Marc Stein

Boutilier and the U.S. Supreme Court's Sexual Revolution

In its controversial 2003 decision in Lawrence v. Texas, the U.S. Supreme Court struck down state sodomy laws as unconstitutional violations of the rights of consenting adults to have sex in private.¹ These laws, still in existence in thirteen states at the time of Lawrence, were infrequently enforced in the late twentieth and early twenty-first centuries but were often used to justify and legitimate sexual discrimination in employment, immigration, marriage, the military, and other arenas of "private" and "public" life. In this sense, they functioned like state laws against adultery, cohabitation, and fornication. Rarely utilized and widely flouted, these prohibitions remained on the books, available for use in struggles over sex and sexuality and in debates about the parameters of sexual citizenship.²	1
As was evident in Lawrence itself, such laws were not just vestiges of older systems of sexual regulation and sexual production. In March 2000, for example, the New York Times reported that Kimberly Henry and Richard Pitcher, an unmarried couple, had been charged with violating New Mexico's statute against "unlawful cohabitation." Pitcher's ex-wife, who had cohabited with Mr. Pitcher herself but became a born-again Christian after her fourth marriage, had filed a complaint because of her concerns about their children's exposure to a "nonfamily environment." The Times also mentioned that Arizona's state legislature had recently "rebuffed efforts ... to repeal its own eighty-year-old cohabitation law after a committee chairman described it as a bulwark against the 'decaying fabric of society.'" In April 2001 the Charlotte Observer reported on federal judge Carl Horn, who frequently invoked a North Carolina law banning fornication and adultery in cases involving cohabiting defendants. Arguing that he would not release a criminal defendant on bond "knowing that he or she will break the law," Horn told defendants "they won't be freed on bond until they agree to get married, move out of the house or have their partner leave." One lawyer claimed that this had happened to his clients "five to 10 times a year" and in about half of the cases the clients agreed to get married immediately. In one instance, the boyfriend of a female defendant raised his hand in court and told the judge that he had been planning to ask his girlfriend to marry him on her birthday. The judge then asked the defendant if she would marry the man and the two were wed several weeks later. According to the Observer, since 1993 "dozens of defendants" in this situation had married. In 2003, just before Lawrence was announced, the North Dakota Senate voted against repealing a state law that made it a crime for a man and a woman to live together "openly and notoriously." As one state senator declared, the law "stands as a reminder that there is right and there is wrong." Even after Lawrence, the New York Times reported that Joanne Webb, a sales representative of Passion Parties, a sex toy company that uses "Tupperware-style marketing," had been arrested for violating a Texas law that prohibits the sale of obscene devices, defined as materials "designed or marketed as useful primarily for the stimulation of human genital organs."³	2
In the aftermath of Lawrence, critics on the right warned that laws against adultery, bestiality, bigamy, cohabitation, fornication, incest, pedophilia, polygamy, and same-sex marriage were now vulnerable to challenge, while critics on the left attacked the ruling for not touching sexual discrimination in the public sphere and not protecting consensual sex outside the bounds of committed, monogamous relationships.⁴ At stake in these discussions were sharply conflicting views about the proper role of the state in society, an issue that divides both the right and the left in the United States.⁵ Yet despite these disagreements, the vast majority of commentators agreed with the view expressed in Justice Anthony Kennedy's majority opinion that the ruling in Lawrence was consistent with Supreme Court precedents established from 1965 to 1973.⁶	3
This essay argues that this view is based on a fundamental misunderstanding (or a dramatic re-appropriation) of what the Court did thirty to forty years ago in a set of cases concerning abortion, birth control, homosexuality, interracial marriage, and obscenity. In reality, Lawrence not only reversed the Court's 1986 ruling in Bowers, its decision upholding Georgia's sodomy law, but also revised the heteronormative vision of sexual freedom, equality, and citizenship that had guided the Court since the 1960s.⁷ The essay advances two main historical claims. First, in the period from 1965 to 1973 the Court developed a sexual doctrine that was not broadly libertarian or egalitarian but instead was based on the supremacy of adult, heterosexual, monogamous, marital, familial, domestic, private, and procreative forms of sexual expression. This heteronormative doctrine was applied in distinct ways in different areas of the law, but it shaped the Court's rulings across free speech, immigration, marriage, and privacy cases.⁸ Second, although liberal activists and advocates challenged some aspects of the status quo, they joined their conservative counterparts in contributing to the development of this doctrine as they worked within and against the constraints of the legal system. When the mass media, law journals, public officials, state and federal courts, and academic historians subsequently misrepresented the development of the new legal regime, they suggested incorrectly to various types of sexual criminals (including heterosexual adulterers, cohabitants, fornicators, and sodomites) that their rights to engage in illegal behaviors had been recognized by the Court. This mystification had the effect of binding such sexual criminals to the dominant heteronormative order, even though their rights had not been secured.⁹ Without understanding this history, the U.S. public in the post-Lawrence era is again in danger of misperceiving the nature of the rights that have been affirmed by the Supreme Court.	4
In a series of rulings announced in the midst of the sexual revolution, the U.S. Supreme Court redefined relationships between law and sexuality in the United States. In Griswold (1965), the Court ruled five to two (with two additional judgment concurrences) that a state law forbidding the use of contraceptives by married couples unconstitutionally intruded upon rights of marital privacy.¹⁰ In Fanny Hill (1966), six of nine justices restricted the scope of obscenity laws, with a plurality of three declaring that only texts that were "utterly without redeeming social value" could be restricted.¹¹ In Loving (1967), the Court ruled unanimously that laws prohibiting marriages between people of different races violated the U.S. Constitution.¹² In Eisenstadt (1972), the Court issued a four-to-one ruling (with two additional judgment concurrences) that struck down a state law banning the distribution of contraceptives to unmarried people.¹³ And in Roe (1973), seven of nine justices found that laws that prohibited abortions in the first six months of pregnancy unconstitutionally infringed upon rights of reproductive privacy.¹⁴ In apparent contrast, in Boutilier (1967) six of nine justices ruled that "homosexuals" could be excluded and deported from the country under the "psychopathic personality" provisions of the 1952 Immigration and Nationality Act.¹⁵	5
Historians of the post–World War II sexual revolution have produced groundbreaking studies exploring various dimensions of change and continuity but have not paid much attention to the Supreme Court. When mentioning the Court they usually highlight the liberalizing aspects of rulings in the 1960s and early 1970s and situate conservative decisions in the context of rightwing backlash in the late 1970s, 1980s, and 1990s. Discussing Griswold, most do not point out that the majority affirmed the constitutionality of laws against adultery, fornication, and homosexuality. They typically do not emphasize that on the very day that the Court announced its ruling in Fanny Hill it upheld obscenity convictions in cases dealing with fetishism, homosexuality, and sadomasochism. When exploring Loving, they generally do not mention the passage that based the ruling on the notion that marriage is necessary for reproduction. Nor do they acknowledge that Eisenstadt and Roe embraced reproductive rather than sexual privacy. The problem is not that these historians are wrong in emphasizing that the Court was moving in a liberal direction, but their work has obscured the conservative and limiting elements of the Court's rulings. In other words, they have made reformers appear like revolutionaries. None of the most notable books on the history of the sexual revolution even mentions Boutilier.¹⁶	6
Leading historians of the sexual revolution appear unfamiliar with the voluminous literature produced by legal scholars, who for decades have been offering critical interpretations of the Court's sex rulings.¹⁷ But discipinary divisions have also limited the work of legal scholars. In general, they have not undertaken original historical research on the full range of movements responsible for bringing sex cases to the Court and the popular reception of major sex rulings during the era of the sexual revolution. No legal scholar, for instance, has examined the Philadelphia-based Homosexual Law Reform Society (HLRS), which supported the litigation in Boutilier.¹⁸ Moreover, the conventions of legal scholarship ordinarily distinguish between (and keep separate) different types of sex cases. Many legal scholars would argue, for example, that what the Court does in the realm of privacy law might have no necessary relationship to what the Court does in the distinct realms of immigration, marriage, and speech law. The Court might protect the free speech and privacy rights of gay citizens, for instance, but deny the immigration rights of gay aliens.¹⁹ This helps explain why the legal literature on Boutilier has tended to remain separate from the legal literature on the other cases examined in this essay.²⁰ Many legal scholars would also argue that challenges to the constitutionality of statutes have to be distinguished from challenges to the application and enforcement of statutes. Insofar as they regard Griswold, Loving, Eisenstadt, and Roe as constitutional cases and Boutilier as a statutory case, they rarely discuss them together.²¹ Unfortunately, these tendencies have prevented many legal scholars from considering the underlying structure of heteronormative thought that influences outcomes across different realms of the law. Also, they have restricted the ability of legal scholars to read different types of cases against one another. Boutilier may not be a free speech or privacy case, for example, but, as I discuss below, Boutilier's speech acts about sex acts that took place in private led to his deportation. And the U.S. government's arguments against Boutilier suggest that one of its animating concerns was that gay privacy and secrecy might allow deceptively respectable homosexuals to gain entry to the country. In addition, understanding that the Court in Boutilier was willing to allow Congress to define homosexuality as a psychopathology casts light on how the Court in other cases could allow states to refuse to extend privacy protections to homosexual acts (since the Court does not recognize a right to be psychopathological in private). In other words, there is much to be learned about the character and limits of privacy and free speech doctrine by examining a case that does not apparently concern privacy or free speech. Finally, to omit Boutilier in discussions of the Court's sex rulings because Boutilier was an alien, not a citizen, makes us complicit in the production and policing of sexual, legal, and national borders.	7
