1. Lawrence v. Texas, 539 U.S. 558 (2003); 123 S. Ct. 2472. As is discussed in the conclusion, the privacy right affirmed in Lawrence was qualified and limited in various ways.

2. For a review of these and other laws as of September 1994, see Posner, Richard A. and Silbaugh, Katharine B., A Guide to America's Sex Laws (Chicago: University of Chicago Press, 1996)Google Scholar. On sexual citizenship, see Berlant, Lauren, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (Durham: Duke University Press, 1997)Google Scholar; Berlant, Lauren and Warner, Michael, “Sex in Public,” Critical Inquiry 24, no. 2 (Winter 1998): 547–66CrossRefGoogle Scholar; Calhoun, Cheshire, Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement (New York: Oxford University Press, 2000)Google Scholar; Canaday, Margot, “‘Who Is a Homosexual?’: The Consolidation of Sexual Identities in Mid-Twentieth-Century American Immigration Law,” Law and Social Inquiry 28, no. 2 (Spring 2003): 351–86CrossRefGoogle Scholar; Canaday, Margot, “Building a Straight State: Sexuality and Social Citizenship under the 1944 G.I. Bill,” Journal of American History 90, no. 3 (Dec. 2003): 935–57CrossRefGoogle Scholar; Citizenship Studies 5, no. 3 (Nov. 2001)Google Scholar; Duggan, Lisa and Hunter, Nan D., Sex Wars: Sexual Dissent and Political Culture (New York: Routledge, 1995)Google Scholar; Luibhéid, Eithne, Entry Denied: Controlling Sexuality at the Border (Minneapolis: University of Minnesota Press, 2002)Google Scholar; Warner, Michael, ed., Fear of a Queer Planet: Queer Politics and Social Theory (Minneapolis: University of Minnesota Press, 1993)Google Scholar.

3. New York Times (NYT), 25 Mar. 2000, A7; Albuquerque Journal, 11 Mar. 2000; Charlotte Observer, 4 Apr. 2001; NYT, 4 Apr. 2003, A12; NYT, 20 Jan. 2004, A12. See also Jewish World Review, 25 Oct. 2000.

4. In fact, these responses preceded and anticipated the announcement of the decision. See, for example, the April 2003 comments of U.S. Senator Rick Santorum, widely reported in the press. For an early critical response from the left, see “Did Gays Get All They Want from the Supreme Court? (Really?),” History News Network, 7 July 2003, http://hnn.us/articles/1542.html.

5. See Diamond, Sara, Roads to Dominion: Right-Wing Movements and Political Power in the United States (New York: Guilford, 1995)Google Scholar.

6. Kennedy wrote, “There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases… but the most pertinent beginning point is our decision in Griswold.” Kennedy went on to discuss other precedents, including Eisenstadt and Roe.

7. Bowers v. Hardwick, 478 U.S. 186 (1986). I refer to “sexual freedom, equality, and citizenship,” as opposed to “sexual privacy,” as a way of moving beyond the limitations of the latter to encompass the Court's doctrine in such realms as immigration, marriage, and speech, to emphasize the importance of sexual publicity, and to resist the negative aspects of private/public binaries and hierarchies. See the works cited in note 2.

8. On heteronormativity, see the works on sexual citizenship cited in note 2.

9. I discuss this dynamic in “Inventing Rights and Wrongs: Rulings, Reception, and Revolution on the U.S. Supreme Court, 1965–1973,” presented at the American Historical Association annual meeting, San Francisco, Jan. 2002; The 1950s and 1960s in North America conference, Wesleyan University, Apr. 2003; the Canadian Lesbian and Gay Studies Association annual meeting, Halifax, Jun. 2003; the Sexual Worlds, Political Cultures conference, Social Science Research Council, Washington, D.C., Oct. 2003.

10. Griswold v. Connecticut, 381 U.S.479 (1965)Google Scholar. See also Eskridge, William N. Jr, and Hunter, Nan D., Sexuality, Gender, and the Law (Westbury, N.Y.: Foundation Press, 1997), 3–24Google Scholar; Garrow, David J., Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California Press, 1994), 196–269Google Scholar; Goldstein, Leslie Friedman, The Constitutional Rights of Women: Cases in Law and Social Change, 2d ed. (Madison: University of Wisconsin Press, 1989), 298–324Google Scholar; Hull, N. E. H. and Hoffer, Peter Charles, Roe v. Wade: The Abortion Rights Controversy in American History (Lawrence: University Press of Kansas, 2001), 76–88Google Scholar.

