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Sexual Injustice

Sexual Injustice: Supreme Court Decisions from Griswold to Roe

Marc Stein
Copyright Date: 2010
Pages: 384
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  • Book Info
    Sexual Injustice
    Book Description:

    The U.S. Supreme Court of the 1960s and 1970s is typically celebrated by liberals and condemned by conservatives for its rulings on abortion, birth control, and other sexual matters. In this new work, historian Marc Stein demonstrates convincingly that both sides have it wrong. Focusing on six major Supreme Court cases, Stein examines the more liberal rulings on birth control, abortion, interracial marriage, and obscenity inGriswold,Fanny Hill,Loving,Eisenstadt, andRoealongside a profoundly conservative ruling on homosexuality inBoutilier.In the same era in which the Court recognized special marital, reproductive, and heterosexual rights and privileges, it also upheld an immigration statute that classified homosexuals as "psychopathic personalities." How, then, did Americans come to believe that the Court supported the sexual revolution? Stein shows that a diverse set of influential journalists, judges, and scholars translated the Court's language about marital and reproductive rights into bold statements about sexual freedom and equality. Creatively researched and persuasively argued, this book not only provides the first in-depth account ofBoutilier, one of the Court's earliest gay rights cases, but also will change the way we think about the Supreme Court and the sexual revolution.

    eISBN: 978-1-4696-0627-9
    Subjects: Law, Sociology

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xvi)
  4. Introduction
    (pp. 1-24)

    In its controversial 2003 decision inLawrence v. Texas, the U.S. Supreme Court struck down state sodomy laws for violating constitutional rights.1 These laws, which existed in thirteen states at the time ofLawrence, were enforced infrequently but were often used to legitimate sexual discrimination. In this sense, they functioned like state laws against adultery, cohabitation, and fornication. Rarely utilized and widely flouted, these prohibitions were available for use in conflicts and debates about sexual rights and social citizenship.2

    As was evident inLawrence, such laws were not just vestiges of older systems of sexual regulation. In March 2000, for...

  5. Part 1 : Decisions and Doctrines

    • 1 : Liberalization’s Limits from Griswold to Roe
      (pp. 27-56)

      Before 1965, U.S. federal, state, and local laws policed and produced sex in countless ways. Bans on oral and anal sex prohibited particular uses of specific body parts, promoting others in the process. Restrictions on adultery, bestiality, cohabitation, fornication, homosexuality, and incest distinguished between unacceptable and acceptable partners, as did statutes dealing with those deemed incapable of consent. Laws that regulated interracial marriage, marriage involving minors, marriage between members of the same family, plural marriage, and same-sex marriage identified some liaisons as less legitimate than others. Statutes criminalizing rape and assault constructed boundaries between involuntary and voluntary sex. Laws related...

    • 2 : Consistent Conservatism in Boutilier
      (pp. 57-94)

      In the 1967Boutiliercase, the Court acted in accordance with its heteronormative doctrine when six of nine justices upheld a 1952 federal law authorizing the Immigration and Naturalization Service (INS) to exclude and deport aliens “afflicted with psychopathic personality,” a phrase the INS and the Court understood to refer to “homosexuals.” Insofar as the rights of psychopaths were severely circumscribed in the United States,Boutilierhad important implications for everyone classifiable as homosexual, but especially for aliens.1

      Boutilierwas not the Court’s first gay rights case. InONE(1958), five justices rejected a lower court’s obscenity ruling against a...

  6. Part 2 : Activists and Advocates

    • 3 : Liberalization’s Lawyers
      (pp. 97-132)

      The Supreme Court can be criticized or celebrated for its doctrine of heteronormative supremacy, but to understand how the justices came to validate the doctrine it is important to recognize that they did not invent it on their own. Some scholars adopt biographical or macrohistorical methods to interpret the Court’s decisions. This chapter and the next two are microhistorical. They concentrate on the most direct and immediate influences on the Court: the strategies and arguments used by the activists and advocates who worked on these cases.

      Did the litigants and lawyers who were victorious inGriswold,Fanny Hill,Loving,Eisenstadt,...

    • 4 : Boutilier’s Defenders
      (pp. 133-170)

      Liberal and leftist advocates supported the development of the Supreme Court’s heteronormative doctrine inGriswold,Fanny Hill,Loving,Eisenstadt, andRoe. They also contributed to the antigay language and logic ofBoutilier. In part, this can be attributed to the constraints of the legal system, but it also reflects the influence of heteronormative ideas on, and the strategic choices made by, Boutilier’s supporters.

      Three sets of advocates fought for Boutilier. Blanch Freedman, a leftist immigration lawyer affiliated with the American Committee for the Protection of the Foreign Born (ACPFB), served as his primary attorney. Although Freedman and her comrades had...

    • 5 : Boutilier’s Defense
      (pp. 171-204)

      Boutilier’s advocates used multifaceted legal arguments and rhetorical strategies when they argued his case before the Supreme Court. The main argument made by Blanch Freedman, assisted by Robert Brown and David Freedman, was that Boutilier’s due process rights had been violated. First, while the 1952 Immigration and Nationality Act provided for the deportation of aliens afflicted with psychopathic personality, the law was administered as though it provided for the deportation of aliens who engaged in homosexual acts. In this respect, the law was unconstitutionally vague, making Boutilier vulnerable to arbitrary administrative decisions and depriving him of the right to be...

  7. Part 3 : Readings and Readers

    • 6 : Remembering Griswold to Roe
      (pp. 207-242)

      The Supreme Court’s heteronormative rulings had multiple authors, including the justices, their clerks, and the advocates who influenced the decisions. Paradoxically, readers of the Court’s opinions also authored them. Like the Constitution itself, the Court’s decisions only acquired meaning through interpretive reading processes. The justices could not fully control the ways in which their rulings would be read, especially when they used ambiguous language or inconsistent reasoning. Readers of the opinions became agents of change as they interpreted the Court’s rulings in distinctive ways. Among the most influential readers of these decisions were journalists, judges, and scholars. Their comments about...

    • 7 : Forgetting Boutilier
      (pp. 243-278)

      As a profoundly and transparently conservative ruling,Boutilierpresented problems for those committed to the notion that the Court’s doctrine was expansively liberal and liberalizing. Much of the mainstream and legal press resolved this problem by ignoringBoutilier, downplaying its significance, or emphasizing that the ruling concerned the limited rights of aliens rather than the full rights of citizens. As for judges, some acknowledged the central holdings ofBoutilier, but others found ways to limit and qualify the decision’s conservative meanings. Gay and lesbian periodicals initially denounced the ruling inBoutilier, but soon began to ignore and forget the case,...

  8. Epilogue
    (pp. 279-302)

    In eight momentous years from 1965 to 1973, the Supreme Court developed a doctrine of heteronormative supremacy. The justices legitimized laws that protected and promoted favored forms of sexual expression, condoned discrimination against other types of sex, and permitted punishment for those who violated sexual norms. In decisions concerning birth control, obscenity, homosexuality, interracial marriage, and abortion, the Court created a constitutional framework for the regulation of sex and the production of sexuality. Notwithstanding minor modifications, that framework survived for the next thirty years. Only one justice from theGriswoldtoRoeera was still serving three decades later, but...

  9. Notes
    (pp. 303-344)
  10. Acknowledgments
    (pp. 345-348)
  11. Index
    (pp. 349-364)