Examining Boutilier in the context of these other cases has great potential for expanding our understanding of the scope and limits of the Court's and the country's sexual revolution. Among other things, it moves Boutilier out of its placement exclusively within gay rights jurisprudence and helps us to see how the law constructed normative heterosexuality and deviant homosexuality in dynamic and hierarchical relationship to one another. Such an analysis demonstrates that the Court in Boutilier did not contradict the arguments advanced in its liberalizing rulings but used relatively consistent logic. The Court majorities offered a vision of sexual citizenship that was not broadly libertarian and egalitarian; they did not, for example, endorse the principle that consenting adults may do as they please in private. What the Court did was to develop a narrowly framed doctrine that privileged and extended special rights to adult, heterosexual, monogamous, marital, familial, domestic, private, and procreative forms of sexual expression. Insofar as its doctrine was based on family, sexual, and reproductive discourses and formations that were historically and culturally associated with middle-class white male hegemony, the Court simultaneously helped institutionalize class, gender, and race privilege. Viewed from these perspectives, post-Roe decisions, often seen as reversing or limiting the earlier Court's liberalization, now appear consistent with the Court's prior rulings.²² In short, the broadly libertarian and egalitarian rights of sexual freedom that many U.S. Americans assume are enshrined in the U.S. Constitution were not recognized by the highest court in the land.²³ Instead, the Court helped institutionalize classed, gendered, and racialized principles of heteronormative supremacy.	8
The first section of this essay, aimed primarily at historians, builds on and extends the work of legal scholars to establish the basic parameters of the argument about the conservative nature of the Court's liberalizing rulings from 1965 to 1973. This discussion frames the critical analysis of Boutilier that follows. The second section introduces Boutilier and then pairs conservative and liberal arguments in the case, first in the circuit court's majority and minority opinions and then in the opposing briefs submitted to the Supreme Court. The third section follows Boutilier to the Supreme Court, this time pairing the Court's majority ruling and minority dissents. By tracing Boutilier as it moved through the courts and highlighting the ways in which conservatives and liberals joined together in promoting negative judgments about homosexuality, the second and third sections show that the Court's heteronormative decisions were authored not only by the justices and their clerks but also by legal advocates and social movement activists. While these sections emphasize the conservatism of Boutilier's defenders, the fourth and final section takes another look at the social movement strategies used in Boutilier, exploring the relationship between the sexually respectable activities of HLRS and the sexually transgressive work of HLRS's homophile supporters. In the end, the essay demonstrates that the Court, working at times with conservative concepts also endorsed by liberal advocates and activists, acted to regulate and set limits on what many perceived as a dangerous and disorderly sexual revolution.	9

Sexual Liberalization
Notwithstanding later interpretations by the mass media, law journals, public officials, state and federal courts, and academic historians, key passages in the rulings from Griswold to Roe make clear that the Court rejected a libertarian and egalitarian vision of sexual citizenship. Other passages may have suggested a broader vision, but the presence of conservative language, available for use in later contexts, meant that sexual freedom and equality had not been secured.	10
In the majority opinion in Griswold, for example, William O. Douglas asked with dramatic rhetorical flourish, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." He continued, "We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects."²⁴ In Douglas's formulation, marriage was a pre-constitutional institution whose privileged space was the bedroom. Protecting that space was the concept of privacy, which Douglas located at the boundaries of marriage, "surrounding" it. Outside of these boundaries were politics, commerce, and society. Inside was a relationship between two people that was sacred, intimate, and harmonious. Elsewhere Douglas used different spatial metaphors, but he repeatedly linked privacy with marriage, and specifically with a type of romanticized, idealized, and privatized marriage historically connected to the bourgeois, male-dominated, and white nuclear family.²⁵	11
Arthur Goldberg's concurring Griswold opinion, signed by Earl Warren and William Brennan, also endorsed "the right of privacy in marriage," declaring that "the fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization—surely does not show that the Government was meant to have the power to do so." Noting in contrast that "the discouraging of extra-marital relations" was a "legitimate subject of state concern," state "regulation of sexual promiscuity or misconduct" was "proper," and the constitutionality of laws prohibiting "adultery and fornication" was "beyond doubt," Goldberg emphasized that the problem with Connecticut's statute was that it interfered with marital rights. Goldberg also included an excerpt from John Harlan's dissent in Poe (1961), which had declared, "Adultery, homosexuality and the like are sexual intimacies which the State forbids ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected." While Douglas described marriage as pre-constitutional, Goldberg reached back to set traditional family relations in the context of the founding of "our" civilization. As Gail Bederman has pointed out, dominant discourses of "civilization" in the United States have been presumptively middle-class, male-dominated, and white, so Goldberg was invoking an imagined classed, gendered, and racialized past in defense of marriage. Goldberg also endorsed Harlan's position that the state's promotional relationship to marriage had not changed over time. This implied that marriage was a fragile institution, in need of state support, but it also provided means by which the state could protect marriage: through laws that discouraged extramarital sex, regulated sexual promiscuity and misconduct, prohibited adultery and fornication, and forbade homosexuality.²⁶	12
Harlan and Byron White also made clear that the relevant rights were marital rights. While Harlan filed a concurring opinion that reaffirmed his dissent in Poe, White concurred by criticizing the Connecticut law "as applied to married couples." Noting that "the statute is said to serve the State's policy against all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal," White wrote that he failed to see "how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships." White did not invoke the term "privacy," preferring to concentrate on the Fourteenth Amendment's "liberty" language, but he, too, argued that Connecticut's law violated the rights of married people. And he, too, wrote in the midst of an intensely classed, gendered, and racialized national discussion about promiscuous, illicit, premarital, and extramarital sex that was linked with Daniel Patrick Moynihan's controversial report on The Negro Family, which was submitted to President Lyndon Johnson in the same month in which the Court heard oral arguments in Griswold.²⁷	13
In short, the Court in Griswold was not invoking a broadly libertarian right to sexual privacy (that might be claimed by homosexuals, unmarried blacks, and various other groups) but a narrower right held by married couples only (and especially those that conformed to white, middle-class, family-limiting models). According to the Court's ruling, rights of privacy do not establish a literal sphere (i.e., the "home") in which consenting adults may do as they please. Instead, these rights create a quasi-literal and quasi-figurative sphere in which married couples have certain privileges. Later decisions built on this precedent, not to establish broadly libertarian rights to sexual privacy, but to extend the doctrine of privacy to cover other aspects of marriage and reproduction. For example, according to Warren's decision in Loving, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Identifying marriage as fundamental to "existence" and "survival," Warren's opinion offered a narrowly procreative and heterosexual conception of marriage and a narrowly marital and heterosexual conception of procreation. Invoking the historical rights of "free men," Warren rooted these conceptions in an imagined middle-class, male-dominated, and white past.²⁸	14
While Loving indicated that the right of privacy included rights to decide whom and whether to marry, Eisenstadt declared that it included rights to decide whether to reproduce. According to Brennan's majority opinion, "Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. ... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."²⁹ Left unclear was what else the right of privacy might mean, but by taking issue with the state's claim that its birth control statute was rationally related to its stated aims of discouraging "premarital" and "extramarital" sexual relations, Brennan's opinion implied that laws against premarital and extramarital sex remained constitutional. Moreover, the Court echoed the oral arguments presented on behalf of Baird, which included statistics on the high rates of nonmarital reproduction among blacks and referred to "the whole social problem of our nation with respect to the poor unwanted child and the welfare mother." In this respect, the Court's decision was influenced by class, gender, and race anxieties. Brennan's decision was signed by Douglas, Potter Stewart, and Thurgood Marshall. Warren Burger dissented. White and Harry Blackmun concurred in the result but not the majority opinion because, they pointed out, there was no evidence introduced about the marital status of the woman given contraception and therefore there was "no reason for reaching the novel constitutional question whether a State may restrict or forbid the distribution of contraceptives to the unmarried."³⁰ In other words, only four justices affirmed the privacy rights of unmarried people, and these four stipulated only that unmarried people have the right to decide whether to reproduce.	15
In Roe, Blackmun wrote for the majority that earlier Court rulings had recognized that "the right [of privacy] has some extension to activities relating to marriage ... , procreation ... , contraception ... , family relationships ... , and child rearing and education." Now the Court declared that this right was "broad enough" to encompass abortion, a social problem that was "complicate[d]" by "poverty" and "racial overtones." But according to Blackmun, "It is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind."³¹ Moreover, in basing its various rulings on a conception of privacy that restricted the scope of state involvement in marital, familial, domestic, and reproductive matters, the Court limited its vision of sexual freedom, equality, and citizenship. According to this conception, the state was free to, for example, restrict funding for birth control and abortion, act against public and commercial forms of sexual expression, and deny relief in cases of marital and familial rape and abuse.³²	16
