Courting Justice: Gay Men and Lesbians v. the Supreme Court by Joyce Murdoch, Deb Price, Deb Price

From Barnes & Noble

Bowers v. Hardwick (1986); Romer v. Evans (1996); Boy Scouts of America v. Dale (2000): For decades, lawyers have been contesting the constitutionality of edicts about homosexual behavior. The history of these complicated legal proceedings seldom makes interesting reading. In the hands of life partners Murdoch and Price, however, these many-tiered battles become comprehensible and significant.

From the Publisher

Since 1958, twenty-five men and two women have forced the Supreme Court to consider whether the Constitution's promises of equal protection apply to gay Americans. Here Joyce Murdoch and Deb Price reveal how the nation's highest court has reacted to these cases--from the surprising 1958 victory of a tiny homosexual magazine to the 2000 defeat of a gay Eagle Scout. A triumph of investigative reporting, Courting Justice gives us an inspiring new perspective on the struggle for civil rights in America.

Washington Post

[T] those interested in the changing role of gay people in American society will find it indispensible.

National Journal

the authors use the stories to tell a powerful tale about the law and its shortcomings.

Booklist

The cast of characters involved is fascinating.

Out

...does a superb job of detailing the often rockly journey toward equality.

Genre

. . .an unprecedented and intimate look behind the rulings in the most influential cases in the gay rights movement.

Washington City Paper

...fills a gap in gay legal history but also provides rare details about personalities behind one of the country's most poewrful institutions...and insight about the court's quirky traditions.

Bookclub

[T]he most stunning indictment of corporate America since Ida Tarbell's expose of the Standard Oil Trust more than a hundred years ago.

Washington Monthly

...a compelling sociologial study on changing attitudes.

Library Journal

National Journal managing editor Murdoch and Detroit News columnist Price, both formerly of the Washington Post, have assembled an outstanding piece of legal and historical scholarship that details the ongoing struggle to protect the constitutional rights of the gay community. Drawing upon eyewitness accounts from law clerks and staff assistants who worked alongside Supreme Court justices, many of whom are now retired or deceased, the authors provide a bird's-eye view of how the Court's opinions are reached as well as the subtle but profound impact of each justice's personal background and ideology on the decision-making process. The gay rights struggle reflects the Court's need to reconcile the demands of precedence and tradition within the framework of a dynamic and evolving constitution and a changing societal structure. The authors show how this pressure-cooker of social change can often divide the court, thus causing fractious debates and split decisions. This book is an especially useful tool for gauging the extent to which the Supreme Court acknowledges and incorporates evolving societal norms. Highly recommended for academic and law libraries, and any specialized collection focusing on minority rights. Philip Y. Blue, New York State Supreme Court Criminal Branch Law Lib., New York Copyright 2001 Cahners Business Information.

Booknews

Murdoch (managing editor for politics, ) and Price (Washington bureau, ) explore the history of attempts by homosexuals to petition the U.S. Supreme Court to expand the protection of the Constitution to cover gay rights. As one would expect from a pair of journalists, much of the history focuses on the people involved, but the societal and legal issues involved are not given short shrift. The history follows cases from the 1958 decision upholding a gay magazine's right to be distributed in the mails to the 2000 decision upholding the Boy Scouts' legal right to discriminate against homosexuals. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Kirkus Reviews

The unsettled legalities of gay rights—seen through the lens of Supreme Court decisions—are fully and fascinatingly explored by Detroit News journalists Murdoch and Price (And Say Hi to Joyce, 1995). As Murdoch and Price make amply clear, the Supreme Court has "determined not to be an engine driving social change in the area of gay rights." While the authors appreciate that the judiciary is a deliberative (rather than executive) body, they fault it nevertheless for having "been a drag on the nation, holding back the pace of progress toward the full acceptance of gay people." The court is notoriously secretive, so Murdoch and Price pulled together their materials from the National Archives, newspapers, justices' papers, and (perhaps most significantly) interviews with the principals and the justices' clerks. Starting with the court's decision in favor of One, The Homosexual Magazine in 1958, and continuing through the ruling that upheld the dismissal of a gay scoutmaster in 2000, Murdoch and Price explain the constitutional issues involved—from freedom and fairness to privacy and free speech and due process. In the process they provide a primer on the ways of the Supreme Court—its curious isolation from the involved parties and each justice's isolation from all the others—and sketch the personalities of William O. Douglas, John Paul Stevens, William J. Brennan, and many others. They include Brennan's dissenting opinion in a case involving the dismissal of a bisexual schoolteacher, Kameny's 1960 formulation of "an equal-rights position that would provide much of the intellectual underpinnings for what would be known as the gay-rights movement," and an examinationof sodomy law and its infringement "on the right of privacy and free association." Among the historical tidbits included is a 1950s New York Times headline: "Perverts Called Government Peril." A telling story of justice's grinding wheels, and a crackerjack resource volume on gay legal history. (8 pp. photos, not seen)

