U.S. Supreme Court Upholds Law Preventing Immigration of Gays and Lesbians

The U.S. Supreme Court ruled that Congress had the right to bar gays and lesbians from entering the United States and could deny citizenship to, and deport, any foreign national who was gay or lesbian.

Date May 22, 1967

Also known as:Boutilier v. INS

Locale Washington, D.C.

Key Figures

• Clive Michael Boutilier (1933-2003), Canadian citizen deported from the United States because he was gay
• Blanch Freedman Boutilier’s attorney
• Earl Warren (1891-1974), chief justice of the United States, 1953-1969

Summary of Event

On November 10, 1968, thirty-five-year-old Clive Michael Boutilier, a Canadian citizen, was deported from the United States, having lost his immigration case before the U.S. Supreme Court. Boutilier had grown up in Nova Scotia, the oldest son in a large, Irish Catholic farming family. In 1955, at the age of twenty-one, he legally entered the United States as a permanent resident. He arrived with several siblings and his mother, who had recently remarried, this time to a U.S. citizen. Comfortably settled in New York City, Boutilier worked steady jobs and applied for U.S. citizenship in 1963. This is when his legal troubles began.

In 1952, Congress had passed the McCarran-Walter Immigration and Nationality Act, which excludes Communists, anarchists, and other alleged subversives from the United States. The law’s original draft also explicitly excluded all foreigners who were “psychopathic personalities, homosexuals, or sex perverts.” However, the U.S. Public Health Service (PHS) advised the U.S. Senate that the term “psychopathic personality” was “sufficiently broad” to include homosexuals. Accordingly, the phrase “homosexuals, or sex perverts” was omitted from the final wording of the law. Congress made sure to specify that the change in terminology was “not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates.”

When Boutilier applied for citizenship in 1963, he admitted that he had been arrested for sodomy four years previously, although the charge had been dismissed when the complainant failed to appear in court. The Immigration and Naturalization Service (INS) examiner closely interrogated Boutilier on the exact details of the sexual encounter, as well as on his entire sexual history. Boutilier admitted that his “first homosexual experience” took place when he was fourteen years old, and that he had had sex with men three to four times per year while living in Canada (and, less frequently, sex with women). On the basis of this confession, the PHS diagnosed Boutilier as “afflicted with a class A condition, namely, psychopathic personality, sexual deviate” at the time he was admitted to the United States.

Boutilier, facing deportation, sought legal help and was represented by Blanch Freedman, a radical civil rights lawyer. He also received support from the Homosexual Law Reform Society and the American Civil Liberties Union. In 1965 the INS’s Board of Immigration Appeals ruled against Boutilier, as did the Second Circuit Court of Appeals in 1966. However, in two previous decisions, the Ninth Circuit Court of Appeals had ruled that the term “psychopathic personality” was too vague to be indiscriminately applied to all homosexuals. It was now up to the U.S. Supreme Court, in Boutilier v. INS, to resolve the conflict, and it did so in favor of the U.S. government, ruling against Boutilier on May 22, 1967.

Significance

Boutilier v. INS was the first major case in which the Supreme Court considered the rights of homosexuals. In a 6-3 decision, the Court held that one, by “psychopathic personality,” Congress had fully intended to prohibit all homosexuals from entering the United States; two, Congress had the constitutional right to bar any group from the United States; and three, the INS had clearly proven that Boutilier was “afflicted with homosexuality” long before entering the United States. Hence, he had been ineligible for legal entry and could now be deported.

In upholding Boutilier’s deportation, the Court’s decision had a chilling impact. Although the 1952 immigration law never explicitly used the word “homosexual,” Congress nevertheless made clear its intent to deny homosexuals all rights: from short-term tourist visas, to permanent residency status, to citizenship. Instead of protecting a minority group, the Court affirmed Congress’s right to discriminate on the basis of sexual orientation. From 1952 until 1990, foreign nationals who were legally admitted but later found to be homosexual had been subject to deportation, regardless of the time they had lived in the United States as law-abiding, legal residents. Ironically, when discussing the Warren Court, legal scholars traditionally have ignored this particular case, but they have not ignored the Court’s sexually “liberalized” rulings involving issues such as birth control, obscenity, and interracial marriage.

In Boutilier the majority also dismissed concerns that the phrase “psychopathic personality” was unconstitutionally vague. It also failed to recognize a denial of human rights when it concluded, “The petitioner is not being deported for conduct engaged in after his entry into the United States, but rather for characteristics he possessed at the time of his entry. Here, 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.”

Yet, the three dissenting justices likewise failed to offer a positive view of homosexuality. In their assessment, “The homosexual is one, who by some freak, is the product of an arrested development.” However, they made a distinction between conduct and character, reasoning that even though Boutilier had participated in occasional homosexual acts, he was not “afflicted with homosexuality.” And even if he were homosexual, they argued that not all homosexuals should be classified as “psychopathic personalities.”

Shortly after he lost his case, Boutilier was hit by a bus while crossing a street in New York City. He was in a coma for one month and emerged from the coma brain-damaged and mentally disabled. For the rest of his life he spoke haltingly and walked as if drunk, although he could perform basic daily functions such as dressing and eating. Family lore speculated that the accident may have been a suicide attempt. Boutilier had been extremely distraught by the legal proceedings against him and overwhelmed by mounting legal costs. The INS waited one year after his accident to deport him. Because he now needed long-term care, his mother and stepfather also returned to Canada, caring for him as long as they were able. In the 1990’s he was moved to a group home for the disabled. In 2003 he died from complications related to a heart condition. No obituary noted his passing nor the tragic part he had played in GLBT legal history.

Congress finally eliminated the homosexual exclusion clause, but not until the Immigration Act of 1990. Gays and lesbians finally gained the right to legally enter the United States and become naturalized citizens.

Bibliography

Canaday, Margot. “’Who Is a Homosexual?’ The Consolidation of Sexual Identities in Mid-Twentieth Century American Immigration Law.” Law and Social Inquiry 28 (2003): 351-386.

Luibheid, Eithne. Entry Denied: Controlling Sexuality at the Border. Minneapolis: University of Minnesota Press, 2002.

Murdoch, Joyce, and Deb Price. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001.

Stein, Marc. “Boutilier and the Supreme Court’s Sexual Revolution.” Law and History Review 23, no. 3 (Fall, 2005): 491-536.

‗‗‗‗‗‗‗. “Crossing the Border to Memory: In Search of Clive Michael Boutilier, 1933-2003.” Torquere 6 (2004): 91-115.

‗‗‗‗‗‗‗. “Forgetting and Remembering a Deported Alien.” History News Network, November 3, 2003. http://hnn.us/articles/1769.html.