Sexual Injustice: Supreme Court Decisions from Griswold to Roe

By Marc Stein | Go to book overview

5 :
Boutilier’s Defense

Boutilier’s advocates used multifaceted legal arguments and rhetorical strategies when they argued his case before the Supreme Court. The main argument made by Blanch Freedman, assisted by Robert Brown and David Freedman, was that Boutilier’s due process rights had been violated. First, while the 1952 Immigration and Nationality Act provided for the deportation of aliens afflicted with psychopathic personality, the law was administered as though it provided for the deportation of aliens who engaged in homosexual acts. In this respect, the law was unconstitutionally vague, making Boutilier vulnerable to arbitrary administrative decisions and depriving him of the right to be informed that homosexual conduct could result in deportation. Second, there was no scientific basis for the conclusion that homosexual conduct was necessarily indicative of psychopathological condition. Third, the legislative history did not support the conclusion that Congress intended to provide for the deportation of all aliens who engaged in homosexual acts. Fourth, Boutilier was never given a medical examination by the Public Health Service (PHS), which was required under the law. Fifth, Boutilier was being deported on the grounds that he had an excludable condition at time of entry, but much of the evidence derived from post-entry conduct. Sixth, Boutilier was deprived of the right to counsel during his INS interrogation. Freedman’s arguments were supported by amicus briefs from the HLRS and the ACLU/NYCLU. The HLRS collected statements by more than thirty scientific experts who challenged the notion that homosexuality was psychopathological. The ACLU/ NYCLU elaborated on the vagueness argument and extended the procedural points to stress that Boutilier was not told that he had the right to refuse to answer INS questions and was denied the right to present a competent defense at the INS hearing. The ACLU/NYCLU also argued that deportations should not be based on private, consensual, and nondangerous conduct.

Boutilier’s defenders were knowledgeable and experienced advocates who viewed themselves as supporters of gay rights and considered with great care how they could best represent Boutilier’s interests and the interests of the movements mobilized on his behalf. Nevertheless, their work was marked

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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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