Sexual Injustice: Supreme Court Decisions from Griswold to Roe

By Marc Stein | Go to book overview

2 :
Consistent Conservatism in Boutilier

In the 1967 Boutilier case, the Court acted in accordance with its heteronormative doctrine when six of nine justices upheld a 1952 federal law authorizing the Immigration and Naturalization Service (INS) to exclude and deport aliens “afflicted with psychopathic personality,” a phrase the INS and the Court understood to refer to “homosexuals.” Insofar as the rights of psychopaths were severely circumscribed in the United States, Boutilier had important implications for everyone classifiable as homosexual, but especially for aliens.1

Boutilier was not the Court’s first gay rights case. In ONE (1958), five justices rejected a lower court’s obscenity ruling against a homophile magazine, and in Manual (1962) six justices overturned the Post Office’s designation of three male physique magazines as obscene. Then in Rosenberg (1963), five justices vacated a ruling that had upheld the deportation of a “homosexual” alien. The meaning of ONE, however, was unclear since the magazine featured neither erotic photographs nor sexually explicit prose and the Court did not explain its reasoning. Manual was also ambiguous, since one justice concurred without comment and three did so on procedural grounds. As for Rosenberg, the basis of this ruling was the claim that George Fleuti’s return to the United States from a one-day trip to Mexico in 1956 did not constitute re-entry and therefore Fleuti’s entry date was in 1952, before the psychopathic personality law took effect. These rulings did not indicate that “homosexual” and “heterosexual” speech would be judged by the same standards or that “homosexual” and “heterosexual” immigrants would be evaluated by the same criteria. Then in Mishkin (1966), the Court indicated that materials designed for and disseminated to sexual “deviants” would be judged by special standards and that its obscenity tests could be revised when the existing ones did not yield the results desired.2

In other cases before Boutilier, the justices reviewed antigay lower court rulings and either declined to accept the appeals for argument or issued summary dismissals. This occurred in several immigration cases highlighted below, as

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Sexual Injustice: Supreme Court Decisions from Griswold to Roe
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Introduction 1
  • Part 1 - Decisions and Doctrines 25
  • 1 - Liberalization’s Limits from Griswold to Roe 27
  • 2 - Consistent Conservatism in Boutilier 57
  • Part 2 - Activists and Advocates 95
  • 3 - Liberalization’s Lawyers 97
  • 4 - Boutilier’s Defenders 133
  • 5 - Boutilier’s Defense 171
  • Part 3 - Readings and Readers 205
  • 6 - Remembering Griswold to Roe 207
  • 7 - Forgetting Boutilier 243
  • Epilogue 279
  • Notes 303
  • Acknowledgments 345
  • Index 349
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