The disability rights movement and the struggle for the rights of homosexuals have more in common than the fact that both emerged in the 1970s.1 One similarity is revealed by a metaphor used earlier: “Society has isolated the disabled by keeping them in the attic instead of the closet.”2 Both groups have been excluded from community life, and among the factors that keep them isolated are ignorance, fear, and prejudice.
But the limits, and the dangers, of this comparison become clear when we look at some of the uses to which it has been put. The first set of regulations proposed by HEW to implement the 1973 Rehabilitation Act included homosexuality among the handicaps covered by the law.3 This is the sort of labeling gay activists fight against, and with good reason. To include homosexuals among the handicapped is to say that there is something wrong with them, to imply that homosexuality is like blindness, alcoholism, or drug addiction.
That is what society has traditionally believed about homosexuality. Whether it is called evil or sick, it has been considered wrong. Since colonial times, homosexual activities have been crimes in this country; in some places they still are. For many years, the psychotherapeutic profession viewed homosexuality as a disorder. The American Psychiatric Association so classified it until 1973; the group’s decision to declassify it met strong internal opposition.4
Since homosexuality has been labeled criminal, sick, or both, homosexuals have been forced to do something that few minority group members can do: to conceal their difference and thus to hide part of their identities from the rest of society. It is primarily neglect that has kept the disabled in the attic. Social attitudes have helped (and have, of course, contributed to the neglect), but they have not been the major cause. For homosexuals, the situation has been just the opposite. There is no reason to believe that homosexuality itself would ever have kept anyone from full participation in society. The literature and the cases leave the impression that there need never have been a problem, that society created one for itself. Replacing the old labels with a new one, “handicapped,” would be not a solution to the problem, but another manifestation of it.
These statements may seem large, but, as I shall argue, they are in fact narrow and cautious. One factor that makes them seem bold and provocative is the backlash to the American gay rights movement. We have been told that homosexuals are bad, sick, or defective; that they are a threat to family life; that they will corrupt the young; and that their integration into our society may destroy it. These opinions are held and expressed with such passion that they draw much attention. To claim that we lack reliable evidence that homosexuals endanger society or require its help seems to be an extravagant assertion when in fact it is only a negative one.
The fact is that we know relatively little about homosexuality. Anecdotes, rumors, and theories abound, but knowledge is scant. One reason for this ignorance is that homosexuality has been hidden. While the current gay rights slogan, “We are everywhere,” may be an accurate statement, the idea startles most heterosexuals. People whom society stigmatizes are unlikely to be forthcoming with information, especially about the very characteristic for which they are branded.
But that is not the whole story. Another reason we have little reliable information (i.e., knowledge that can be tested rigorously) about homosexuality is that we have little reliable information about sexuality in general. Perhaps this ignorance is inevitable. Not only is sex research a young science—Alfred Kinsey and his associates, working thirty-five years ago, were pioneers—but sex is not a subject that invites careful, disciplined research and calm, detached thought. Even when scientists do study sexual behavior in this way, their findings rarely meet with the rational, disinterested response that is necessary for further advances in knowledge.
Whatever the sources of this ignorance, its result is that the only kind of statement that can fairly be made about homosexuality is the kind I made earlier: that evidence is lacking. If no one can assert categorically that homosexuality is a disorder, neither can anyone assert the contrary. But it is not clear why that should matter. Proof of mental health or moral rectitude has rarely been a condition of exercising individual rights. Questions about the nature of homosexuality should be separated from questions about law and public policy.
This argument has been made by writers who are far from complete agreement with gay activists. William Safire, for example, wrote in 1974 that although in his view homosexuality is abnormal and should be discouraged, we should not try to coerce or restrict homosexuals in any way: “If society does not like what it sees, society should remove its eye from the keyhole.” Similarly, a Roman Catholic theologian criticized those who reason from “the obvious: Homosexuality is a poor substitute for heterosexuality in that it cannot produce offspring” to “the astounding … [that] homosexuality is an illness, a sin, a crime.”5 So even these writers do not conclude that the law must be restrictive.
