PRIVACY JURISPRUDENCE AND THE APARTHEID OF THE CLOSET, 1946-1961 WILLIAM N. ESKRIDGE, JR.* INTRODU CTION ........................................................................................................ 703 I. TERROR: THE STRAIGHT-THREATENING CLOSET ............................................... 708 A. CriminalLaw: Hunting the Homosexual ................................................... 710 1. Laws to Suppress and Erase the Sex Pervert ...................................... 711 2. Flushing Out the Homosexual: Spies, Decoy Cops, Raids................... 717 3. Anti-Homosexual Panicsand Manias ................................................. 724 B. Employment Law: Subversion, Blackmail, and Immorality in G overnm ent Service .................................................................................... 733 1. Supermania: The Creation of FederalAnti-Homosexual Exclusions, 194 7-1952 ............................................................................................. 733 2. The Federal Witch Hunts, 1953-1961 ........................... 742 3. Witch H unts at the State Level ............................................................ 746 C. State Suppression of Homosexual Association and Expression ................ 753 1. Surveillance and Harassment.............................................................. 754 2. Censorship of Homophile Media .......................................................... 757 3. Closing Down Homosexual Socialization............................................ 761 II. SURVIVAL: THE MUTUALLY PROTECTIVE CLOSET .............................................. 766 A. Substantive Privacy (Criminaland Military)............................................ 773 1. Legislative Policy: Refocusing State CriminalLaw ............................ 773 2. Judicial Policy: The Rule of Lenity ...................................................... 777 3. Military Policy: The CrittendenReevaluation ..................................... 781 B. ProceduralPrivacy (Criminal) ................................................................... 783 1. Due Process Protectionsfor the Homosexual Defendant ..................... 783 2. Judicial Monitoring of Police Tactics .................................................. 785 3. E videntiary R ules ................................................................................. 788 C. Substantive and ProceduralPrivacy (Civil) .............................................. 791 III. RESISTANCE: THE GAY-THREATENING CLOSET ................................................. 795 A. Freedom of Association (The Homophile Organizationsand Bar Cases).. 800 B. Freedom of Expression and Press (HomophilePublications and Obscenity) 804 C. Equal Treatment (The New Wave of Employment Cases) ......................... 809 CONCLUSION: THE DISCOURSES OF PRIVACY AND EQUALITY ..................................... 811 INTRODUCTION The sacking of Sumner Welles was a harbinger. A cold, brilliant patrician, Welles was a schoolmate and lifetime chum of President Franklin D. Roosevelt.1 Roosevelt appointed Welles Under Secretary of State, a position from which Welles essentially controlled United * Professor of Law, Georgetown University Law Center. This Article is the pub- lished version of the Mason Ladd Lecture, delivered at the Florida State University Col- lege of Law on April 1, 1996. I am grateful to Ann McGinley and Jeff Stempel for com- ments on the lecture and later drafts of this Article. I also thank the law library staff at the Florida State University College of Law for assisting me with locating many Florida sources, and the staff of the Florida Department of State, Division of Archives, for facili- tating my use of the Johns Committee papers, series 1486. 1. See IRWIN F. GELLMAN, SECRET AFFAIRS: FRANKLIN ROOSEVELT, CORDELL HULL, AND SUMNER WELLES 60 (1995). HeinOnline -- 24 Fla. St. U. L. Rev. 703 1996-1997 704 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 24:703 States foreign policy.' In 1941, FBI Director J. Edgar Hoover sup- plied Roosevelt with information pertaining to Welles's homosexual activities,3 but Roosevelt was unfazed. Armed with complaints that Welles had solicited sex from black railroad porters, U.S. Ambassa- dor to France William Bullitt argued to the President that the maintenance of Welles in public office was a menace to the country since he was subject to blackmail by foreign powers [which] had used crimes of this kind to get men in their power; and that . a terrible public scandal might arise at any time which would undermine the confidence of the country in him, the Presi- 4 dent. According to Bullitt, Secretary of State Cordell Hull "considered Welles worse than a murderer," and "morale in the Department of State and the Foreign Service was being ruined by the knowledge that a man of the character of Welles was in control of all appoint- ments and transfers."5 On the eve of war with Hitler, it was impera- tive to rid the State Department of "criminals" like Sumner Welles, argued Bullitt. 