Meanwhile, in the realm of obscenity law, the Court also made clear that it did not endorse a libertarian or egalitarian position. Here, in cases such as Fanny Hill, the Court developed a strict definition of obscenity but continued to place it outside the bounds of constitutional free speech protections. And when it developed and applied these definitions, the Court privileged certain forms of sexual expression over others. At times the Court protected representations of non-marital, non-monogamous, non-reproductive, and non-heterosexual forms of sexual expression, but at other times it judged these forms of expression using discriminatory standards. For example, the Court in One (1958) and Manual Enterprises (1962) established limited constitutional protection for respectable homophile periodicals and male physique magazines. In Fanny Hill, however, the Court's definition of obscenity referred to material that is "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters." This formulation implicitly established a hierarchy of sexual representations based on what was deemed acceptable to the "community." Then in Mishkin (1966), the Court upheld an obscenity conviction on the grounds that texts that dealt with "sado-masochism, fetishism, and homosexuality" (elsewhere described as "flagellation, fetishism, and lesbianism") must be judged in terms of whether "the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members" of a "clearly defined deviant sexual group" (and not according to the earlier standard of whether the texts "appeal to a prurient interest of the 'average person' in sex"). According to the logic of Fanny Hill and Mishkin (which were announced on the same day), materials that offended the majority and that aroused a group defined by the dominant as deviant could be declared obscene, whereas materials that offended so-called deviant groups but were acceptable to the majority were protected. The Court had great trouble achieving majorities for its obscenity rulings in this period, but when it did so in 1973 one of the criteria developed was "whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest."³³ By the law of averages, "deviant" representations received unequal protection.	17
The Court's narrow conception of sexual freedom, equality, and citizenship was the product of a complex dynamic in which the Court's prior rulings shaped the arguments that legal advocates made and, in turn, the arguments of legal advocates shaped the Court's decisions. In other words, historical agency rested not only with the Court but also with legal advocates, their clients, and the social movements that made litigation possible. To maximize their chances, advocates often tailored their arguments to fit prior rulings. If they succeeded, their arguments created new precedents. To more fully understand the historical processes involved in these cases, then, it is necessary to go beyond the texts of the rulings. Also important to explore are the strategies used in selecting cases, mobilizing resources, securing allies, developing arguments, generating publicity, and responding to decisions. These strategies were shaped not only by the content of prior rulings but also by various legal structures and conventions, including the incrementalist tradition whereby the Court claims that it avoids making rulings that are broader than necessary, the precedential tradition whereby the Court claims that it prefers to rely on the language of prior rulings rather than innovate with new formulations, and the advocacy tradition whereby lawyers are supposed to act in the best interests of their clients and not necessarily the larger causes that they represent.	18
Influenced by these traditions and constrained by the legal system, many of the advocates in these cases relied on strategies that minimized the potential challenges to the dominant order. For example, many birth control and abortion rights supporters invoked population control and eugenic arguments that reinforced U.S. class, race, and ethnic hierarchies (by discouraging reproduction in socially disempowered groups and encouraging reproduction in empowered ones).³⁴ Advocates in these cases also relied on privacy claims that were compatible with conservative anti-government and anti-statist politics. They often deferred to experts whose authority was rooted in hierchical social structures. And they frequently deployed strategies of respectability.³⁵Griswold's lawyers, for instance, put forward a case that concerned married couples (not single individuals) who were given birth control by a doctor (and thus someone who had high cultural status on matters concerning health and reproduction). Fanny Hill's advocates defended a work of recognized literary merit that featured a conclusion that condemned prostitution. The lawyers who pursued Loving worked on behalf of a white man and a black/Native American woman (a pairing historically considered less transgressive than other interracial pairings). Eisenstadt concerned a speaker (rather than a commercial distributor) who gave out contraceptives to a university (rather than a less well-educated) audience. And Roe's lawyers, though apparently aware of their client's lesbian past, prior pregnancies, and loss of custody of two children, demobilized discussion of this complicated personal history by using a pseudonym for Norma McCorvey. Sometimes the strategies were part of a long-term litigation plan; at other times they emerged in the crucible of legal circumstances; in some instances they are best thought of as strategic in effect rather than intention. But in each of these examples, liberal advocates secured victories by appealing to conservative values. When these conservative values were expressed in Court rulings, the results were important victories for marital and reproductive privacy, but at the cost of limits on sexual freedom, equality, and citizenship.	19

Policing Sexual Borders
Examining Boutilier, the Court's most significant gay rights ruling in the period between Griswold in 1965 and Roe in 1973, makes evident the limited nature of the Court's sexual doctrine and the participation of both conservatives and liberals in the development of the Court's views. Immigration law has long been understood as an important site for the regulation and production of class, ethnic, national, and race boundaries and hierarchies in the United States (for example, by favoring middle-class white Europeans and disfavoring others), but more recently scholars have examined how these dynamics intersected with the regulation and production of familial, gender, reproductive, and sexual boundaries and hierarchies (for example, by favoring heteronormative, white, middle-class family "reunification" and disfavoring other migration processes).³⁶ As a major ruling in the development of the Court's classed, gendered, and racialized doctrine of sexual freedom, equality, and citizenship, Boutilier merits careful consideration.	20
The long historical background to Boutilier begins with late nineteenth and early twentieth-century federal immigration laws, under which the United States denied entry to aliens who were "mentally defective," had been convicted of "crimes of moral turpitude," or were "persons of constitutional psychopathic inferiority." The 1952 Immigration and Nationality Act, often referred to as the McCarran-Walter Act, revised the third category to exclude aliens "afflicted with psychopathic personality." This change reflected the rise of psychological models that de-emphasized or rejected "constitutional" (biological, hereditarian, and/or congenital) explanations of sexual deviance. According to William Eskridge, Jr., 292 people were barred as "persons of constitutional psychopathic inferiority" from 1917 to 1924; 322 more were barred under this category from 1937 to 1952; and 47 were barred as "psychopathic personality" aliens from 1953 to 1956. Margot Canaday argues that early twentieth-century immigration authorities more frequently targeted "gender/sex deviants" by using provisions denying entry to those likely to become "public charges" and those who had committed "crimes of moral turpitude," but in the 1950s and 1960s authorities began to favor the "psychopathic personality" exclusion. Eithne Luibhéid emphasizes the classed, gendered, and racialized aspects of sexual inclusion and exclusion, and her work suggests that many sexual "deviants" were likely excluded in ways that would not be evident in official statistics. This was true both before and after 1965, when, in response to lower court rulings that found the phrase "psychopathic personality" to be unconstitutionally vague, new legislation excluded aliens with "sexual deviations." The new language was adopted after Boutilier was admitted to the United States, so the INS action to deport Boutilier was based officially on the claim that he had been excludable as a "psychopathic personality" at the time of his original entry.³⁷	21
According to the facts agreed upon by both sides, Clive Michael Boutilier, a Canadian citizen born in Nova Scotia, was first admitted to the United States as a permanent resident in 1955 at the age of twenty-one. In 1963, he applied for U.S. citizenship and revealed to a naturalization examiner that he had been arrested in New York City in 1959 on a sodomy charge, later dismissed on default of the seventeen-year-old complainant. In 1964, Immigration and Naturalization Service (INS) investigator James Sarsfield interrogated Boutilier. The resulting affidavit was submitted to the Public Health Service (PHS), which certified that Boutilier was "afflicted with a class A condition, namely, psychopathic personality, sexual deviate" at the time of original entry. On this basis, the INS began deportation proceedings. With the help of lawyers Robert Brown and Blanch Freedman, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), and the Homosexual Law Reform Society (HLRS), Boutilier appealed.³⁸	22
Boutilier's case was first heard by the Board of Immigration Appeals, which affirmed the INS decision in 1965, and then by three judges on the Second Circuit Court of Appeals in 1966. One of the three was Irving Kaufman, who in the 1950s (a decade marked by linked anticommunist Red and antigay Lavender Scares) had presided over the trial of alleged communist spies Julius and Ethel Rosenberg and had sentenced the two to death.³⁹ Arguing Boutilier's case was Blanch Freedman, who also had connections to the Rosenbergs. The daughter of immigrants, a committed socialist and civil libertarian, and the wife of a man with similar politics, Freedman had been the executive secretary of the Women's Trade Union League in the 1940s and was affiliated with the American Committee for the Protection of the Foreign Born (ACPFB) and the National Conference to Defend the Bill of Rights. In the 1940s she had received significant public attention for defending thirty-seven men of South Asian descent who claimed British nationality but were threatened with deportation to Pakistan; in the 1950s she had represented aliens accused of being communists, winning one such case before the Supreme Court; and later in the 1950s she had acted as W. E. B. Du Bois's lawyer when the State Department refused to renew his passport unless he signed an anticommunist statement. Freedman was also the law partner of Gloria Agrin, who had assisted in the Rosenberg defense. According to one of the Rosenberg sons, Freedman took over the work of their law practice so that Agrin could work full-time on the successful effort to grant custody of the two Rosenberg children first to their grandmother and then to the couple that their parents had designated. More than a decade later, Freedman was arguing for Boutilier in Kaufman's courtroom.⁴⁰	23