Anyone who tries to write sensibly about this issue confronts conceptual as well as empirical problems. All the talk about whether homosexuality is a sickness, whether it is evil, or whether it harms society uses some imprecise and inexact concepts. The controversy over whether homosexuality should be termed a handicap is a case in point. As early as 1905, Sigmund Freud observed that “inversion is found in people who exhibit no other serious deviations from the normal,”6 and while this is still true, inversion is also found in people who do, and some of Freud’s successors have seen what they wanted to see. The HEW regulations on Section 504 define “handicap” as “a condition … limiting one or more major life functions.” If one defines heterosexual intercourse and/or reproduction among the major life functions, what happens?
This confusion is mild compared to what we confront in discussions of the effect homosexuality has on society. This excerpt from a law review article is typical:
The state concern, in our view, should not be minimized… . Family life has been a central unifying experience throughout American society. Preserving the strength of this basic, organic unit is a central and legitimate end of the police power. The state ought to be concerned that if allegiance to traditional family arrangements declines, society as a whole may well suffer… . The question … is a difficult one: should the state be constitutionally required to abandon an ancient sanction, when abandonment might in time lead to increasing, though statistically unpredictable, defections from heterosexual behavior and traditional family life?7
This passage recalls the famous law-and-morals controversy that engaged jurists in the years following the publication of the Wolfenden Report, an event whose effects on English jurisprudence were comparable to those of Brown v. Board of Education in the United States. In 1957 a Committee on Homosexual Offences and Prostitution, chaired by Lord Wolfenden, recommended to the government “that homosexual behavior between consenting adults in private should no longer be a criminal offence.” The report’s underlying philosophy was diametrically opposed to the passage just cited. The function of the criminal law, it declared,
is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others … . Unless a deliberate attempt is to be made by society, acting through the agency of law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.8
The recommendations did not become law until 1966. Meanwhile, scholars debated the issues. The principal antagonists were Lord Devlin, a former high court judge, who opposed the reforms, and H. L. A. Hart, professor of jurisprudence at Oxford, who supported them. For Devlin,
what makes a society of any sort is a community of ideas, not only political ideas but also ideas about the ways its members should behave and govern their lives; the latter ideas are its morals… . The structure of every society is made up of both politics and morals. Take, for example, the institution of marriage. Whether a man should be allowed to take more than one wife is something about which every society has to make up its mind one way or another. In England we believe in the Christian idea of marriage and therefore adopt monogamy as a moral principle. Consequently the Christian institution of marriage has become the basis of family life and so part of the structure of our society. It is there not because it is Christian. It has got there because it is Christian, but it remains there because it is built into the house in which we live, and could not be removed without bringing it down.9
Devlin presents a general thesis, of which the law review article is a particular version. Devlin asserts that shared morals are crucial to any society; he is not concerned with what those morals are.10 The article insists that our political community of ideas includes a commitment to family life, and that weakening this commitment would harm our society.