11. A Book Named “John Cleland's Memoirs of a Woman of Pleasure” v. Attorney General of the Commonwealth of Massachusetts (commonly referred to as Fanny Hill), 383 U.S. 413 (1966). See also Grazia, Edward de, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (New York: Random House, 1992), 436–43Google Scholar; Woodward, Bob and Armstrong, Scott, The Brethren: Inside the Supreme Court (New York: Simon and Schuster, 1979), 15–16, 169–77, 192–204, 244–53, 279–82, 364–65, 403Google Scholar. Other obscenity rulings in this period include Ginzburg v. U.S., 383 U.S.463 (1966)Google Scholar; Mishkin v. New York, 383 U.S.502 (1966)Google Scholar; Redmond v. United States, 384 U.S.264 (1966)Google Scholar; Redrup v. New York, 386 U.S.767 (1967)Google Scholar; Landau v. Fording, 388 U.S.456 (1967)Google Scholar; Teitel Film Corp. v. Cusack, 390 U.S.139 (1968)Google Scholar; Ginsberg v. New York, 390 U.S.629 (1968)Google Scholar; Interstate Circuit v. Dallas, 390 U.S.676 (1968)Google Scholar; Lee Art Theatre v. Virginia, 392 U.S.636 (1968)Google Scholar; Stanley v. Georgia, 394 U.S.557 (1969)Google Scholar; Walker v. Ohio, 398 U.S.434 (1970)Google Scholar; Blount v. Rizzi, 400 U.S.410 (1971)Google Scholar; Byrne v. Karalexis, 401 U.S.216 (1971)Google Scholar; United States v. Reidel, 402 U.S.351 (1971)Google Scholar; United States v. Thirty-Seven Photographs, 402 U.S.363 (1971)Google Scholar; Kois v.Wisconsin, 408 U.S.229 (1972)Google Scholar; Rabe v. Washington, 405 U.S.313 (1972)Google Scholar; Papish v. Board of Curators, 410 U.S.667 (1973)Google Scholar; Miller v. California, 413 U.S.15 (1973)Google Scholar; Paris Adult Theatre I v. Slaton, 413 U.S.49 (1973)Google Scholar; Kaplan v. California, 413 U.S.115 (1973)Google Scholar; United States v. Orito, 413 U.S. 139 (1973)Google Scholar.

12. Loving v. Virginia, 388 U.S.1 (1967)Google Scholar. See also Moran, Rachel F., Interracial Intimacy: The Regulation of Race and Romance (Chicago: University of Chicago Press, 2001)Google Scholar; Romano, Renee C., Race Mixing: Black-White Marriage in Postwar America (Cambridge: Harvard University Press, 2003)Google Scholar; Pascoe, Peggy, “Miscegenation Law, Court Cases, and Ideologies of ‘Race' in Twentieth-Century America,” in Sex, Love, Race: Crossing Boundaries in North American History, ed. Hodes, Martha (New York: New York University Press, 1999), 464–90Google Scholar; Sickels, Robert J., Race, Marriage, and the Law (Albuquerque: University of New Mexico Press, 1972)Google Scholar; Wadlington, Walter, “The Loving Case: Virginia's Antimiscegenation Statute in Historical Perspective,” Virginia Law Review 52 (Oct. 1966): 1189–1223CrossRefGoogle Scholar; Wallenstein, Peter, “Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860s–1960s,” Chicago-Kent Law Review 70, no. 2 (1994): 371–437Google Scholar; Wallenstein, Peter, Tell the Court I Love My Wife: Race, Marriage, and Law—An American History (New York: Palgrave, 2002)Google Scholar. For a related case, see McGlaughlin v. Florida, 379 U.S.184 (1964)Google Scholar.

13. Eisenstadt v. Baird, 405 U.S.438 (1972)Google Scholar. See also Eskridge, and Hunter, , Sexuality, Gender, and the Law, 24–30Google Scholar; Garrow, , Liberty and Sexuality, 457, 473–599Google Scholar; Goldstein, , The Constitutional Rights of Women, 322–33Google Scholar.

14. Roe v. Wade, 410 U.S.113 (1973)Google Scholar. See also Eskridge, and Hunter, , Sexuality, Gender, and the Law, 30–36Google Scholar; Faux, Marian, Roe v. Wade: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal (New York: New American Library, 1988)Google Scholar; Garrow, , Liberty and Sexuality, 473–599Google Scholar; Goldstein, , The Constitutional Rights of Women, 334–59Google Scholar; McCorvey, Norma, with Meisler, Andy, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice (New York: HarperCollins, 1994)Google Scholar; Reagan, Leslie J., When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997), 216–45Google Scholar; Rubin, Eva R., The Abortion Controversy: A Documentary History (Westport, Conn.: Greenwood, 1994), 117–69Google Scholar; Weddington, Sarah, A Question of Choice (New York: Putnam's, 1992)Google Scholar; Woodward, and Armstrong, , The Brethren, 165–89, 229–40Google Scholar. For other abortion rulings in this period, see U.S. v. Vuitch, 402 U.S.62 (1971)Google Scholar; Doe v. Bolton, 410 U.S.179 (1973)Google Scholar.

