Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada

THE ACTIVITY OF the U.S. Supreme Court and other federal courts demonstrates the influence of political culture on courts, in that even they are often unable to transcend the barriers of a dominant political discourse. The Supreme Court has been generally unwilling to view gay rights claims in a way that extends beyond a negative conception of freedom and rights (and has not even been willing to apply this negative conception in some cases) and has been, until quite recently, reluctant to offer a robust defense of gay rights claims. Indeed, extreme discomfort with gay rights claims, often tending toward animus, typifies the approach of the Court for most of the twentieth century.¹

One of the earliest gay rights cases in the Supreme Court, ONE v. Olesen, turned out favorably for gay rights claims, but not because of increasing legal support for gay rights claims. Rather, the result was reflective of the Court's increasing freedom of expression-protective obscenity jurisprudence. In the 1950s, the Los Angeles postmaster seized and refused to deliver copies of a magazine about homosexuality, claiming it to be obscene under federal and state obscenity laws. The magazine was not pornographic in nature, it merely included letters, articles, and stories that dealt frankly with homosexuality. The editors of ONE challenged the postmaster's decision, but, agreeing with the postmaster, a federal district judge rebuffed their challenge, and the Ninth Circuit Court of Appeals upheld this ruling. Interestingly, the editors reached out to the American Civil Liberties Union (ACLU) for assistance but were denied support.² In finding the magazine obscene, the Ninth Circuit characterized the depiction of a lesbian relationship in one of the magazine's stories as [nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view.]³ The magazine might be fine for homosexuals, the judges reasoned, but this was not constitutionally sufficient: [An article may be vulgar, offensive and indecent even though not regarded as such by a particular group of individuals constituting a small segment of the population because their own social or moral standards are far below those of the general community.]⁴

This language is not surprising, given the political climate surrounding sexual minorities in the 1950s (indeed, the federal government was waging a campaign against sexual minorities),⁵ but it was out of step with evolving First Amendment jurisprudence. A year before, the Supreme Court ruled in Roth v. United States that material bearing some relationship to social, political, or literary speech was immune from obscenity classifications and thus protected by the First Amendment.⁶

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