As the case worked its way through the courts, four questions emerged as central: (1) did Congress intend to exclude all homosexual aliens? (2) did Congress intend to defer to medical authority in the procedures established? (3) was the phrase "psychopathic personality" unconstitutionally vague? and (4) was homosexuality defined by conduct or character? The first question concerned one aspect of legislative intent. While Boutilier's opponents argued that Congress intended to exclude all homosexuals, his supporters insisted that Congress, in using the term "afflicted " and requiring PHS examinations, was not so categorical.⁴¹	24
The second question, which concerned a different dimension of legislative intent, focused on how Congress wanted psychiatric terms to be used in legal contexts.⁴² Boutilier's opponents argued that legal conceptions were most important and that, according to these, all homosexuals were psychopathic. His defenders argued that by requiring medical examinations, Congress stipulated that legal decisions should defer to scientific authority. Because Boutilier had not been examined by the PHS, they argued, he had been denied his rights. Moreover, two private psychiatrists, Edward Falsey and Montague Ullman, had examined Boutilier and concluded that he was not psychopathic. Boutilier's supporters also submitted statements by an extraordinary collection of scientific experts, including Sigmund Freud, Alfred Kinsey, and Margaret Mead, who claimed that homosexuality was not, per se, a sign of psychopathology. Even some of the PHS's own doctors concurred with this position. Essentially, Boutilier's defenders were arguing that since the overwhelming scientific and legal consensus on homosexuality had broken down between the early 1950s and the late 1960s, what ought to be determinative was not the automatic exclusion but the automatic deference to science.	25
The third conflict focused on the principle that laws too vague to be understood by ordinary people are unconstitutional because they violate due process rights. Boutilier's opponents argued that the legal meaning of "psychopathic personality" was clear and that the question of whether Boutilier had fair warning that his actions in the United States might lead to trouble was irrelevant since he was being excluded not because of post-entry behavior but because of pre-entry character. Boutilier's defenders argued that even if Congress meant to exclude homosexuals, accomplishing this through vague language deprived Boutilier of the opportunity to modify his behaviors.	26
The fourth conflict centered on definitions of same-sex sexualities. While the INS and its supporters argued that homosexuality should be thought of as a condition or characteristic, Boutilier's defenders argued that homosexuality was best understood as a matter of conduct or behavior. As a condition or characteristic, homosexuality might be viewed as a defining feature of individual identity, an innate and unchanging essence of the self. As a behavior, homosexuality could be understood as independent of sexual identity, as a course of action that anyone might choose. (Interestingly, these are the opposite positions taken in most gay rights cases today, when gay rights supporters usually argue that homosexuality is an inborn and fixed character trait and gay rights opponents are more likely to see homosexuality as a behavioral lifestyle choice.) In this conflict, Boutilier's sexual history was key.	27
INS investigator James Sarsfield's examination of Boutilier was critical in this regard. Sarsfield began by stating, "I desire to question you under oath regarding your homosexual activities." Asked to define "homosexual activity or homosexual acts," Boutilier replied, "Acts of two people of the same sex." When Sarsfield inquired about the acts that led to his 1959 arrest, Boutilier responded, "I inserted my penis in his rectum and had an orgasm. ... [L]ater I put my penis in his mouth and had a blowjob." Next Sarsfield asked about Boutilier's years in Canada. Boutilier reported that he first had sex with a man when he was approximately fourteen years of age and living in Nova Scotia. The man, he said, was about forty years old: "We had planned a hunting trip and I stayed at his home that night, his wife was away, and we shared the same bed. He tried to put his penis in my rectum. He didn't succeed but a flow of sperm came from his penis on my clothing." Boutilier stated that his next "homosexual" act took place two years later, at a public park in Nova Scotia, when a man in his early thirties gave him a "blowjob." He then reported that between the ages of sixteen and twenty-one, while still in Canada, he had "homosexual" sex ("all blowjobs") three to four times a year and sex with women three or four times in total. Asked about his activities after moving to the United States, Boutilier claimed that he had sex with men three to four times a year and beginning in 1959 shared a Brooklyn apartment with Eugene O'Rourke, with whom he had sex two or three times a year. The final questions dealt with the draft. Discussing why he had been classified 4F in 1957, Boutilier declared, "I'm homosexual." Sarsfield then asked, "Did they just accept your statement that you're a homosexual?" Boutilier replied, "After filling out the forms and asking the questions, I was sent to see a psychiatrist and as a result I'm classified 4F." Asked if he had anything further to add, Boutilier declared, "I plan to seek medical help and I guess that's about it. Due to the finances I couldn't get around to get this medical help before this."⁴³ This exchange is fascinating in many respects, especially if Boutilier's answers are interpreted as strategic responses elicited in the constrained circumstances of an interrogation, but of particular relevance here is the fact that Sarsfield's questions focused mostly on conduct, not character.	28
In the Second Circuit Court, the majority and minority opinions made different uses of this evidence, but they concurred in judging homosexuality negatively and neither brought homosexuality within the purview of constitutionally protected rights. In a footnote to his majority (two-to-one) decision, Judge Kaufman responded to his colleague's dissent: "Although [Judge Leonard Moore's] plea for 'clemency' is quite moving, it is illustrative of the ease with which one can succumb in a case such as this to the temptation of permitting the emotions to overwhelm reason and enacted law. Congress has made its judgment, for better or worse, respecting the exclusion of homosexuals which we are not at liberty to alter." Kaufman's next sentence responded even more directly to the dissent, which cited sexologist Alfred Kinsey's estimate that "'at least 37 per cent' of the American male population has at least one homosexual experience" and which argued that labeling "excludable" such a large group of aliens would be "tantamount to saying that Sappho, Leonardo da Vinci, Michelangelo, Andre Gide, and perhaps even Shakespeare, were they to come to life again, would be deemed unfit to visit our shores." To this, Kaufman replied, "The dissent's parade of distinguished historical personages allegedly possessing homosexual attributes does not detract one iota" from the conclusion that Congress meant to exclude homosexuals and "there is little doubt that some of these eminent gentlemen would be excludable." Kaufman's footnote concluded: "Thus, while the house of horrors erected by our dissenting brother stimulates the imagination and arouses our sympathy, it is largely irrelevant. Congress ... did not authorize immigration officials to conduct a detailed psychiatric examination into the nature, frequency and variety of a particular homosexual's acts. ... And, neither citations to the Sonnets of Michelangelo and Campanella, to the New York Times, nor even to Annie Get Your Gun will aid us in our statutory interpretation or change this simple fact of life." Kaufman's campy choice of words reproduced common tropes of antigay prejudice: homosexuality had the power to overwhelm; it was profoundly emotional and threatened reason; it caused erections that were arousing but horrifying; it challenged the facts of life. Homosexuality could even turn Sappho, the lesbian poet of ancient Greece, into a gentleman, and lead Annie to get a gun.⁴⁴	29
As for conduct and character, Kaufman argued it both ways. In the very first words of his opinion, he declared, "Although a relatively young segment of contemporary society prides itself on its readiness to cast off conventional and tested disciplines and to experiment with non-conformance and the unorthodox merely to set out its contempt for traditional values, certain areas of conduct continue to be as controversial in modern and beau monde circles as they were in bygone and more staid eras [emphasis mine]." This formulation linked homosexuality with the young, the unconventional, the undisciplined, the experimental, the nonconforming, the unorthodox, the contemptuous, and the nontraditional, while suggesting that even in these circles homosexuality was controversial. Significantly, Kaufman referred to homosexuality here as a matter of conduct, though only pages later he based his decision on the argument that "The [1952 Immigration Act] provision was never designed to regulate conduct; its function was to exclude aliens possessing certain characteristics [emphases in original]." On one level Kaufman was contradicting himself, but on another he was using evidence of conduct as proof of character.⁴⁵	30
Judge Moore emphasized in his dissent that homosexuality was best understood in behavioral terms, but he, too, contributed to negative assessments of homosexuality, even while arguing in favor of Boutilier. Moore invoked the ubiquity of homosexual behaviors to explain why he could not "impute to Congress an intention ... to cover anyone who had ever had a homosexual experience." With respect to Boutilier, Moore wrote that "the most adverse conclusion" was that he had "engaged in sexual activity on a quite infrequent basis with both men and women" before coming to the United States. In contrast, "The term 'sexual deviate' suggests someone with a long-lasting and perhaps compulsive orientation towards homosexual or otherwise 'abnormal' behavior." In the same section, Moore quoted one source that defined psychopathic personalities with reference to "lifelong patterns" and another that referred to "a life-long ... tendency." Moore thus disagreed with Kaufman about whether Congress intended to exclude all homosexuals, particularly if the behavior was infrequent or a passing phase, but he expressed more ambivalence about long-term homosexuals.⁴⁶	31
While Moore emphasized that homosexuality was best understood as a behavior, he used behavioral evidence to make positive judgments about Boutilier's character. Here, too, he endorsed negative judgments about homosexuality in the course of trying to save Boutilier. According to Moore, Boutilier's actions never "put him in repeated conflict with the authorities," his sexual activities were "consensual acts between adults," and they took place "almost always in private." He contrasted Boutilier's situation with another case that involved "blatant exhibitionist solicitation in public." Moreover, had Boutilier known that "sexual deviation" would be "automatic grounds for exclusion," he could have "modified his behavior." The evidence for this was that Boutilier was "young, intelligent, and responsible" and that he had had sex with women. Moore also pointed out that Boutilier had "worked hard and gainfully" since coming to the United States, was "respected in his work," and had several close relatives (including his mother, stepfather, and three siblings) living in the States. In defending Boutilier, Moore was arguing against homosexuals who were less private; less young, intelligent, and responsible; less hard-working; and less familial.⁴⁷	32