6 Roosevelt, fully aware of Welles' sexual crimes, nonetheless refused to believe that any newspaper would publish such a scandal.7 Only after Bullitt supplied Republican Senator Ralph 0. Brewster of Maine with information pertaining to Welles's notorious homosexual activities, and Brewster threatened to launch a Senate probe,' did Roosevelt ask Welles for his resignation.' The firing of Welles, whom Bullitt described as Roosevelt's "Achilles Heel,"'10 reflected the emergence of the closet as the residing place for homosexuals. Roosevelt and Welles assumed that Welles could lead a "double life"-that Sumner Welles the criminal was seg- regable from Sumner Welles the friend and public servant-as long as his homosexuality remained closeted in secrecy. Prior to the 1940s, same-sex intimacy was literally unspeakable, as the homo- sexual and society conspired to keep the matter secret. By the 1940s, however, the edges separating the two halves of the double life were eroding, as greater numbers of homosexuals transgressed the lines separating public and private spheres and more heterosexuals be- came curious about the secret life, either to condemn it, to explore it, 2. See id. at 130-31; see also David K. Johnson, "Homosexual Citizens": Washington's Gay Community Confronts the Civil Service, WASH. HIST., Fall-Winter 1994-95, at 50. 3. See GELLMAN, supra note 1, at 236-37. 4. FOR THE PRESIDENT: PERSONAL AND SECRET, CORRESPONDENCE BETWEEN FRANKLIN D. ROOSEVELT AND WILLIAM C. BULLITT 513 (Orville H. Bullitt ed., 1972). 5. Id. 6. Id. at 513-14. 7. See id. at 513. 8. See id. 9. See id. at 514-16. 10. Id. at 515. HeinOnline -- 24 Fla. St. U. L. Rev. 704 1996-1997 1997] APARTHEID OF THE CLOSET 705 or both. The erosion required the homosexual to decide whether to openly admit homosexuality or to keep the private life closeted and separate from the public one for fear that exposure of the former could destroy the latter. While the closet has become the classic metaphor for homosexual secrecy, 1 it is of surprisingly recent origin, not gaining currency un- til after World War II. The earliest reference I have found is in John Burns' 1949 Lucifer with a Book, whose characters "come out of the cloister" and into the life.12 Thus, the idea of coming out of the clois- ter began as a metaphor for a homosexual's entry into the under- ground gay subculture, not unlike the "coming out" of a debutante into society."3 The 1950s invoked the closet as the place where pri- vate skeletons and personal secrets are hidden. 14 By the 1960s some gay people were using "coming out" as an expression for the homo- sexual's sharing her or his own private skeleton in the closet with straight people. Whereas homosexuals confronted the possibility of coming out of the closet, some heterosexuals were obsessed with casting them out. To fight against "homosexual recruiting of youth," Florida's Legislative Investigation Committee wrote in 1964, "the closet door must be thrown open and the light of public understand- ing cast upon homosexuality."" These references (there are many others) illustrate not only how slowly the vocabulary of the closet was worked out, but also how the closet can be either protective or threatening.6 For the homosexual, it could be an embracing even if temporary cocoon, or it could be a scary prison. For heterosexuals, the closet likewise could have two different kinds of meanings, either a place where skeletons are se- ll. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET (1990); Robert Dawidoff, In My Father's House Are Many Closets, in CHRISTOPHER STREET, Apr. 1989, at 28-41. 12. ROGER AUSTEN, PLAYING THE GAME: THE HOMOSEXUAL NOVEL IN AMERICA 110 (1977) (quoting John Burns discussing Lucifer with a Book). The central character, Guy Hudson, is a boys' school instructor of intense but ambiguous sexuality. The only clue to his preferences is a lewd Renaissance print of a man having sex with another man and a woman. This print is stored in Hudson's dormitory closet. See JOHN HORNE BURNS, LUCIFER WITH A BOOK 105-06 (1949). Other characters make homosexual advances to Hudson by seeking to bring the print out of the closet. See, e.g., id. at 132-33. 13. See GORE VIDAL, THE CITY AND THE PILLAR 154 (rev. ed. 1965). "I've been invited to a faggot party," matinee idol Ronald Shaw told Jim Willard. "I'll take you. It can be your coming-out party in New York." Id. 14. See Marlin Prentiss, Are Homosexuals Security Risks?, ONE, Dec. 1955, at 4. Prentiss explained the ironies of denying