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Table of Contents

Read a Sample Chapter

Chapter One

ONE Standard
of Justice

American homosexuals' fight for equal constitutional rights began not on New York City's Christopher Street or San Francisco's Castro Street but at "232 South Hill Street, Los Angeles 12, California." From that seedy, garment district address, an almost penniless publication demanded the attention of the U.S. Supreme Court. Against all odds, it won not only the court's attention but also an unprecedented legal victory that allowed the gay press to blossom.

    By the fall of 1954, nearly 15 years before the Stonewall Rebellion that is marked as the start of the modern-day gay-rights movement, those few homosexuals bold enough to subscribe to the nation's first homosexual publication knew 232 South Hill as a return address. Most of the monthly magazine's 1,650 subscribers prudently paid extra—one dollar a year—for the supposed protection of receiving it in a sealed, first-class envelope bearing that nameless return address as its only identifying mark. The Los Angeles postal officials policing the mails for obscenity were equally familiar with that seemingly unremarkable return address.

    232 South Hill was a run-down three-story office building with a Goodwill Store at street level. Upstairs, most of the offices housed a perpetually changing cast of fly-by-night sweatshops, the type that churned out women's clothes until the workers tried to get paid and the boss vanished. In the dingy third-floor hallway, the dull whir of sewing machines was jarringly punctuated by a soprano singing teacher, whosevoice wandered around on every note. In that undistinguished location straight out of a film noir set, a white-on-black hand-lettered sign on a frosted glass door read simply ONE, the name of the daring publication that frankly billed itself as "The Homosexual Magazine."

    From its first issue, ONE attributed its name to a lofty quotation from 19th-century British writer Thomas Carlyle: "... a mystic bond of brotherhood makes all men one." But the name's roots also were in the insider code—"He's one"—and in "the ubiquitous World War II joke" that it produced, ONE news columnist Jim Kepner later wrote. In that joke, "an Army sergeant [was] teaching a group of rookies to count off, coming to one who didn't speak up and barking, `Hey! You! Ain't you one?' `Yes!' lisped the recruit, `Are you one, too?'"

    ONE's two-room office—half of it windowless—was just as shabby as the rest of the building. The mishmash of used bookshelves, furniture and office equipment looked like the donated castoffs that it was. But the small volunteer staff, which had launched ONE as a serious-minded voice for long-silent homosexuals in January 1953, was proud to no longer be working out of an editor's basement, proud to have exchanged P.O. Box 5716 for a real address. The editorial team tended to procrastinate, but as its end-of-the-month deadline approached "everybody would turn out and we'd smoke and have hamburgers and finish the damn magazine," a founder, Dale Jennings, recalled nearly a half century later. During those marathon sessions, "the rooms were filled with smoke and sparking conversation," said Don Slater, another founder.

    The magazine was the obsession, indeed the primary occupation, of its devoted staff. Slater, for example, was largely supported by his longtime lover, Tony Reyes, the lead flamenco dancer at a Los Angeles nightclub. To disguise the size of ONE's very small stable of writers, each regular contributor adopted several pen names. The most fearless wrote under their own names as well. The threat of government censorship always hung over the heads of ONE's staff, but they did not have the luxury of being continually fearful of it.

    "On a day-to-day basis, the danger from the censors seemed no worse than the others to us," Slater recalled. "For instance, we had to deliver the magazine to the newsstands ourselves. Circulation was crucial. At first no distributors would touch ONE. And I was more than once physically chased away from a newsstand with the proprietor behind shouting, `You fucking cocksucker! You want me to carry that dirty rag? You bastard! Don't let me catch you around here again!'"

    Continually dogged by shortages of money, help and publishable articles, ONE skipped its August and September issues in 1954. But managing editor Irma "Corky" Wolf, who used the pseudonym Ann Carll Reid, got the next issue into the mail right on time—October 1, 1954.

    Soon readers who bought ONE at newsstands and pushed its circulation up to 5,000 were calling to ask, "Where's the issue?" A letter from Los Angeles postmaster Otto K. Olesen provided the answer. As ONE attorney Eric Julber explained at a November 12 staff meeting, Olesen said "he had been instructed by the U.S. Postal Dept. in Washington to detain the second-class mailing of ONE's October issue, pending final determination of [the] U.S. solicitor general as to its mailability." Six hundred copies had been seized.