Shortly after losing before the Second Circuit Court, Boutilier's lawyers appealed to the Supreme Court. Signing the government's briefs against Boutilier at this stage was civil rights hero Thurgood Marshall, who had been appointed solicitor general by Lyndon Johnson. Joining the Court in 1967, shortly after Loving and Boutilier were decided, Marshall later voted with the liberal majorities in Eisenstadt, Roe, and a variety of obscenity cases. But before being in a position to do so, and in a period when Johnson and his advisors were testing Marshall to decide whether to appoint him to the Court, Marshall argued the case against Boutilier.⁴⁸ Once again, Boutilier's supporters and opponents squared off against one another but joined together in promoting negative ideas about homosexuality. According to the government's brief, homosexuality was a "condition," but one that could be assessed on the basis of behaviors. As the brief noted, "The statutory ground for expulsion was not the alien's conduct after entry, but his condition at the time of entry." And the evidence establishing Boutilier's homosexuality was not "meagre and fragmentary," which was the claim of Boutilier's lawyer, but "overwhelming." Boutilier "had had occasional heterosexual experiences," but they "hardly detract from his clearly—and concededly—dominant homosexual orientation." For Boutilier's opponents, conduct proved condition.	33
The government took the view that even respectable homosexuals should be excluded. As Marshall's brief observed, "The vagueness doctrine is not a device to enable an individual afflicted with a condition that if discovered would have barred his admission to this country so to conduct himself as to avoid making his condition known." In fact, while Boutilier's supporters highlighted his public respectability, the government emphasized concerns about homosexuality's potentially private (and thus non-detectable) nature. Marshall's brief quoted a statement by the PHS on this issue: In some instances considerable difficulty may be encountered in substantiating a diagnosis of homosexuality or sexual perversion. In other instances where the action and behavior of the person is more obvious, as might be noted in the manner of dress (so-called transvestism or fetishism), the condition may be more easily substantiated. Ordinarily, a history of homosexuality must be obtained from the individual, which he may successfully cover up. Some psychological tests may be helpful in uncovering homosexuality of which the individual, himself, may be unaware. ... The detection of persons with more obvious sexual perversion is relatively simple. Considerably more difficulty may be encountered in uncovering the homosexual person. In other words, privacy for homosexuality was dangerous insofar as it might allow deceptively respectable homosexuals to gain entry to the country. The reasoning here helps clarify the logic of Griswold: privacy was a positive public good when claimed by married heterosexuals but a negative secret evil when used by homosexual aliens. Such aliens were not just excluded from the privileges of privacy but were subject to the demands of compulsory publicity.	34
Boutilier's lawyer Blanch Freedman disagreed with the government on many points, but in trying to reject the law's application to Boutilier she contributed to the negative consensus on homosexuality. Drawing on the work of Kinsey and Clarence Tripp, she observed that "homosexuality is a kind of behavior, evidently very wide-spread, and not the manifestation of a particular kind of person." Objecting to the notion that "there is some kind of recognizable human being that is a 'homosexual'—like one might recognize a 'red-head,'" Freedman insisted that there was no evidence about Boutilier's "psychological or physical condition" but only proof of his "behavior, that is, of a number of homosexual experiences."	35
While these claims were not particularly negative, Freedman proceeded to endorse the distinction between respectable and non-respectable homosexuals. Because the statutory language was so vague, she argued, Boutilier was deprived of "the opportunity to refrain from homosexual practices after his entry," which "he was well able to do." She continued, "For there is nothing in the record to establish or even suggest that those experiences were compulsive in character and not merely a matter of choice." Ultimately, Freedman downplayed evidence of Boutilier's gay identity, this despite the fact that he had declared himself "a homosexual." In oral arguments, she stated, "Petitioner has concealed nothing because he has no condition." In her briefs, she wrote, "Insofar as his sexual behavior prior to entry is concerned, petitioner testified that he had been heterosexual also." She concluded that her opponents had provided no sense of whether "there would have been any difference ... had petitioner experienced but two homosexual acts per year prior to entry, or only one such act, or even none." Did the restriction cover those who engaged in homosexual practices on a "rare or infrequent" basis, Freedman asked, and those who engaged in it "continuously and flagrantly"? To support this argument, Freedman cited the report submitted by Dr. Ullman: The patient has sexual interest in girls and has had intercourse with them. ... What emerged out of the interview was not a picture of a psychopath but that of a dependent, immature young man with a conscience, an awareness of the feelings of others and a sense of personal honesty. His sexual structure still appears fluid and immature so that he moves from homosexual to heterosexual interests as well as abstinence with almost equal facility. ... My own feeling is that his own need to fit in and be accepted is so great that it far surpasses his need for sex in any form. Freedman was arguing this point in part to prove that the INS had relied on post-entry behavior rather than pre-entry character. But she was using a psychiatric evaluation that reproduced the trope of homosexuality as a form of arrested development. The ACLU/NYCLU brief added, "It seems incredible to suggest ... that, if Boutilier had lived a life of impeccable conventional morality between 1955 and 1964, the post-entry years, the government would have initiated its deportation proceedings." In making these arguments, Boutilier's lawyers ran the risk of winning rights only for mature homosexuals who lived lives of "impeccable conventional morality."	36
These arguments were elements of a strategy of respectability used by Boutilier's supporters. One part of this strategy involved deferring to scientific authority. For instance, the HLRS brief, written by Philadelphia lawyer Gilbert Cantor, contained the views of twenty-eight "experts" who rejected the view that homosexuality was by definition a psychopathology.⁴⁹ Challenging "the abuse of psychiatric terminology for the purpose of social control" and warning of the dangers of the "therapeutic state," the Society nevertheless placed its hopes in the "triumph of scientific knowledge over 'folk knowledge.'" Boutilier's supporters were willing to put the fate of homosexual immigrants in the hands of medical doctors.	37
Along similarly respectable lines, Boutilier's advocates constructed a sympathetic biographical portrait of Boutilier, who was presented as a good farm boy; devoted to work, family, and church; and honest to a fault. According to this portrait, Boutilier had grown up as the second oldest child and the oldest son in an economically struggling farm family with six children; he had dropped out of school at age thirteen to help support his family; and he had been victimized first by his parents' contentious marriage and divorce and then by his first male sexual partner. In the United States he had been "self-supporting," working "steadily" as a building maintenance man and "responsibly" as an attendant/companion of a man who was mentally ill. When discussing his sexual activities, Boutilier's supporters pointed out that he had had sex with both women and men, he had not sold or purchased sex, he had almost always had sex in private, he had engaged in sex quite infrequently (even when living with another "homosexual" man), he had told the truth when questioned, and he was interested in medical help. They emphasized that their client was from Canada (a neighboring country closely allied with and demographically similar to the United States); he had come to the United States with his family; his mother and stepfather were U.S. citizens (in a context where immediate family members generally received preferential treatment under U.S. immigration law); his siblings were married and had children; his brothers were serving in the U.S. military; he lived in the same building (and later the same apartment) as his parents; and his social activities included going to church and bowling. (They did not mention that he had tested positive for syphilis in 1961.)⁵⁰ In the context of this strategy, it may have helped that Sarsfield's interrogation suggested that Boutilier played the historically "masculine" (insertive) roles in his sexual activities. It also may have helped that Boutilier was Anglophone and Christian and that his lawyer was a woman, whose presence effectively heterosocialized and domesticated her male client. In these and other ways, Boutilier's supporters conveyed a sense that he was a desirable immigrant from the standpoint of dominant U.S. values. In using this strategy, they reinforced those values while trying to save Boutilier.	38

Order in the Court
The members of the Supreme Court who considered the arguments in Boutilier were not encountering same-sex sexualities for the first time. Two justices, William O. Douglas and Hugo Black, had served on the Court in the 1940s with Frank Murphy, who was rumored to be gay. Journalists Joyce Murdoch and Deb Price have identified twenty-two gay and lesbian Supreme Court clerks, the earliest of whom served in the 1950s. According to Murdoch and Price, Justice Tom Clark had a gay nephew, whom he knew to be gay and whom he treated "like a beloved son." All of the justices knew about the 1964 arrest and resignation of President Johnson's long-time aide Walter Jenkins, a married man with six children who was twice caught having sex with a man in a YMCA restroom. According to Douglas's widow, Douglas had "many friends" who were gay and viewed homosexuality as part of the "tapestry of life." Douglas wrote in his autobiography about a college friend who "expressed his sexual interest" in the future justice "in an unmistakable way," about knowing a senator and an undersecretary of state who were "reputed" to be gay, and about the use of Lafayette Park in Washington, D.C., as a "meeting place for homosexuals." Moreover, Douglas had a "decades-long friendship" with an openly lesbian couple who were his neighbors in Washington state. Not all of the justices were as friendly. According to Black's son, Black told him that when he worked as a police court judge in Alabama, he handled a case in which a man charged with assault claimed that his victim had "made advances." After the victim failed to deny the accusation, Black "threw out the charges and found the pervert guilty of disorderly conduct and gave him the maximum sentence." "That kind of thing will destroy a society, Son," Black reportedly said.⁵¹	39
