, and the apologists of the Mattachine Society and Daughters of Bilitis. In 1961, John Kennedy opened a New Frontier in American politics, the Warren Court began shifting decisively toward the Published by Scholarly Commons at Hofstra Law, 1997 3 Hofstra Law Review, Vol. 25, Iss. 3 [1997], Art. 7 HOFSRA LAW REVREW [Vol. 25:817 The year 1961 was homosignificant on both coasts. In November, Dr. Franklin Kameny and a handful of others founded the Mattachine Society of Washington, D.C. ("MSW") as a more aggressive minority rights group.' Whereas the West Coast homophile groups from the 1950s sought to persuade straight society to tolerate homosexuals who would occupy a mutually protective closet, MSW insisted upon equal rights for the "homosexual minority." The stated goals of the group were: to "secure for homosexuals the basic rights and liberties established by the word and spirit of the Constitution of the United States"; "[t]o equalize the status and position of the homosexual with those of the heterosexual by achieving equality under law, equality of opportunity, equality in the society of his fellow men, and by eliminating adverse prejudice, both private and officiar'; and "[t]o secure for the homosexual the right, as a human being, to develop and achieve his full potential and dignity, and the right, as a citizen, to make his maximum contribution to the society in which he lives."4 This statement of purpose represented an intellectual turning point in the history of the closet: homosexuals insisted upon equality as uncloseted citizens, not liberty engendered by a protective closet. The main practical agenda of MSW was to confront harassment of homosexuals by the federal and district governments. At the August 1961 organizational meeting for MSW, Kameny was alerted that one of the sixteen men present was Lieutenant Louis Fochet of the District of Columbia Morals Squad. Kameny announced, "I understand that there is a member of the Metropolitan Police Department here. Could he please identify himself and tell us why he's here?"' Thus outed by an out-of- the-closet homosexual, Fochet skulked out. Kameny and MSW followed the same unashamed approach in dealings with all branches of govern- path-breaking rights jurisprudence of Hugo Black and William Douglas, and a new generation of homosexuals