Now, what does all this mean? If these writers are claiming that neither England nor America can survive unless monogamous marriage and family life are the norm, they are guilty of gratuitous speculation. H. L. A. Hart likens this view to the emperor Justinian’s belief that homosexuality caused earthquakes. He adds, “There is … no evidence to support, and much to refute, the theory that those who deviate from conventional sexual morality are in other ways hostile to society.”11
But anyone who is familiar with this debate will suspect that that is not the authors’ meaning. Whether, and to what extent, society depends on the family is not so much an empirical question as an analytical one. Hart speaks to this point. Lord Devlin, he writes,
appears to move from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is at any given moment of its history, so that a change in its morality is tantamount to the destruction of society. The former proposition might be even accepted as a necessary rather than an empirical truth depending on a quite plausible definition of a society as a body of men who hold certain moral views in common. But the latter proposition is absurd. Taken strictly, it would prevent us saying that the morality of a given society had changed, and would compel us instead to say that one society had disappeared and another one taken its place. But it is only on this absurd criterion of what it is for the same society to continue to exist that it could be asserted without evidence that any deviation from a society’s shared morality threatens its existence.12
The family is viewed as a large part of what society is, and if the family were to change or be replaced, society would be changed. If that is true, to say that society depends on the family is tautology. I think it is true beyond question that a society where homosexuality was accepted behavior, in which the estimated 10 percent were openly gay, would be significantly different from the society in which we now live. Homosexuals would be as visible to the general population as blacks now are to the white majority. Since that integration occurred within the lifetimes of most of us, we know how great a change it was. If the same thing happens with homosexuals, society will have changed, but it will not necessarily have suffered. That line of argument gives no justification for prohibiting or discouraging activity that may lead to social change. Once we clarify just what we are talking about here, the substance of Devlin’s argument turns out to be negligible.
All this debate over law and morals may seem obsolescent now. Homosexual relations between consenting adults are no longer criminal in England, while in the United States the Supreme Court read the substance of Lord Wolfenden’s theory into the Constitution and then used it to legalize abortion.13 On the surface, Wolfenden and Hart seem to have won, and jurisprudence has gone on to other controversies. For the United States, at least, these impressions are incorrect. The quoted article was written in 1977, long after Devlin and Hart had retired from the debate. And homosexual activity is still the law’s business. It has not been included within the “zone of privacy” that protects heterosexual activity and its consequences. The Supreme Court has refused even to consider this question. In 1976, in an action that Gerald Gunther called “irresponsible” and “lawless,” the Court let stand two state laws forbidding private, consensual sodomy.14 Far from being a dead issue, legal enforcement of sexual morality is flourishing.
Even where private sexual conduct is not regulated by law, and in the rather larger number of states where the laws are not enforced, homosexuals are singled out for other kinds of unequal treatment. These discriminatory actions are many and varied, but, in addition to laws against homosexual conduct, two such actions raise major constitutional questions: restrictions on rights of association and discrimination in employment.
I have argued that the claims for compensatory discrimination and equal treatment of the young, the aged, and the handicapped fall outside established constitutional categories, and that recognition of these claims requires a fundamental, though legitimate, reinterpretation along the lines I have suggested. With respect to sexual orientation, I doubt that such reinterpretation is needed. The real problem is that the traditional doctrines are being misused. Homosexuals are denied fundamental rights that all other citizens have; they receive unequal treatment on grounds that would be illegitimate for anyone else. The usefulness of the new interpretation is that it would make the abuse easier to recognize and harder to justify.
The right of association has been held to be inseparable from and integral to First Amendment freedoms of expression.15 Yet whether or not gay activists are allowed to organize on a state university campus depends on the judicial district in which they happen to be. Three cases have established a right of privacy, derived from several provisions of the Bill of Rights, which protects private consensual heterosexual relations from state interference.16 The courts have refused, on nonexistent grounds, to extend this right to homosexuals. Employment presents a more difficult problem because a job is not considered a fundamental right, but even here discrimination must satisfy equal-protection tests. If sexual orientation were a suspect classification, such laws could not stand.
Are homosexuals an isolated minority, saddled with disabilities? To an extent, they obviously are, but even recognized homosexuals have enjoyed the basic political rights long denied to blacks and women and still denied to children. Individual homosexuals, perhaps many of them, have gained power and influence. We do not know how many or how much because homosexuality has been hidden. The “closet” phenomenon complicates the whole subject. Perhaps this fact itself shows that homosexuals have been stigmatized.17 At present, homosexuality is a stigma in the sense defined in Chapter 6. If laws affecting homosexuals stigmatize in Brennan’s sense of being premised on inferiority or enacting hatred and separation, they are invalid according to the test. But that was a minority opinion, and stigmas are not among Justice Powell’s traditional indicia of suspectness.