Nor were the justices encountering Supreme Court cases concerning same-sex sexualities for the first time. In One (1958) and Manual Enterprises (1962), the Court ruled against the censorship of magazines with gay content. In Rosenberg (1963), the Court vacated a lower court's ruling against a gay alien on the technical point that George Fleuti's return from a one-day trip to Mexico in 1956 did not constitute re-entry and that Fleuti's entry date therefore should be regarded as 1952 (before the relevant legislation took effect). In Mishkin (1966), the Court affirmed an obscenity conviction in a case involving representations of "homosexuality" and "lesbianism." In at least fifteen other pre-Boutilier gay cases concerning immigration, the military, employment, obscenity, sodomy, and disorderly conduct, the Court reviewed lower court rulings and either declined to hear appeals or issued dismissals. And in 1966, the Court confronted not only Boutilier's appeal, but also the INS's appeal of Lavoie, a gay immigration ruling by the Ninth Circuit Court that conflicted with the Second Circuit's ruling in Boutilier. In October 1966 the Court voted to delay a decision on whether to hear Boutilier until the appeal in Lavoie reached the Court. When it did, the Court decided to focus on Boutilier.⁵²	40
Boutilier reached the Supreme Court during a period in which the Court, despite the respectable public image that it cultivated, had become significantly sexualized in a variety of ways. From 1965 to 1973, the justices heard a variety of cases concerning abortion, birth control, cohabitation, interracial marriage, nonmarital reproduction, obscenity, rape, and same-sex sexualities. In these years Douglas's four marriages (the latter three to women much younger than he), three divorces (the Court's first three), and multiple extramarital affairs were the subject of significant public discussion (and calls for impeachment). Court staff were kept busy ensuring that Douglas's wives did not encounter his lovers on visits to the Court building and that the Court was not sullied by allegations concerning Douglas's unwanted sexual advances to associates, secretaries, and visitors. Before, during, and after this period the Court provided noteworthy opportunities for workplace romance: Black married his secretary in the 1950s, William Brennan did so in the 1980s, and an interracial relationship between two Court employees (a black male laborer and a white female clerk) was a source of controversy beginning in 1972. According to a long-time member of Douglas's staff, "Other Justices ... had mistresses ... , but they would employ them as secretaries or keep them away from the Court building." Meanwhile, many of the justices and their clerks regularly gathered in the Court building's basement to review movies and other materials that were at issue in obscenity cases. According to one biography, Thurgood Marshall, after he joined the Court, "always took a front-row seat and wisecracked loudly" and "if the action on-screen got especially heated, he would comment on the performance and even ask for a copy of the film so he could have it to show his kids when they reached college age." Murdoch and Price write that John Harlan, "nearly blind with cataracts," not only held "graphic pictures two inches from his face—a fact that continually amused him," but purposely sat beside "prudish colleagues" during the movie showings and "insist[ed] on hearing a blow-by-blow description." "Oh, extraordinary," he would exclaim. In the midst of these rulings, Playboy founder Hugh Hefner apparently sent Brennan at least one pornographic card "with love and kisses." Abe Fortas joked in a 1966 memo to Brennan that he was "glad to join you and Fanny Hill." In 1967, Fortas wrote humorous verses with references to miscegenation, bigamy, and cunnilingus that he sent to Douglas while the Court was considering Loving. Douglas once joked that the reason the Court seemed to be moving in a liberal direction in obscenity cases was that the Court's standard was "whether the material arouses a prurient response in the beholder." As he explained, "The older we get, the freer the speech." In 1972, assistant clerk W. V. Gullickson wrote embarrassed memos to the Court's other clerks and the Chief Justice, expressing concerns about missing "exhibits in obscenity cases," including five magazines, one roll of film, a deck of cards, and a book. And in February 1973, National Lampoon featured a centerfold cartoon depicting the justices engaging in a variety of transgressive cross-sex, same-sex, interracial, cross-species, sadomasochistic, exhibitionist, cross-dressed, oral, and pedophilic sexual activities.⁵³	41
According to the biographical literature on the justices, the Court's members in the 1965–67 terms approached their cases having been fully immersed in the institutions, practices, discourses, problems, and anxieties of mid-century heterosexuality, marriage, and procreation. Collectively, the eleven justices who served in these years were married seventeen times and had (according to available records) twenty-six biological children. The justices' parents had had fifty-five children (according to available records), suggesting that the justices limited their reproductive sexual activities (probably through the use of contraception or other birth control strategies) to a far greater extent than their parents had. The justices were the children of unhappy, contentious, and separated marriages (Douglas, Harlan, and Warren); their parents conceived children before marriage (Marshall); they enjoyed sexual adventures in their youths (Black and Marshall); their hopes of marrying across religious lines were blocked by disapproving parents (Black); they married in spite of parental objections (Black); they kept their marriages secret from their parents (Brennan) and universities (Douglas) and their courtships secret from their children (Black); they married across religious and racial lines (Fortas and Marshall); they married widows and divorcees (Douglas, Fortas, Harlan, and Warren); they had extramarital relationships (Douglas, Fortas, and Marshall); they conceived children premaritally (Marshall); they took testosterone shots to increase their virility (Black); they and their wives had difficulty having children (White); their wives had miscarriages and hysterectomies (Black and Marshall); their wives volunteered for Planned Parenthood (Stewart); their wives had drinking problems (Stewart); their wives counseled a future first lady about her husband's sexual affairs (Black); they beat their wives (Douglas); their wives killed themselves (Black); and they had their personal papers destroyed to protect their privacy (Black and White).⁵⁴ These experiences did not necessarily determine, in direct and linear ways, how the justices voted in particular cases. Eva Rubin has argued that "the most likely source of the image of family life depicted in the [Court's] opinions," an image that she describes as "idealized" and "mythological," was "the personal family experience of the Justices themselves." But if the justices romanticized the familial "haven in the heartless world," they may have done so precisely because their own havens sometimes proved rather heartless. In turn, the Court reproduced idealized familial images not only in its opinions, but also in its courtroom, where seats with brass nameplates were reserved for "Mrs. Warren" and each of the justices' wives. As the middle-class heteronormative American family and the families of the justices experienced new pressures and possibilities in the 1960s and 1970s, the Court granted them new protections and privileges while affirming the discriminatory policing of sexual borders.⁵⁵	42
In the end, the Court affirmed in Boutilier what it had earlier indicated in Griswold, Fanny Hill, and Loving and what it would later confirm in Eisenstadt and Roe: that its vision of sexual freedom, equality, and citizenship privileged marriage, reproduction, and heterosexuality. Demonstrating, however, that its decision was not inevitable, the Court nearly decided the other way. According to notes in the justices' papers, when the Court met for its preliminary vote, Earl Warren joined three other justices (Brennan, Douglas, and Fortas) in siding with Boutilier. Black voted against Boutilier but indicated that he was willing to change sides if the majority voted that way. When it became clear that Boutilier had fallen one vote short, Black affirmed his original choice. Later, Warren, who disliked five to four decisions because he thought they weakened the authority of the Court's rulings, changed his vote, resulting in a six to three ruling against Boutilier. Boutilier lost the two justices who had voted conservative in Griswold and liberal in Fanny Hill (Black and Stewart), the three justices who had voted liberal in Griswold and conservative in Fanny Hill (Harlan, White, and Clark), and one justice, Warren, who had voted liberal in both Griswold and Fanny Hill.⁵⁶	43
As had been the case in the conflicting rulings of Kaufman and Moore in the Second Circuit Court and the competing briefs of Marshall and Freedman, the Supreme Court's majority and minority opinions disagreed on many points, but joined together in promoting negative judgments about homosexuality. Invoking the race-based precedent of the Court's ruling in favor of the Chinese Exclusion Act (and illustrating again the ways in which race functioned as a "metalanguage" in legal discourse about sex), Clark wrote for the majority, "It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." "Here," he continued, "Congress commanded that homosexuals not be allowed to enter." Establishing an equivalence between Chinese and homosexual aliens by suggesting that both were defined by "characteristics" that could be "forbidden" by Congress, Clark indicated that homosexuals could be thought of as an unwanted race. According to Clark, "Congress used the phrase 'psychopathic personality' not in the clinical sense, but to effectuate its purpose to exclude from entry all homosexuals and other sex perverts." Noting that "the Government clearly established that petitioner was a homosexual at entry," Boutilier "admitted" this fact, and "the existence of this condition over a continuous and uninterrupted period prior to and at the time" of entry was proven, Clark concluded, "When petitioner first presented himself at our border for entrance, he was already afflicted with homosexuality. The pattern was cut, and under it he was not admissible."⁵⁷	44
Boutilier won the votes of the other three justices. Brennan dissented for the reasons stated by Moore in the lower court ruling. Douglas, in an opinion joined by Abe Fortas, began by declaring, "The term 'psychopathic personality' is a treacherous one like 'communist' or in an earlier day 'Bolshevik.' A label of this kind when freely used may mean only an unpopular person. It is much too vague." Invoking the specter of McCarthyism and taking a stab at Kaufman for his role in the trial of the Rosenbergs, Douglas referenced the very era, the early 1950s, which had been responsible for the immigration statute. Observing that "it is common knowledge that in this century homosexuals have risen high in our own public service—both in Congress and in the Executive Branch—and have served with distinction," Douglas argued that it was "not credible" that Congress meant to exclude "anyone who was a sexual deviate, no matter how blameless his social conduct had been nor how creative his work nor how valuable his contribution to society." "The informed judgement of experts is needed to make the required finding," Douglas concluded. "We cruelly mutilate the Act when we hold otherwise. For we make the word of the bureaucrat supreme, when it was the expertise of the doctors and psychiatrists on which Congress wanted the administrative action to be dependent."⁵⁸	45