    Initially, ONE editors weren't particularly alarmed because the August 1953 issue had been held up three weeks before being cleared by postal officials. That issue's cover had asked "Homosexual Marriage?"—then an almost unimaginable question that the author, an unabashed advocate of promiscuity, answered by warning that acceptance of homosexuality would necessarily lead to homosexual marriage and mandatory monogamy. When the marriage issue was deemed fit to be mailed, the earnest little magazine's staff brashly declared on its October 1953 cover that "ONE is not grateful." And it prematurely declared victory: "... We have been pronounced respectable. The Post Office found that ONE is obscene in no way.... Never before has a government agency of this size admitted that homosexuals not only have legal rights but might have respectable motives as well."

    Despite the bravado, ONE's first brush with federal authorities made a staff already vigilant about trying to avoid obscenity charges take the added precaution of having attorney Julber read every word in each issue at least twice before the copy was typeset. Yet when government censors in Washington finished inspecting ONE's October 1954 issue, they banned it under a law that forbade the mailing of any "obscene, lewd, lascivious or filthy" publication.

    Julber was just a few years out of law school when he agreed to become ONE's unpaid attorney and try to protect its civil liberties. So far as he knew, he'd never before been acquainted with homosexuals. "I thought, `This will help my reputation in the future,'" Julber recalled at age 74. "Actually, it didn't because everyone thought, `Julber must be gay.' I didn't care. [ONE's editors] were so clearly in the right that I thought they deserved legal representation."

    The ONE staff, "a tiny ever-shifting band of radicals" that had never numbered more than about a dozen, wanted to fight. The notion of publishing a magazine for and by homosexuals had originated at a 1952 discussion group of the Mattachine Society, an organization founded in 1951 on the then-radical premise that homosexuals might eventually improve their place in society by meeting to explore common concerns. ONE's founders and eventual staff saw a need to move from talk to activism by producing an unprecedented publication. None was a professional journalist, but that was one of their few common traits. Some were civil libertarians. Others considered themselves conservative Republicans. Several of ONE's early driving forces were ex-Communists. "I was a card-carrying Communist for almost a week. And then there was a knock on the door, and here came a gal that was in my cell, I guess you'd call it. And she said, `We're going to have to ask for you to resign.' And I said, `Why?' Yes, you guessed it, `You're homosexual,'" recalled ONE founder Dale Jennings, whose sister owned a print shop and gave ONE the generous price-break on paper and printing that enabled it to get started.

    The ONE staff, which included several women, didn't even have a unified position on whether "homosexual" described people or only particular sex acts. "The only thing that bound us together was a determination to escape the social inequality we faced. It was not so much a matter of the law, but its harsh and unequal enforcement," said founder Don Slater.

    ONE itself was not Communist, a conclusion the Federal Bureau of Investigation reached before calling off its first secret investigation of the magazine in December 1953. In fact, a consistent, unspoken theme running through the issues leading up to the October 1954 ONE was a belief in democracy and education—that is, if homosexuals and the public at large could learn enough about the true nature of homosexuality, the government would stop discriminating against homosexuals.

    Gay pride was an unknown concept. (Several editors almost resigned over a cover article entitled "I'm Glad I'm Homosexual." Kepner recalls, "They said, `How can you possibly be glad? Who would choose to be this way?'") Yet ONE's staff had a healthy sense of indignation at being targeted by the government. With the seizure of their October 1954 issue, ONE editors were eager "to take the Post Office on" not only because they thought their fledgling magazine was the victim of a double standard but also because "we were all tired of the uncertainty facing each issue," Slater recalled.

    ONE couldn't afford to fight, though. At the end of October, accounts receivable totaled $1,428.89; accounts payable, $1,433.70. Julber volunteered to handle a lawsuit free of charge. The young attorney turned to the American Civil Liberties Union (ACLU) for "heavyweight support. But, believe it or not, when I said it involved a homosexual magazine, they said they wouldn't get involved. I was astounded," Julber recalls.

    After an 11-month delay that Julber attributed to the magazine's financial woes, ONE filed suit in federal court against Los Angeles postmaster Olesen, challenging the decision that the October 1954 issue was unmailable. Ironically, the cover of the disputed issue declared, "You Can't Print It!" In the anonymous cover article "by ONE's legal counsel," Julber explained the censorship guidelines he'd cautiously instituted in trying to ensure that ONE did not run afoul of the federal law against mailing obscene material.