15. Boutilier v. the Immigration and Naturalization Service, 387 U.S.118 (1967).Google ScholarBoutilier has attracted minimal attention by historians, but more by legal scholars. See Roberts, Maurice A., “Sex and the Immigration Laws,” San Diego Law Review 14 (1976): 9–41Google Scholar; Reynolds, William T., “The Immigration and Nationality Act and the Rights of Homosexual Aliens,” Journal of Homosexuality 5, nos. 1–2 (Fall 1979–Winter 1980): 79–87CrossRefGoogle ScholarPubMed; Bogatin, Marc, “The Immigration and Nationality Act and the Exclusion of Homosexual Aliens: Boutilier v. INS Revisited,” Cardozo Law Review 2, no. 2 (Winter 1981): 359–96Google Scholar; Hexter, Rachel A., “Immigration - Naturalization,” Suffolk Transnational Law Journal 6, no. 2 (Spring 1982): 383–94Google Scholar; Poznanski, Robert, “The Propriety of Denying Entry to Homosexual Aliens: Examining the Public Health Service's Authority over Medical Exclusions,” University of Michigan Journal of Law Reform 17 (Winter 1984): 331–59Google Scholar; Silvers, Samuel M., “The Exclusion and Expulsion of Homosexual Aliens,” Columbia Human Rights Law Review 15, no. 2 (Spring 1984): 295–332Google Scholar; Fowler, Peter N. and Graff, Leonard, “Gay Aliens and Immigration: Resolving the Conflict Between Hill and Longstaff,” University of Dayton Law Review (1985): 621–44Google Scholar; Girard, Philip, “From Subversion to Liberation: Homosexuals and the Immigration Act, 1952–1977,” Canadian Journal of Law and Society 2 (1987): 1–27CrossRefGoogle Scholar; Green, Richard, “‘Give Me Your Tired, Your Poor, Your Huddled Masses’ (of Heterosexuals): An Analysis of American and Canadian Immigration Policy,” Anglo-American Law Review 16 (1987): 139–59CrossRefGoogle Scholar; Eskridge, William N. Jr, “Gadamer/Statutory Interpretation,” Columbia Law Review 90 (Apr. 1990): 609–81CrossRefGoogle Scholar; Minter, Shannon, “Sodomy and Public Morality Offenses under U.S. Immigration Law: Penalizing Lesbian and Gay Identity,” Cornell International Law Journal 26 (1993): 771–817Google Scholar; Eskridge, William N. Jr, Dynamic Statutory Interpretation (Cambridge: Harvard University Press, 1994), 48–80Google Scholar; Foss, Robert J., “The Demise of the Homosexual Exclusion: New Possibilities for Gay and Lesbian Immigration,” Harvard Civil Rights-Civil Liberties Law Review 29, no. 2 (Spring 1994; dated Spring 1993 on the internet): 439–75Google Scholar; Eskridge, William N., “Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981,” Hofstra Law Review 25 (Spring 1997): 817–960Google Scholar; Eskridge, and Hunter, , Sexuality, Gender, and the Law, 175–89Google Scholar; Eskridge, William N. Jr, Gaylaw: Challenging the Apartheid of the Closet (Cambridge: Harvard University Press, 1999), 35–36, 69–70, 132–34, 383–84Google Scholar; Frank, Barney, “American Immigration Law: A Case Study in the Effective Use of the Political Process,” in Creating Change: Sexuality, Public Policy, and Civil Rights, ed. D'Emilio, John, Turner, William B., Vaid, Urvashi (New York: St. Martin's, 2000), 208–35Google Scholar; Murdoch, Joyce and Price, Deb, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York: Basic, 2001), 103–34Google Scholar. Helpful works by historians and ethnic studies scholars include Turner, William B., “Lesbian/Gay Rights and Immigration Policy: Lobbying to End the Medical Model,” Journal of Policy History 7, no. 2 (1995): 208–25CrossRefGoogle Scholar; Luibhéid, , Entry Denied, 77–101Google Scholar; Canaday, “‘Who Is A Homosexual?'” For related cases in this period, see Rosenberg v. Fleuti, 374 U.S.449 (1963)Google Scholar; INS v. Lavoie, 387 U.S.572 (1967)Google Scholar; Tovar v. INS, 388 U.S.915 (1967)Google Scholar.

16. See Allyn, David, Make Love, Not War: The Sexual Revolution, An Unfettered History (Boston: Little, Brown, 2000), 38, 55–70, 263–66Google Scholar; Bailey, Beth, Sex in the Heartland (Cambridge: Harvard University Press, 1999), 7, 15, 129–30, 182Google Scholar; Cott, Nancy F., Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000), 199–201, 210–16Google Scholar; D'Emilio, John and Freedman, Estelle, Intimate Matters: A History of Sexuality in America (New York: Harper and Row, 1988), 250, 277, 287–88, 315, 327, 350Google Scholar; White, Kevin, Sexual Liberation or Sexual Licence?: The American Revolt against Victorianism (Chicago: Ivan Dee, 2000), 137–41, 161, 176Google Scholar.

17. For an influential early contribution, see Grey, Thomas C., “Eros, Civilization and the Burger Court,” Law and Contemporary Problems 43, no. 3 (Summer 1980): 83–100CrossRefGoogle Scholar. For an insightful review of the literature, see David B. Cruz, “‘The Sexual Freedom Cases'? Contraception, Abortion, Abstinence, and the Constitution,” University of Southern California Law School Olin Working Paper No. 99–20, Feb. 2000. For a helpful recent work by a literary critic, see Nelson, Deborah, Pursuing Privacy in Cold War America (New York: Columbia University Press, 2002)Google Scholar.