Although Douglas argued against excluding all homosexuals, his opinion expressed profoundly negative views about homosexuality. He approvingly cited a 1949 text that linked homosexuality with immaturity and narcissism and referenced a 1944 text in declaring that "the homosexual is one, who by some freak, is the product of an arrested development."⁵⁹ Turning to Boutilier, Douglas pointed out that "at least half of the questioning of this petitioner related to his postentry conduct" and should have been disregarded. Citing the statements of Boutilier's psychiatrists, Douglas also argued against the notion that he was "afflicted": "'Afflicted'" means possessed or dominated by. ... 'Afflicted' means a way of life, an accustomed pattern of conduct. Whatever disagreement there is as to the meaning of 'psychopathic personality,' it has generally been understood to refer to a consistent, lifelong pattern of behavior conflicting with social norms without accompanying guilt. ... Nothing of that character was shown to exist at the time of entry." Here the dangers of the arguments advanced on behalf of Boutilier become evident. For, in essence, Douglas was suggesting that as long as homosexuality did not become a lifelong and consistent way of life, as long as it did not conflict with social norms, and as long as there was guilt, homosexuality should not be grounds for exclusion.⁶⁰	46
Douglas's opinion is also noteworthy for the way it invoked the "common knowledge" that homosexuals had served in high positions in the legislative and executive branches. Had Douglas forgotten that there was a third branch of government headed by the Supreme Court itself? Or was there just less common knowledge about homosexuals in the judicial branch?⁶¹ If Douglas lacked such knowledge, others apparently did not.	47
Abe Fortas was the newest Supreme Court justice when Boutilier was decided. The son of immigrants, Fortas was married to a divorcee who did not wish to have children. Fortas biographies claim that the justice participated in various "extramarital activities," had at least two serious affairs with women during his marriage, and "did not regard anyone, not even his wife's friends, as off limits." Fortas, closely aligned with President Johnson, was also the first person whom Walter Jenkins called when news of his second arrest became public; Fortas quickly sent Jenkins to a hospital and pleaded, unsuccessfully, with journalists to delay their stories.⁶²	48
Two months after Douglas, Brennan, and Fortas dissented in Boutilier, one of J. Edgar Hoover's lieutenants at the FBI visited Fortas to inform him about an "allegation" that implicated the justice in "homosexual activities." According to a memorandum that was shown to Fortas, an "active and aggressive homosexual" who was a "reliable" informant stated that he had "balled" with Fortas several times before Fortas joined the Court. The informant defined "to ball" as "to have a homosexual relationship." The FBI assured Fortas that it was taking "no further action" but wanted to inform him for his own "protection and knowledge." Fortas responded that the charges were "ridiculous" and "false" and that "while he might be properly accused of normal sexual relations while a young man and during his married life, he most certainly had never committed homosexual acts."⁶³ Two years later, in the wake of ethical questions about his finances and political questions about his rulings in rape and obscenity cases, Fortas resigned from the Court, not long after Johnson had nominated him to replace Warren as Chief Justice.	49

Strategies of Reform
Moore, Freedman, and the Supreme Court dissenters disagreed with Kaufman, Marshall, and the Supreme Court majority about the desirable outcome in Boutilier, but the positions they took in defending Boutilier reinforced the notion that homosexuality was undesirable. This much is clear from examining the texts of Boutilier. But to end the analysis here, at a point that suggests a thoroughgoing accommodationism on the part of Boutilier's advocates, would miss an additional dimension. Too often legal scholars explore the texts of cases without examining the movements responsible for bringing the cases through the courts. Legal scholars have paid more attention to Boutilier than have historians, but they have had virtually nothing to say about those responsible for funding, litigating, and supporting Boutilier.⁶⁴ The Homosexual Law Reform Society (HLRS) and the ACLU/NYCLU were the principal groups that came to Boutilier's assistance and for the purposes of his case they adopted strategies of respectability. But interpreting these strategies cannot rely exclusively on the briefs the groups submitted and the legal work they supported. In fact, HLRS was Boutilier's most significant organizational advocate, and since 1964 HLRS's parent organization, the Philadelphia-based Janus Society, had been attacked by much of the homophile movement for not being sufficiently respectable.⁶⁵	50
For the last two decades most scholars who have examined the homophile movement of the 1950s and 1960s have concentrated on the Mattachine Society (the publisher of Mattachine Review), One, Inc. (the publisher of One magazine), and the Daughters of Bilitis (the publisher of The Ladder), all of which were originally founded in California. Many have commented on the movement's increased militancy in the mid-1960s, when, influenced by civil rights activism, some local homophile groups began organizing peaceful public demonstrations and campaigning more aggressively (though respectably) for gay, lesbian, and bisexual rights. But few scholars recognize that in this period an influential faction of the homophile movement began to move beyond the politics of militant respectability and turn toward a more radical politics of sexual liberation.⁶⁶ This faction, it turns out, proved most supportive of Boutilier.	51
In his 1963 campaign for the presidency of the Janus Society, Clark Polak had argued, "We must operate in a way that is beyond reproach." Polak, however, did not keep his promise. Within months of his election, he transformed Janus's monthly newsletter into a sexually controversial and risque publication called Drum, which had a circulation larger than that of all other homophile publications combined. (In a front-page story in 1968, the Wall Street Journal estimated Drum's circulation at 15,000.) According to advertisements for the magazine, "DRUM presents news for 'queers,' and fiction for 'perverts.' Photo essays for 'fairies' and laughs for 'faggots.'" Aspiring to be "a gay Playboy, with the news coverage of Time," Drum promoted sexual liberationism through male physique photographs, campy comic strips, humorous parodies, news highlights, pro-gay features, and pro-sex editorials. Essentially, the magazine combined some of the features that made male physique magazines immensely popular and some of the features that made respectable homophile publications significantly influential. In multiple, direct, and confrontational ways, Janus and its magazine challenged the carefully constructed images of respectability cultivated by other homophile groups.⁶⁷	52
Because of this, many homophile leaders attacked Polak, Janus, and Drum, fearing among other things that radical sexual liberationism would provide ammunition for the enemies of the movement.⁶⁸ In response, Polak publicly indicted the "comic-opera gulf between the unrealistic homophile movement and the realities of homosexual life," criticized the "almost anti-homosexual disdain permeating the various groups," and savaged movement publications for their "groveling obsequeousness." Drawing on the black power critique of civil rights "Uncle Toms," Polak assailed homophile groups for caring only about "'good' homosexuals," which he campily labeled the politics of "Aunt Maryism." In contrast, Polak argued for a broad agenda of sexual liberation, attacking the "anti-sexualism" of laws against "abortion, birth control, obscenity, prostitution, adultery, fornication, and cohabitation."⁶⁹	53
Polak also bragged to his homophile rivals about the successes of Janus, Drum, and Trojan Book Service, his lucrative pornography business. But if many of Polak's activities defied the politics of respectability, he also poured his profits into respectable legal battles. In 1964, Janus began discussions about forming "a new organization along the lines of the Homosexual Law Reform Society" in Great Britain. Significant fundraising began with an anonymous $6000 donation in 1965. Later that year, Polak wrote that Griswold had bolstered his confidence and shifted his focus: "Law reform will not be effectuated through the State Legislatures. ... We see the solution within the Federal Court system, with the Supreme Court as the final voice. The Connecticut birth control decision points the way—invasion of privacy." (Polak made no mention of the antigay language in Griswold.) In November 1965, he reported that Janus and Drum had raised $10,000 and "we are now looking for court cases to support." In 1966 Polak announced that the Janus Society would be broken up into three parts: Drum Publishing Company, Janus Trust, and HLRS. Though this appears to have never happened, HLRS soon began supporting gay rights cases around the country.⁷⁰ One of HLRS's greatest successes came in 1967, when the New Jersey Supreme Court ruled unanimously in Val's that lesbians and gay men had the right to assemble in bars. Significantly, the Society funded this case but not two companion gay bar cases because Val's concerned "homosexual association" but not allegations of "kissing between two males."⁷¹ Some activists believed in respectability as an expression of their values, but Polak used respectability selectively, aiming carefully crafted messages to specific audiences.	54
The lengths that Polak was willing to go is reflected in a letter he wrote to Freedman in which he sought her opinion about the HLRS Boutilier brief: "Would medical professionals who feel homosexuality is a 'disturbance,' but not pathology, who would be willing to sign the brief with reservations be beneficial?" She replied, "I have serious reservations ... but prefer to think about it carefully, rather than be precipitous in my response." Here one of the most sexually radical leaders of the homophile movement, who in speech after speech and article after article attacked gay leaders for not being sufficiently pro-gay, considered the strategic use of antigay medical testimony, while his heterosexually married ally expressed reservations.⁷²	55
HLRS was not the first homophile group involved with Boutilier and homophile groups were not alone in fighting for Boutilier. Freedman requested financial assistance from the Mattachine Society of New York in July 1966. Shortly thereafter Mattachine began raising funds for Boutilier and invited Freedman to speak at the group's meeting. Freedman's sister remembers going to a "big gay meeting where Blanch was the speaker" and says that Freedman later remarked, "'Everyone is so loving to me. They must think I'm a lesbian.'" In November 1966, Polak wrote to Freedman that Melvin Wulf of the ACLU had suggested he contact her about Boutilier. Polak offered to produce an amicus brief and support the case financially. Freedman responded enthusiastically and soon Janus and HRLS became the primary financial supporters of Boutilier. In early 1967, Freedman wrote to Polak, "I very much like and prefer the new name Homosexual Law Reform. It says something and immediately conveys the purpose and function of the organization." Shortly thereafter, Freedman wrote to Mattachine, complaining that the group had forwarded no money to her even though it had solicited funds for this purpose.⁷³ Freedman's records indicate that Boutilier paid more than $1,100 of his own legal expenses (and struggled financially to do so, having lost his job because of publicity about his case); HLRS contributed more than $750; and the National Legal Defense Fund, a homophile organization established in San Francisco in 1967, sent $350. HLRS likely contributed in other ways, for example by compensating Gilbert Cantor, a straight Philadelphia lawyer, for preparing the HLRS brief. In 1968, the Wall Street Journal reported that HLRS had spent $5000 on court actions in 1967 and set aside $25,000 for future litigation.⁷⁴	56