    Julber's censorship explanation was needed, according to Jim Kepner, because "readers had complained bitterly that the magazine was so damn tame." Some thought they weren't getting their 25 cents' worth; if they had wanted a totally staid magazine, they could get Time for 20 cents. Kepner, then about 31, was a ONE news columnist who supported himself by working the midnight shift in a milk carton factory. Kepner, who died as this book was being written, never knew his exact age because he was a foundling, discovered as a toddler under an oleander bush. Reporting that discovery, The Galveston [Texas] Daily News hailed him as "our little visitor from Mars," he said.

    Trying to readjust readers' expectations, Julber began by pointing out that anyone who knowingly broke the obscenity law could be fined $5,000 and/or imprisoned for five years. Noting that there was no way to be certain precisely what federal courts might see as "obscene, lewd, lascivious or filthy," he warned that "there is one extreme school of legal thought that would say that ONE, merely by its existence, is illegal. That reasoning would run as follows: Homosexual acts are made crimes in every state of the union. ONE is published specifically for homosexuals. Therefore, ONE is a magazine for criminals ... [and, thus,] illegal. This, however, is too extreme a view for 1954." ONE tried to avoid being tarred as criminal by repeatedly stating that it did not advocate illegal behavior. Julber wrote that ONE probably was on safe legal ground as long as it discussed the "social, economic, personal and legal problems of homosexuals" and avoided stimulating "sexual desires." For that reason, he had deleted portions of the Walt Whitman poetry in an article exploring evidence that the poet was homosexual.

    Julber told readers, "ONE cannot print the following: lonely hearts ads, cheesecake art or photos; descriptions of sexual acts or the preliminaries thereto.... Permissible: `John was my friend for a year.' Not permissible: `That night we made mad love'; descriptions of homosexuality as a practice which the author encourages.... Characters cannot rub knees, feel thighs, hold hands, soap backs or undress before one another...." Julber's rules were "relaxed somewhat" for lesbian articles.

    As Kepner later explained, "Our lawyer figured that, generally speaking, the law was a little easier on descriptions of lesbians because an awful lot of men were turned on by that." Kepner added, "We knew that the interpretation of the laws was unfair, that what was permissible for heterosexuals on a scale of one to 10 was 10—and less than one for us."

    Julber had, in fact, relaxed his rules in the very issue that he spelled them out: "... Pavia pressed her knee conspiratorially against Jill's." In "Sappho Remembered," a four-page romance that playwright James Barr Hugate wrote as "Jane Dahr" to counteract a shortage of manuscripts from women, a 30ish singer and her 20-year-old secretary, Jill, touched four times. The singer, Pavia, gradually admitted to herself that she was in love with Jill. The younger woman, meanwhile, was torn between the singer and the "nice young man" who wanted to marry her. But unlike most lesbian pulp fiction of the day, there was no tragic lesbian death scene to keep government censors at bay. The lesbian relationship simply triumphed.

    When federal officials had to justify branding ONE's October 1954 issue "obscene," that short story was always the first evidence cited. In response to ONE's lawsuit, the U.S. attorney's office in Los Angeles told federal District Court Judge Thurmond Clarke that the story was "obscene because [it is] lustfully stimulating to the average homosexual reader."

    The postmaster's legal team also targeted as obscene the "filthy words" in "Lord Samuel and Lord Montagu." A bawdy 15-verse poem by a Canadian professor who used the pen name "Brother Grundy," it made light of the British uproar over the arrests of several prominent men, including the actor Sir John Gielgud, on homosexual "morals" charges. One member of Parliament was convicted of "importuning" other men at urinals. The most vulgar verse declared "Lord Samuel says that Sodom's sins / Disgrace our young Queen's reign, / An age that in this plight begins / May well end up in flame.... Would he idly waste his breath / In sniffing round the drains / Had he known `King Elizabeth' / Or roistering `Queen James'?" ONE's Don Slater later admitted, "We knew we took a chance with Grundy, but we simply couldn't resist. Have you read the poem? Too delicious!"

    Federal attorneys also contended that a small ad for a trilingual Swiss monthly, Der Kreis, or The Circle, rendered ONE unmailable "because it gives information for obtaining obscene material," meaning, the Swiss magazine itself.

    The legal arguments against ONE initially proved persuasive. The magazine suffered back-to-back court defeats. First, on March 2, 1956, Judge Clarke handed down a decision declaring the October 1954 issue obscene for precisely the reasons offered by Postmaster Olesen's legal team. Clarke added, "The suggestion that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected."