18. When discussing gay, lesbian, and bisexual movements before the Stonewall riots of 1969, legal scholars generally rely on and cite D'Emilio, John, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940–1970 (Chicago: University of Chicago Press, 1983).Google ScholarSexual Politics is a groundbreaking work that remains the standard treatment of the homophile movement, but it is now more than two decades old and its conclusions have been supplemented and revised by a number of works, including Boyd, Nan Alamilla, Wide Open Town: A History of Queer San Francisco to 1965 (Berkeley: University of California Press, 2003)Google Scholar; Gay, and Lesbian Historical Society of Northern California, “MTF Transgender Activism in the Tenderloin and Beyond, 1966–1975,” GLQ 4:2 (1998): 349–72Google Scholar; Johnson, David K., The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004)Google Scholar; Meeker, Martin, “Behind the Mask of Respectability: Reconsidering the Mattachine Society and Male Homophile Practice, 1950s and 1960s,” Journal of the History of Sexuality 10, no. 1 (Jan. 2001): 78–116CrossRefGoogle Scholar; Meyerowitz, Joanne, How Sex Changed: A History of Trans-sexuality in the United States (Cambridge: Harvard University Press, 2002)Google Scholar; Stein, Marc, City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945–1972 (Chicago: University of Chicago Press, 2000)Google Scholar. For exceptional works by legal scholars that address pre-1970s social movements and reception, see Cain, Patricia A., Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (Boulder, Colo.: Westview, 2000)Google Scholar; de Grazia, Girls Lean Back Everywhere; Garrow, Liberty and Sexuality; Murdoch and Price, Courting Justice; Sickels, Race, Marriage, and the Law; Wallenstein, “Race, Marriage, and the Law of Freedom.” Grey also discusses reception. Note, however, that of these legal works only Courting Justice addresses Boutilier in any depth, and none explores Boutilier's social movement advocates.

19. As many scholars have noted, the Supreme Court has tended to assert itself in the realm of free speech but has proven very deferential to Congress on matters of immigration, in part because aliens do not have the same rights as citizens.

20. This is true of nearly all of the legal and literary works cited in notes 10–17, with the important exceptions of works by Eskridge, Hunter, and Murdoch and Price.

21. Boutilier is often regarded as a statutory case, though, as is discussed below, one of the main arguments challenged the Immigration and Nationality Act on the grounds that the law was unconstitutionally vague.

22. Bowers was widely criticized along these lines, as was Doe v. Commonwealth, 425 U.S. 901 (1976).

23. Popular beliefs are suggested in the tone of surprise conveyed in the articles cited in note 3.

24. Griswold, 485–86.

25. As various scholars have shown, this conception of marriage had roots in the rise of the bourgeois, male-dominated, white nuclear family in the eighteenth and nineteenth centuries. Moreover, while the model of the two-parent, child-centered family that practiced birth control had cross-class and cross-racial appeal in the United States, it was a model that middle-class whites had used historically to differentiate themselves from their perceived class and race inferiors. And insofar as rates of formal marriage were higher among middle-class whites than among other U.S. groups, the Court's affirmation of rights of privacy in marriage effectively granted new privileges to the country's dominant class and race. See Cott, Public Vows; D'Emilio and Freedman, Intimate Matters; Jones, Jacqueline, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (New York: Basic, 1985)Google Scholar; Lasch, Christopher, Haven in a Heartless World: The Familym Besieged (New York: Basic, 1977)Google Scholar; Rubin, Eva R., The Supreme Court and the American Family: Ideology and Issues (New York: Greenwood, 1986)Google Scholar.

26. Griswold, 495–99. Goldberg also cited a dissent by Louis Brandeis that had defended “‘the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.'” Griswold, 494. Along similar lines, Brennan wrote privately to Douglas as Douglas worked on his opinion: “It is plain that, in our civilization, the marital relationship above all else is endowed with privacy.” Brennan to Douglas, 24 Apr. 1965, Box 1347, William O. Douglas Papers, Library of Congress. The justices in Griswold repeatedly referred to the principles, traditions, and values of “our” civilization, “our” society, “our” people, and “our” institutions, implicitly invoking traditionally classed, gendered, and racialized beliefs about other civilizations, societies, peoples, and institutions. See also Poe v. Ullman, 367 U.S.497 (1961)Google Scholar; Bederman, Gail, Manliness and Civilization: A Cultural History of Gender and Race in the United States, 1880–1917 (Chicago: University of Chicago Press, 1995)CrossRefGoogle Scholar.

27. Griswold, 502, 505. Harlan and White concurred in the judgment but not in the opinion by Douglas. Under the strict scrutiny doctrine, White was more willing to entertain restrictions on marital rights, as long as statutes were “reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application.” Griswold, 504. See also Moynihan, Daniel Patrick, The Negro Family: The Case for National Action, in The Moynihan Report and the Politics of Controversy, ed. Rainwater, Lee and Yancey, William L. (Cambridge: MIT Press, 1967)Google Scholar. Moynihan, an assistant secretary of labor in the Johnson administration, argued that the most fundamental problem facing the Black community in the United States was the “tangle of pathology” produced by the community's low rates of long-term marriages and high rates of promiscuity, illegitimacy, and matriarchal, female-headed households. The literature on the Moynihan report is extensive. For a helpful recent contribution, see Feldstein, Ruth, Motherhood in Black and White: Race and Sex in American Liberalism, 1930–1965 (Ithaca: Cornell University Press, 2000), 139–64Google Scholar. Moynihan submitted his report to Johnson in March 1965; oral arguments in Griswold were heard on 29 March 1965; the Court's decision was announced on 7 June. On class, gender, race, and reproductive rights decisions, see Davis, Angela Y., Women, Race, and Class (New York: Random House, 1981), 202–21Google Scholar; Gordon, Linda, Woman's Body, Woman's Right: Birth Control in America, rev. ed. (1974; New York: Penguin, 1990), 116–58; 249–401Google Scholar; Kolbert, Kathryn and Miller, Andrea, “Legal Strategies for Abortion Rights in the Twenty-First Century,” in Abortion Wars: A Half Century of Struggle, 1950–2000, ed. Solinger, Rickie (Berkeley: University of California Press, 1998)Google Scholar; Roberts, Dorothy E., Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Random House, 1997), 56–103Google Scholar; Ross, Loretta J., “African-American Women and Abortion,” in Abortion Wars, 161–207Google Scholar.