Freedman received a different kind of assistance from Frank Kameny, a leading homophile activist based in Washington, D.C. Kameny wrote Freedman in February 1967 that John Macy, Jr., chairman of the U.S. Civil Service Commission, had written a letter "explicitly denying that the term homosexual can be used to describe a person or a condition, and averring that the term can be used only to describe acts." Kameny continued, "Two agencies of the Government are taking opposite positions, as suit their particular purposes of the moment." The same could have been said of the homophile movement, which in many cases argued that homosexuality was an inborn and fixed trait but in Boutilier embraced a behavioral model. Kameny also suggested that Freedman challenge the notion that Boutilier was afflicted. "Some homosexuals ... may well be afflicted; but certainly many others may well not be afflicted but merely neutrally have—or, if you want to go all the way, be blessed with—the condition."⁷⁵	57
While HLRS and other homophile activists worked in alliance with civil libertarians from the ACLU and radical immigration advocates from the American Committee for the Protection of the Foreign Born, they also worked to educate and politicize their constituencies. When Freedman wrote to Polak in January 1967 to congratulate Polak and Cantor on the HLRS brief and expressed the hope "that you will be able to get added use out of it," she recognized that the Court was not the only intended audience. As Boutilier made its way through the courts, Drum kept thousands of readers in states of excitement created by the combination of sexy physique photographs, respectable legal news, and excerpts from the HLRS brief. Before the Court's decision was announced, Drum looked to the future with some degree of pessimism: "Movement officials are not hopeful in this case. For one thing, an immigrant has very few rights until he becomes a citizen; for another, Congress has the legal right to decree what classes of people will be either permitted or denied citizenship; and, possibly most damaging, it appears as if Congress intended to exclude homosexuals—even if we are not 'psychopaths.'" But Drum also found reasons for optimism: "Whatever the eventual outcome, however, the Homosexual Law Reform Society has presented a masterful plea for Boutilier and, through him, the 15 million or so other homosexuals in America today." The magazine was particularly proud that HLRS had obtained statements from twenty-eight experts who declared that "homosexuality was not an illness." Polak gave the case "only a 30% chance of succeeding," but Drum added that "such an appraisal is not as pessimistic as it first appears" since a dissent "could presage events to come."⁷⁶	58
After arguments were presented to the Court but before the decision was rendered, Janus members were further encouraged by a report in their newsletter, which stated that the HLRS brief "made a positive impression on at least three of the members of the Court." According to this report, "Potter Stewart told the Government attorney that it appeared to him that the term 'psychopathic personality' was a code word of some sort that no one but those on the in could understand to mean homosexuality." When the government attorney could not answer Stewart's question about whether the term had been applied "to other persons or groups," Stewart asked him to find out. On 17 March, Cantor received a copy of the reply, which indicated that "though they could not point to specific examples the [INS] was sure that it had been applied elsewhere." Warren was said to have "listened with rapt attention," Douglas "spent the whole time 'writing notes furiously,'" and Fortas "was among those who questioned the Government on their position that all homosexuals were 'psychopaths.'" After the case was lost, Drum tried to rally around a "victory of sorts" in the form of Douglas's "impassioned dissent." Polak also criticized the Court's decision in a letter to the editor published in Sexology and a press release distributed to major newspapers. The latter yielded a New York Times article headlined "Supreme Court's Decision on Homosexual Attacked." Polak vowed to "introduce similar cases into the courts within the near future," but the Supreme Court would not hear oral arguments in a gay rights case again until 1984.⁷⁷	59
While the homophile and later the gay liberation and lesbian feminist movements continued to pursue law reform, Freedman's and Boutilier's days in the struggle ended around the time that the Court decision was announced. According to a member of her family, Freedman was "deathly sick from sclaraderma [scleroderma] when she argued the case" and "when she finished, she checked into a hospital to die." Another family member recalls, "She had a very tough time during the proceedings. She said she had a horrible thirst and couldn't swallow her saliva." Freedman died on 16 April 1967, a little more than a month after she appeared before the Court and several weeks before the Court's decision was announced, but several family members say they are certain she knew about the outcome of Boutilier before she died. Her sister remembers meeting Boutilier when he visited Freedman in the hospital and says that "both knew they lost the Supreme Court decision." She continues, "While he came to console her, Blanch ended up consoling Boutilier."⁷⁸	60
Boutilier apparently was profoundly troubled by the Court's decision and he may well have been deeply distressed about Freedman's illness and death. According to an account provided by Boutilier's niece, Clive was hit by a car while crossing a street in New York in 1967. He was in a coma for 30 days and was left brain damaged. I truly believe that this was an attempt at suicide because of the Court's decision and my siblings concur. Unfortunately we may never know for sure but it sure was coincidental and ironically the car that hit him was driven by a Customs Officer. My grandmother, grandfather, and Clive returned to Canada after his release from the hospital and took up residence in Niagara Falls, Ontario. My grandmother cared for Clive at home for several years until she could not do it anymore. He has always been mobile and can dress and feed himself but walks as if in a drunken stupor. He has resided in group homes for the disabled since the early '90s. I do believe that he remembers his lifestyle because I have a nephew who is gay and Clive once said to me, "He has the problem too, doesn't he?" I am sure that my grandmother drummed it into his head that what happened was to never be brought into the light of day ever again. Boutilier was deported on 10 November 1968 and died nearly thirty-five years later, on 12 April 2003.⁷⁹	61
Meanwhile, because of the confusion that surrounded the term "psychopathic personality," the U.S. Congress had attempted to clarify matters in 1965 by specifically excluding immigrants with "sexual deviations" along with immigrants with "psychopathic personalities." Although new lower court rulings, PHS procedures, and INS practices changed the ways that these provisions were administered over the subsequent twenty-five years, the exclusions officially remained in force until 1990, when they were eliminated at the same time that new immigration procedures allowed the INS to exclude people with HIV and/or AIDS.⁸⁰	62

Conclusion
The decision in Boutilier made evident what was declared implicitly or explicitly in the Court's abortion, birth control, interracial marriage, and obscenity rulings in the period from 1965 to 1973: that the Court's vision of sexual citizenship was not libertarian or egalitarian and that it was based on a doctrine that privileged adult, heterosexual, monogamous, marital, familial, domestic, private, and procreative forms of sexual expression. This doctrine influenced the Court not only in privacy cases but also in cases concerning immigration, marriage, and speech. Drawing on familial fantasies about the "civilized" past of middle-class "free" white men, the doctrine allowed the state to continue regulating the nation's sexual borders. We need not look to the post-1973 period for evidence of a Court reversing itself in a set of sexually conservative rulings produced in an era of backlash; the conservatism is plain to see in the Court's liberalizing rulings from 1965 to 1973 and it is evident when Boutilier is acknowledged and analyzed. Responding to sexual revolutions from below, the Court sought to limit their effects from above. As Justice Warren Burger wrote in a 1973 obscenity case, "One can concede that the 'sexual revolution' of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive 'hard core' materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine."⁸¹ Constrained by the legal system but also by their choices about how to argue their cases, Boutilier's advocates, some of whom were among the homophile movement's most significant sex radicals, participated in the development of the Court's doctrine by contributing to negative judgments about homosexuality.	63
On the most basic level, Boutilier declared to lesbian, gay, and bisexual aliens and other aliens who had engaged in same-sex sex, whether they resided inside or outside the United States, that they were not eligible for U.S. citizenship and were not welcome on U.S. land. For these people, the denial of citizenship was potentially or effectively literal. Boutilier also delivered powerful messages to U.S. citizens. The Court had previously announced in Griswold and Fanny Hill that marriage conferred special privacy rights on citizens and that citizen majorities had special privileges in relation to sexual representation. Soon the Court would declare in Loving, Eisenstadt, and Roe that citizens could claim other special rights in the realms of marriage and reproduction. At no point did the Court suggest that citizens had rights to cohabit, fornicate, commit adultery, or engage in homosexual acts, and in several instances the Court declared affirmatively that citizens did not have such rights. In Boutilier, the Court announced that the state could define homosexuality as a psychopathology, with potential implications not only in the realm of immigration law but also in any other dimension of social, cultural, and political life (including voting) in which the rights of the mentally ill were limited. The decision in Boutilier also sent a message to U.S. citizens that the homosexuals among them could claim only the rights of second-class citizenship and this only because they had been born in the United States or had been naturalized under false pretenses. Homosexual citizens were far from alone in this. Many members of ethnic and racial minorities, poor people, people with disabilities, and people in poor health knew that the same was the case for them. For all of these groups, citizenship in all of its political, social, and sexual dimensions was far less secure than it was for those in the dominant culture who could rest assured that they would have been welcomed as new first-class U.S. citizens had they not been born in the United States.	64
More than three decades after Boutilier, in Lawrence (2003) the Court struck down state sodomy laws, reinterpreting Griswold, Eisenstadt, and Roe in ways that reject (without acknowledging) the earlier Court's view that there is no righ

Boutilier and the U.S. Supreme Court's Sexual Revolution

Marc Stein

Sexual Liberalization

Policing Sexual Borders

Order in the Court

Strategies of Reform

Conclusion