    Then, on February 27, 1957, a three-judge panel of the Ninth Circuit Court of Appeals branded the October 1954 issue "morally depraving and debasing," in other words, obscene and unmailable. "The magazine ... has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of persons reading it," the court found. Quoting a prior ruling that obscenity laws are not designed to fit the moral standards of "society's dregs," the appellate judges declared, "Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority."

    The judges were appalled by "Sappho Remembered." "The climax," they wrote, "is reached when the young girl gives up her chance for a normal life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of [ONE's stated goal of] dealing with homosexuality from the scientific, historical and critical point of view." As for the poem, the judges said it "pertains to sexual matter of such a vulgar and indecent nature that it tends to arouse a feeling of disgust and revulsion." The Swiss ad "appears harmless" but is not, the judges said, because it tells readers "where to get more of the material contained in ONE."

"Perverts Called Government Peril"

Missing from the seemingly endless accusations that federal judges and executive branch officials hurled at ONE was the underlying reason that the weight of the federal government was bearing down on an impoverished little periodical. ONE was under assault for the same reason that both it and the Mattachine Society had been founded: The federal government had adopted an aggressive new posture in 1950 that treated homosexuals as a national menace.

    Until 1950, cautious, closeted American homosexuals—except those in the military—had little reason to fear that their sexual orientation would cost them their jobs. Society's consistent message was, "Just stay out of sight. We want to pretend you don't exist." (The military had found it expedient during World War II to ignore most homosexuals in its ranks. After the war, involuntary discharges for homosexuality tripled, according to historian Allan Berube.)

    The rapid spread of Communism early in the Cold War heightened America's fear of being undermined from within—by infiltrators, traitors or persons with so-called weak moral fiber. With the nation gripped by the notion that the enemies of democracy could be lurking anywhere, homosexuals—long practiced at hiding in plain sight—became targets. In 1950, the federal government began unprecedented attempts to expose and expel the homosexuals in its civilian workforce.

    The notion that homosexuals posed a threat to national security was planted in the minds of many members of Congress early in 1950 by Deputy Under Secretary of State John E. Peurifoy, who was in charge of ridding his department of security risks. He informed a Senate panel in February that 91 employees "in the shady category" had resigned since the start of 1947. "Most of these were homosexuals," he revealed. Already obsessed with charging that under Democratic President Harry Truman the State Department was soft on Communism, Republican leaders seized the idea that the State Department was riddled with homosexuals. Senator Joseph McCarthy soon took time out from his red baiting to accuse the State Department of poisoning the Central Intelligence Agency, which he claimed had unwittingly hired a homosexual whom the State Department had allowed to resign quietly. Next, the Republican Party's national chairman fired off a warning to 7,000 party members that, "Perhaps as dangerous as the actual Communists are the secret perverts who have infiltrated our government in recent years." The New York Times reported that GOP warning under the headline that epitomized societal attitudes toward homosexuals: "PERVERTS CALLED GOVERNMENT PERIL."

    One Republican senator rhetorically demanded to know, "Who put the 91 homosexuals in our State Department?" Historian David K. Johnson notes, "The question implied that `an unseen master hand' had placed them there in order to weaken America's foreign policy apparatus. ... Homosexuals might not be intrinsically disloyal, but they could be used by those who were, so the thinking went. They were, in the words of one contemporary tabloid magazine, `Stalin's Atom Bomb.'"

    Senate Minority Leader Kenneth Wherry, a Nebraska Republican, took the lead in demanding an investigation of the extent to which homosexuals had "infiltrated" the federal Civil Service. Those demands were heightened by an out-of-thin-air estimate offered by the chief of the District of Columbia's vice squad, Lieutenant Roy Blick. His "quick guess," as he put it, was that the executive branch harbored 3,500 homosexuals—with 300 to 400 lurking inside Truman's State Department.

    Besides being driven by Republicans' desire to gain a partisan advantage, the rapid escalation in the national fear of homosexuals was propelled by two other phenomena: The first was the fear of Communism that gripped the postwar American public, which was perpetually fed propaganda claiming that Communist agents—ordinary looking and undetected—lurked behind every corner. The second was researcher Alfred Kinsey's 1948 bestseller, Sexual Behavior in the Human Male, which shocked a nation that had considered homosexuality rare. Kinsey's findings indicated that 37 percent of white male adults had had at least one adult homosexual encounter to the point of orgasm. Oddly, the news that homosexual behavior was not so aberrant after all didn't make homosexuals seem less strange and frightening to the general population. Instead, it served "to magnify suddenly the proportions of the danger they allegedly posed," according to historian John D'Emilio.

(Continues...)