28. Loving, 12. In support of this argument, Warren cited Skinner v. Oklahoma, 316 U.S. 535 (1942), 541, which had declared, “Marriage and procreation are fundamental to the very existence and survival of the race.” Skinner also affirmed “a right which is basic to the perpetuation of a race—the right to have offspring” (536).

29. Eisenstadt, 453.

30. Oral arguments of Joseph D. Tydings in Eisenstadt, 17 Nov. 1971; Eisenstadt, 464–65.

31. Roe, 152–53, 116, 154.

32. See Copelon, Rhonda, “From Privacy to Autonomy: The Conditions for Sexual and Reproductive Freedom,” in From Abortion to Reproductive Freedom: Transforming a Movement, ed. Fried, Marlene Gerber (Boston: South End, 1990), 27–43Google Scholar; Gordon, , Woman's Body, 410–12Google Scholar; Miller, Kolbert and, “Legal Strategies,” 95–99Google Scholar; McCann, Carole R., Birth Control Politics in the United States, 1916–1945 (Ithaca: Cornell University Press, 1994), 99–173Google Scholar.

33. One, Incorporated v. Oleson, 355 U.S.371 (1958)Google Scholar; Manual Enterprise v. Day, 370 U.S.478 (1962)Google Scholar; Fanny Hill, 383 U.S.413 (1966), 418Google Scholar; Mishkin, 383 U.S.502 (1966), 505, 508Google Scholar; Miller v. California, 413 U.S.15 (1973), 24Google Scholar. See also Landau, 388 U.S.456 (1967)Google Scholar.

34. See the sources on class, gender, and race that are cited in note 27.

35. On respectability, see Mosse, George L., Nationalism and Sexuality: Respectability and Abnormal Sexuality in Modern Europe (New York: Howard Fertig, 1985)Google Scholar; Higginbotham, Evelyn Brooks, Righteous Discontent: The Women's Movement in the Black Baptist Church, 1880–1920 (Cambridge: Harvard University Press, 1993), 185–229Google Scholar.

36. For especially helpful contributions, see Canaday, “‘Who Is a Homosexual?”; Luibhéid, Entry Denied.

37. See Act of 3 Mar. 1891, §1, 26 Stat. 1084; Immigration Act of 1917, §3, 39 Stat. 874; Immigration and Nationality Act of 1952, Public Law 82-414, §212(a)(4), 66 Stat. 163, 182, 8 U.S.C. 1182(a); Eskridge, , Gaylaw, 383–84Google Scholar; Canaday, “‘Who Is a Homosexual?”; Luibhéid, Entry Denied; Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962); Act of Oct. 3, 1965, Public Law No. 89–236, §15(b), 79 Stat. 911, 919, 8 U.S.C. Section 1182(a)(4). See also, in addition to the works cited in note 15, “Developments in the Law: Immigration and Nationality,” Harvard Law Review 66, no. 4 (Feb. 1953): 643–745CrossRefGoogle Scholar; “Limitations on Congressional Power to Deport Resident Aliens Excludable as Psychopaths at Time of Entry,” Yale Law Journal 68, no. 5 (Apr. 1959): 931–48CrossRefGoogle Scholar; Appleman, Irving, “That New Immigration Act,” American Bar Association Journal 52 (Aug. 1966): 717–20Google Scholar; Scully, Thomas J., “Is the Door Open Again?—A Survey of Our New Immigration Law,” UCLA Law Review 13 (1966): 227–49Google Scholar; Freedman, Estelle, “‘Uncontrolled Desires': The Response to the Sexual Psychopath, 1920–1960,” Journal of American History 74 (June 1987): 83–106CrossRefGoogle Scholar; Eskridge, William Jr, “Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880–1946,” Iowa Law Review 82 (May 1997), note 149Google Scholar; Terry, Jennifer, An American Obsession: Science, Medicine, and Homosexuality in Modern Society (Chicago: University of Chicago Press, 1999)CrossRefGoogle Scholar.

38. See the complete case record for Boutilier; the audiotape of the oral arguments before the Supreme Court at the National Archives; and Blanch Freedman's “George [sic] Boutilier” file in the American Committee for the Protection of the Foreign Born (ACPFB) Papers, Joseph A. Labadie Collection, University of Michigan, Ann Arbor, Michigan. According to these sources, Boutilier was born in Sheet Harbour, Nova Scotia, in 1933. Robert Brown was Boutilier's lawyer in the 1959 sodomy case; Boutilier spoke with Sarsfield in 1964 without a lawyer present; by 1965 Freedman was acting as his primary lawyer (with Brown's assistance).

