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2. U.S. Federal Courts and Gay Rights: A History of Hesitancy
- Temple University Press
- Chapter
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2 U.S. Federal Courts and Gay Rights A History of Hesitancy THE ACTIVITY OF the U.S. Supreme Court and other federal courts demonstrates the influence of political culture on courts, in that even they are often unable to transcend the barriers of a dominant political discourse. The Supreme Court has been generally unwilling to view gay rights claims in a way that extends beyond a negative conception of freedom and rights (and has not even been willing to apply this negative conception in some cases) and has been, until quite recently, reluctant to offer a robust defense of gay rights claims. Indeed, extreme discomfort with gay rights claims, often tending toward animus, typifies the approach of the Court for most of the twentieth century.1 One of the earliest gay rights cases in the Supreme Court, ONE v. Olesen, turned out favorably for gay rights claims, but not because of increasing legal support for gay rights claims. Rather, the result was reflective of the Court’s increasing freedom of expression-protective obscenity jurisprudence. In the 1950s, the Los Angeles postmaster seized and refused to deliver copies of a magazine about homosexuality, claiming it to be obscene under federal and state obscenity laws. The magazine was not pornographic in nature, it merely included letters, articles, and stories that dealt frankly with homosexuality. The editors of ONE challenged the postmaster’s decision, but, agreeing with the postmaster, a federal district judge rebuffed their challenge, and the Ninth Circuit Court of Appeals upheld this ruling. Interestingly, the editors reached out to the American Civil Liberties Union (ACLU) for assistance but were denied support.2 In finding the magazine obscene, the Ninth Circuit characterized the depiction of a lesbian relationship in one of the magazine’s stories as “nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view.”3 The magazine might be fine for homosexuals, the judges reasoned, but this was not constitutionally sufficient: “An article may be vulgar, offensive and indecent even though not regarded as such by a particular group of individuals constituting a small segment of the population because their own social or moral standards are far below those of the general community.”4 This language is not surprising, given the political climate surrounding sexual minorities in the 1950s (indeed, the federal government was waging a campaign against sexual minorities),5 but it was out of step with evolving First Amendment jurisprudence. A year before, the Supreme Court ruled in Roth v. United States that material bearing some relationship to social, political, or literary speech was immune from obscenity classifications and thus protected by the First Amendment.6 22 CHAPTER 2 Consequently, when ONE was appealed to the Supreme Court, the Court overturned the Ninth Circuit decision in a one-sentence per curiam opinion that used Roth as an authority.7 The decision was clearly not, in the justices’ minds, a gay rights case. In fact, the Court considered cert petitions from nudist magazines at the same time that it considered granting cert in ONE.8 This reflected the Court’s obscenity jurisprudence, a jurisprudence that was broadening the notion of freedom of expression, and its desire to police the boundaries of obscenity law. In this instance, then, gay rights claims were a beneficiary of the dominance of negative notions of freedom, not an affirmation of the legal status of sexual minorities. This dynamic is also apparent in another gay-linked obscenity case, Manual Enterprises Inc. v. Day,9 which ruled on another postmaster seizure of a gay magazine , in this case a “beefcake” magazine. Although some in the majority saw the case in terms of the proper extent of administrative discretion, the majority opinion by Justice John M. Harlan found that the nude male photographs in the magazine were not obscene under the Roth standard.10 Again, negative freedom protected the distasteful material. Indeed, Harlan described the magazines as “dismally unpleasant , uncouth, tawdry.”11 In fairness, the justices were prudish when it came to any kind of pornography, gay or straight, but there was a clear finding in the decision that gay men were not “normal.” Harlan described the magazines as “read almost entirely by homosexuals, and possibly a few adolescent males; the normal male adult would not normally buy them.”12 Although, as will be discussed in Chapter 5, legal elites...