New book questions US Supreme Court's sexually libertarian image

York history Professor Marc Stein grew up in the suburbs of New York City in the 1960s and 1970s with a passionate faith in the US Constitution and US Supreme Court as strong protectors of freedom, equality and democracy in the post-war era. 

That faith was shaken in the 1980s when the Supreme Court justices upheld state sodomy laws, which he initially attributed to the conservative backlash of the Reagan era. Then, in the early 1990s as a graduate student, Stein stumbled across a 1967 decision upholding the deportation of Canadian citizen Clive Boutilier, which challenged his assumptions about the earlier liberalism of the US Supreme Court.

Boutilier vs. the Immigration and Naturalization Service (INS) was one of the Supreme Court's first major gay rights cases, says Stein, an award-winning author, editor and teacher in York's Department of History, School of Women's Studies and Sexuality Studies Program, all in the Faculty of Liberal Arts & Professional Studies.

What the Supreme Court justices did in this case did not protect equality and freedom. Instead, they upheld a provision of the 1952 Immigration & Nationality Act that authorized the exclusion and deportation of aliens afflicted with psychopathic personality, which the US Congress, the INS and the Supreme Court interpreted to apply to homosexuals.

Canada had introduced its own version of the US immigration law in the 1950s, but repealed it in the 1970s, a few years after homosexuality was declassified as a mental illness in the Diagnostic and Statistical Manual of Mental Disorders. The US didn't repeal its law until 1990.

Left: Marc Stein

Although liberals celebrate and conservatives condemn the US Supreme Court of the 1960s and 1970s for its rulings on issues such as abortion and birth control, Stein says, neither is correct in depicting the court of that era as sexually libertarian or egalitarian. He argues this point in his new book Sexual Injustice: Supreme Court Decisions from Griswold to Roe (University of North Carolina Press, 2010), which looks at six major Supreme Court cases – Griswold, Fanny Hill, Loving, Eisenstadt, Roe and Boutilier.

More than half the book is devoted to the Boutilier case. Stein is the first scholar to examine this episode in any depth and to tell Boutilier’s tragic story following the Supreme Court ruling. Boutilier had moved from Nova Scotia to the US with his family in the 1950s and several of his brothers served in the US military. When he applied for US citizenship in the early 1960s and revealed that he had once been arrested, though not convicted, on a sodomy charge in New York City, his legal troubles began.

In doing the research for the book, Stein studied liberal rulings on birth control, abortion, interracial marriage and obscenity, alongside the conservative ruling on homosexuality in Boutilier. What he found was that the sexual rights doctrine adopted by the Supreme Court from 1965 to 1973 was not liberal or egalitarian. In fact, it upheld heteronormative assumptions regarding "the supremacy of adult, heterosexual, marital, monogamous, private and procreative forms of sexual expression," he writes. Marital and reproductive rights were upheld; sexual rights were not. These decisions also reproduced and reinforced social hierarchies based on class, race, gender and citizenship. And liberal and leftist advocates who argued these cases before the Supreme Court "condoned sexual discrimination".

Right: Andrew Boutilier (left), Clive Boutlilier's brother; Joyce Boutilier, Andrew's wife; Clive Boutilier; and Eugene O'Rourke, Clive's partner

Their arguments in birth control and abortion cases, for example, distinguished between laws that interfered with marital and reproductive rights, which they challenged, and laws against adultery, fornication and sodomy, which they said were constitutional, says Stein.

In Boutilier’s case, the ruling concurred with the view that homosexuals suffered from psychopathic personality and so should be deported. After the decision, Boutilier’s case was all but forgotten. The decision against him didn’t conform to popular narratives about the liberalism of the US Supreme Court after the Brown vs. Board of Education decision on racial desegregation, so it was ignored.

Stein adds that many US gay and lesbian activists challenged discriminatory policies and practices during the 1950s and 1960s, but that was also forgotten, giving rise to the popular myth that the gay and lesbian rights movement began in the 1970s. In fact, says Stein, it started much earlier and was quite vigorous, as can be seen by the extraordinary coalition that defended Boutilier, which included immigration advocates, civil libertarians and gay rights activists.

"My book is the first to show that the US gay and lesbian movement of the 1950s and 1960s had a well-developed strategy of turning to the courts to defend sexual rights," he says.

The sexually conservative aspects of the Supreme Court's "liberal" decisions on abortion, birth control, interracial marriage and obsenity in the late 1960s and early 1970s vanished from the public consciousness. Instead, the US public came to believe that the Supreme Court's decisions of that era were sexually libertarian and egalitarian. Decades later, the Supreme Court itself seemed to adopt the public's point of view, declaring in its 2003 decision striking down state sodomy laws that the ruling was consistent with the decisions of the 1960s and 1970s, says Stein.

This, he says, is consistent with new theories of "popular constitutionalism," which emphasize the importance of popular understandings of legal rights.

Stein hopes Sexual Injustice will shed light on the implications of some of the Supreme Court’s decisions, as well as the sexual revolution, and help educate the public regarding heteronormative rights and privileges in the past and the present.