39. Nicknamed “Pope Kaufman” because of his “authoritarian demeanor,” the judge was known to be a great admirer of Federal Bureau of Investigation (FBI) director J. Edgar Hoover, who played key roles in both Scares. According to Ronald Radosh and Joyce Milton, Kaufman “participated in highly improper ex parte communications with various individuals connected with the prosecution” of the Rosenbergs. They also note that the judge's involvement in the Rosenberg case may have frustrated his ambition to be appointed to the Supreme Court (and delayed his appointment to the Court of Appeals until 1961). Radosh, Ronald and Milton, Joyce, The Rosenberg File: A Search for the Truth (New York: Holt, Rinehart and Winston, 1983), 277, 287–89. See also 276–90, 411–12, 428–31, 533, 571–72Google Scholar; D'Emilio, , Sexual Politics, 40–53Google Scholar; Johnson, The Lavender Scare; Meeropol, Robert and Meeropol, Michael, We Are Your Sons: The Legacy of Ethel and Julius Rosenberg, 2d ed. (1975; Urbana: University of Illinois Press, 1986), 370–83Google Scholar; Murphy, Bruce Allen, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (New York: Oxford University Press, 1982), 330–38Google Scholar. I thank Henry Abelove for first calling my attention to Kaufman's connection to the Rosenberg case.

40. On Agrin, see Radosh and Milton, The Rosenberg File, 191, 319, 343, 385, 402, 414–15, 422, 535–36; Meeropol and Meeropol, We Are Your Sons, 265, 270, 286. Members of Freedman's family (including Allen Young, Michael Freedman, Paul Laven, and Anne Laven) and Michael Meeropol supplied some of the biographical information in correspondence, 22 Mar.–18 Apr. 2001. See also “Administration, Legal Counsel: Freedman, Blanch, 1955” File, ACPFB Papers; Civil Liberties Docket, Oct. 1955 to Jul. 1957; NYT, 27 Jan. 1938, 23; 2 Feb. 1941, D4; 8 Oct. 1943, 16; 24 Apr. 1945, 20; 8 May 1945, 33; 13 Jun. 1945, 39; 21 Oct. 1947, 2; 7 Jun. 1949, 3; 24 Aug. 1949, 15; 23 Jan. 1952, 27; 11 Aug. 1954, 16; 1 Feb. 1955, 12; 20 Oct. 1955, 14; 25 Oct. 1955, 19; 2 Mar. 1957, 22; 9 Oct. 1957, 8; 17 Apr. 1967, 37. According to family members, Freedman was born in 1908 and was the only woman in her class at Saint John's University Law School. The ACPFB, founded in 1933 and dissolved in 1982, assisted a variety of leftist unions, organizations, and individuals. The Subversive Activities Control Board listed the ACPFB as a subversive organization in the 1950s.

41. The texts used in debating legislative intent included congressional reports and PHS submissions. See, for example, S. 1515, 81st Cong., 2d Sess., 345 (1950); S. 3455, 81st Cong., 2d Sess., §212(a) (1950); S. 716, 82d Cong., 1st Sess., §212(a) (1951); H.R. 2379, 82d Cong., 1st Sess. §212(a) (1951). In 1952, on the advice of the PHS, the Senate Judiciary Committee concluded that the term “psychopathic personality” was “sufficiently broad to provide for the exclusion of homosexuals and sex perverts.” The Senate report made clear that this “is not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates.” See S. Rep. No. 1137, 82d Cong., 2d Sess., 9 (1952). House reports contained similar references. See H.R. 2379, 82d Cong., 1st Sess., §212(a) (1951); H.R. Rep. No. 1365, 82d Cong., 2d Sess., 45–56 (1952). The latter, for example, accepted the PHS's recommendation that the term “psychopathic personality” be used to “specify such types of pathologic behavior as homosexuality or sexual perversion.” Legislative reports from 1965, when Congress excluded “sexual deviates,” were also cited in this debate. See S. Rep. No. 748, 89/90th Cong., 1st Sess. 18–19 (1965); H.R. Rep. No. 745, 89/90th Cong., 1st Sess., 16 (1965).

42. This question was part of a larger debate about the scope and limits of scientific and medical authority in twentieth-century politics and law. See Bayer, Ronald, Homosexuality and American Psychiatry: The Politics of Diagnosis (New York: Basic, 1981)Google Scholar; Lunbeck, Elizabeth, The Psychiatric Persuasion: Knowledge, Gender, and Power in Modern America (Princeton: Princeton University Press, 1994)Google Scholar; Rothman, David J., Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic, 1991)Google Scholar.

43. Some of the information obtained by Sarsfield is at odds with information recorded in Dr. Ullman's letter and the information included in the affidavit that Boutilier signed before INS officer Ceil Brathwaite on 9 Sep. 1963, Boutilier file, ACPFB Papers.

44. Boutilier v. Immigration and Naturalization Service, 363 F.2d 488, 496–98 (2nd Cir. 1966). Moore did offer these citations, writing at one point that “When so many efforts… are being made to discover how the human race can become adjusted to doing what should come naturally, cf. Berlin, Annie Get Your Gun 21 (1947), it must be realized that sexual gratification is often achieved in divers ways which may well deviate from popular conceptions of a norm” (499).

45. Boutilier, 363 F.2d 488, 489–90, 495.

46. Ibid., 496–98.

47. Ibid., 496, 499.

48. While Marshall's signature does not prove that he wrote the briefs, it justifies attributing the brief to him.

49. In addition to the HLRS brief, see HLRS press release, 12 Jan. 1967; correspondence, 17–18 Nov. 1966, Boutilier file, ACPFB Papers.

50. On Boutilier and syphilis, see notes in Freedman's Boutilier file, ACPFB Papers.

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56. See Brennan notes, 17 and 27 Mar. 1967, Boxes 144–45, Brennan Papers; Douglas notes, 17 Mar. 1967, Boxes 1373 and 1391, Douglas Papers; Warren notes, 17 Mar. 1967, Box 382, Earl Warren Papers, Library of Congress. See also Murdoch and Price, Courting Justice, 112–17.

57. Boutilier, 120–24. See Chae Chan Ping. v. United States, 130 U.S.581 (1889)Google Scholar. On race as a metalanguage, see Higginbotham, Evelyn Brooks, “African-American Women's History and the Metalanguage of Race,” Signs 17 (Winter 1992): 251–74CrossRefGoogle Scholar; Somerville, Siobhan B., Queering the Color Line: Race and the Invention of Homosexuality in American Culture (Durham: Duke University Press, 2000)Google Scholar.

58. Boutilier, 125, 129, 135.

59. Ibid., 127–28.

60. Ibid., 132–34.

61. This point was raised in Drum, no. 25 (Aug. 1967), 25. Drum is discussed below.

62. Kalman, , Abe Fortas, 196Google Scholar. See also 42–45, 194–96, 261–66, 320, 342–44; Murdoch, and Price, , Courting Justice, 107–10Google Scholar; Murphy, , Fortas, 195–200Google Scholar, 478–89, 507–9; Shogan, , A Question of Judgement, 3–10, 40, 101–2, 170–78Google Scholar.

63. Two FBI documents, dated 20 and 24 Jul. 1967, are included in J. J. Maloney, “Was Abe Fortas Gay?” Crime Magazine: An Encylopedia of Crime, available at http://www.crimemagazine.com/Corruption/abe.htm. Braudy, Susan, in Family Circle: The Boudins and the Aristocracy of the Left (New York: Knopf, 2003), 331Google Scholar, writes (citing the FBI file on Fortas), “In fact, Fortas resigned because of J. Edgar Hoover's threat of blackmail: an FBI agent had visited Fortas in 1968 to inform him of Hoover's ‘concern' that Fortas had been seen at a homosexual bar.” Laura Kalman, in Abe Fortas, 375, writes (citing the papers of journalist Fred Graham), “Graham and [William] Lambert were told, presumably by sources within the government who offered to ‘bootleg' the information ‘out of the FBI,' that the FBI had a morals file on Fortas that included allegations he had once been involved in a sexual relationship with a teenage boy.” I thank Kalman for first calling my attention to these sources.

64. See the works cited in note 15. The absence of research in this area has led at least one scholar to speculate (incorrectly) that the HLRS “may have been formed primarily to file a brief in this case.” See Leonard, Arthur, Sexuality and the Law: An Encyclopedia of Major Legal Cases (New York: Garland, 1993), 644Google Scholar.

65. On the ACLU, see D'Emilio, , Sexual Politics, 47–48, 112, 117, 155–57, 178, 194, 200–201, 206–7, 211–4Google Scholar; Bullough, Vern, “Lesbianism, Homosexuality, and the American Civil Liberties Union,” Journal of Homosexuality 13 (Fall 1986): 23–33CrossRefGoogle ScholarPubMed; Stein, , City of Sisterly and Brotherly Loves, 100–101, 160, 183–84, 197, 209–10, 251, 276–82, 384Google Scholar; Murdoch, and Price, , Courting Justice, 31, 39, 61–62, 168, 191Google Scholar; Cain, , Rainbow Rights, 56–57, 67–69Google Scholar; Boyd, , Wide-Open Town, 141, 217–18, 225Google Scholar; Johnson, , The Lavender Scare, 186–92, 202–7Google Scholar. The ACLU/NYCLU brief was authored by David Carliner, Burt Neuborne, Nanette Dembitz, and Alan Levine. On the Janus Society and HLRS, see Stein, , City of Sisterly and Brotherly Loves, 200–86Google Scholar.

66. See the works on the homophile movement cited in note 18. I discuss this in greater depth in City of Sisterly and Brotherly Loves.

67. Janus Society Newsletter (JSN), Oct. 1963, 1–2; Wall Street Journal, 17 Jul. 1968, 1, 22; 1964 East Coast Homophile Organizations (ECHO) 1964 Conference Program, 14, ECHO Papers (ECHOP), Gay, Lesbian, Bisexual, and Transgendered Archives of Philadelphia, William Way Community Center, Philadelphia, Penn.; JSN, Feb. 1965, 2.

68. See, for example, Eastern Mattachine Magazine, Nov.–Dec. 1965, 19–20; Joan Frazer [Joan Fleischmann] (for ECHO) to Clark Polak, c. Feb. 1965, ECHOP.

69. Clark Polak, “The Homophile Puzzle, Part One,” Drum, Dec. 1965, 14–15; JSN, Sep. 1966, 1–2; JSN, Jan. 1965, 2.

70. ECHO Minutes, 5 Dec. 1964, ECHOP; Clark Polak, “The Failure,” Drum, Sep. 1965, 4; Polak to Dick Leitsch, 29 Nov. 1965, Box 5, Folder 2, Mattachine Society Records (MSR), International Gay Information Center Archives, Rare Books and Manuscripts Division, New York Public Library, New York, NY; Drum, nos. 18–19, 1966, 52.

71. Drum, no. 24 (Mar. 1967), 6. See also One Eleven Wines and Liquors, Inc. v. Division of Alcoholic Beverage Control, 235 A. 2d 12 (N.J. 1967). Val's was consolidated with this case.

72. Correspondence, 17–18 Nov. 1966, Boutilier file, ACPFB Papers.

73. Author correspondence with Paul and Anne Laven; Freedman to Polak, 10 Jan. 1967, Boutilier file, ACPFB Papers. See also correspondence, 22 Jul.–18 Nov. 1966, Boutilier file, ACPFB Papers; correspondence, 1966–67, Box 1, Folders 1, 12, 14, and 15, MSR; JSN, Dec. 1966, 2.

74. Boutilier file, ACPFB Papers. See also Wall Street Journal, 17 July 1968, 1, 23Google Scholar; Mattachine Society of New York Newsletter, Dec. 1966, 2Google Scholar; Mattachine New York to homophile organizations, c. 1966, Phyllis Lyon/Del Martin Papers, Box 19, Folder 32, Gay, Lesbian, Bisexual, and Transgender Historical Society, San Francisco, Calif. Philadelphia lesbian activist Joan Fleischmann identifies Gilbert Cantor as a straight lawyer who was committed to civil rights and whom she dated. Author interview with Fleischmann, 31 May 1994. Cantor was actively involved in the homophile movement in the 1960s. See Stein, , City of Sisterly and Brotherly Loves, 251, 256, 300Google Scholar. The National Legal Defense Fund was proposed at the National Planning Conference of Homophile Organizations in 1966 and was established the following year. See Ladder, June 1967, 25–26Google Scholar; Ladder, Jan. 1968, 21–27Google Scholar; NLDF file, NACHO file, ONE Institute and Archives, Los Angeles, Calif.; NLDF proposal, brochure, and articles of incorporation, c. 1966–67, Lyon/Martin Papers, Box 18, Folder 17; Box 20, Folder 7; correspondence, 2–27 Mar. 1967, Boutilier file, ACPFB Papers.

75. Kameny to Freedman, 9 Feb. 1967, Boutilier file, ACPFB Papers.

76. Freedman to Polak, 18 Jan. 1967, Boutilier file, ACPFB Papers; Drum, no. 24 (1967), 3, 10.

77. JSN, no. 24 (1967), 2; Drum, no. 25 (Aug. 1967), 25; NYT, 24 May 1967; HLRS press release, 23 May 1967, Boutilier file, ACPFB Papers. See also Polak to David Freedman, 9 Jun. 1967, Boutilier file, ACPFB Papers; Sexology, Jan. 1968, 387–88; Murdoch and Price, Courting Justice, 134. The answer to Stewart's question can be found in a memorandum by INS General Counsel Charles Gordon to Marshall, 15 Mar. 1967, Boutilier file, ACPFB Papers. While this letter references examples of the phrase “psychopathic personality” being used in non-sexual deviation cases, they all appear to be from the period after the 1965 immigration law was passed.

78. Author correspondence with Paul and Anne Laven. See also NYT, 17 Apr. 1967, 37; Polak to Freedman, 22 May 1967, Boutilier file, ACPFB Papers. Freedman was sent a telegram announcing the Court's decision on 22 May 1967. See Boutilier file, ACPFB Papers.

79. U.S. Citizenship and Immigration Services records for Clive Michael Boutilier; author correspondence with Boutilier's niece, 14 Mar. 2001; Marc Stein, “Forgetting and Remembering a Deported Alien,” History News Network, 3 November 2003, http://hnn.us/articles/1769.html. I thank Marian L. Smith of U.S. Citizenship and Immigration Services for supplying me with the date of Boutilier's deportation.

80. In 1979, U.S. Surgeon General Julius Richmond announced that the PHS would no longer provide the required medical certifications for excluding homosexual immigrants solely on the basis of their homosexuality. The INS at first responded by trying unsuccessfully to use the “moral turpitude” clause that remained on the books. Then the INS tried with mixed success to enforce the “psychopathic personality” clause without reliance on PHS certifications. In 1984, the INS began using new procedures that excluded aliens who were identified as “homosexual” by a third party arriving at the same time and aliens who offered “unsolicited, unambiguous oral or written admission of homosexuality and repeat that admission in a second interview.” This practice lasted until 1990, when the PHS was forced by George Bush's administration to begin enforcing the 1965 Act's provisions shortly before the Sixth International Conference on AIDS in San Francisco. Later that year, after nearly one hundred AIDS service and research organizations boycotted the conference in response, the Immigration Act of 1990 removed the references to “sexual deviation” and “psychopathic personality” but added provisions that allowed the exclusion of people with HIV and/or AIDS. See note 15; Immigration Act of 1990, PL 101–649, 104 Stat. 4978.

81. Miller v. California, 413 U.S. 15, 33 (1973).

82. Lawrence.