How does the alternative doctrine of suspect classification, that of Brennan in Frontiero, apply to homosexuals? There is expert opinion that sexual orientation is indeed an immutable characteristic, whether or not it is determined at birth.18 But these are the sorts of theories that one contrary case suffices to weaken, if not to refute, and there have always been enough reports of counterexamples to call this opinion into question.19 There is even reason to doubt that all people are exclusively either homosexual or heterosexual. After all, Plato’s Dialogues present men who had male lovers and were also husbands and fathers; and at present there are enough lesbians who are mothers to suggest that sexual orientation may be neither constant nor absolute. To make things still more confusing, there is the theory advanced by Sigmund Freud, and widely accepted, that all people go through a homosexual stage as their sexual identity develops.20 These are questions to which no definite answer is possible.
But, as Chapter 6 showed, even to write in this way raises still thornier problems. I argued there that to say that race is something a person “cannot help,” which is what the “immutable characteristics” thesis amounts to, has different connotations for racial minorities than for the white majority. The statement that X cannot help being black does not startle, but the statement that Y cannot help being white does. When either is compared to equivalent statements about other groups, something strikes us as wrong. To say that Z cannot help being disabled makes sense. But is it quite the same thing to make this sort of statement about X’s blackness or A’s femaleness or B’s homosexuality? An undertone of “poor thing” is barely discernible. Do these statements not imply that these are things a person would change if she could? Are we comfortable with that implication?
Chapter 8 has already questioned the relationship between this component of the Frontiero test and the second: the lack of relationship between characteristic and ability. That segment of the test would usually provide a strong argument for the rights of homosexuals. With some apparent exceptions, which I shall examine, the relationship is not present. But if the first half of the rule is useless, the second cannot help much. It is time now to turn to the cases themselves.
By tradition, though not by Constitution, sexual morality has been the concern of the states. As part of their police power, states have often prescribed in minute detail who may not do what, with which, and to whom. Some states forbade any sexual relations except between spouses, and some went so far as to restrict spouses’ choices of activity. These laws were rarely enforced, but often the threat of exposure and sanction has been very real. It forced many people into a half-ghettoized existence. Many such laws have been repealed or modified, some have been invalidated by courts, and arrests and prosecutions are even less frequent than they once were, but the state has not ceased to be involved with our intimate lives.
Such interference was a common topic for discussion in the 1960s and 1970s. That discussion often borrowed a phrase from the Wolfen-den report to delimit what are conceded to be the legitimate areas of state concern. The phrase “in private between consenting adults” refers to activity considered to be beyond the state’s power, but, by exclusion, it also includes. Even the most permissive recognize the government’s power to protect the public from unwelcome displays, to prevent coercion, and to safeguard the young and vulnerable. The Wolfenden Report reflected a growing consensus that sexual behavior outside that realm was a matter for individual rather than governmental choice, and since that time ever larger numbers of people have come to agree.
The Supreme Court came close to, but has shied away from, giving these principles constitutional status. In 1965 it ruled that the Constitution established a right of privacy. Griswold v. Connecticut was far more important for this general principle than for its specific ruling. It overturned a statute prohibiting the use of contraceptives. With the limited exceptions of clinics and vending machines, the law had rarely been enforced. The Court used this issue to recognize a right established by “penumbras, formed by emanations” from the Bill of Rights.
Various guarantees create zones of privacy. The right of association contained in the First Amendment is one… . The Third Amendment in its prohibition against the quartering of soldiers … is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its SelfIncrimination Clause enables the citizen to create a zone of privacy which the government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
… We have had many controversies over these penumbral rights of privacy and repose… . These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.
… We deal with a right of privacy older than the Bill of Rights … . Marriage … is an association for as noble a purpose as any involved in our prior decisions.21
Few were prepared to dispute the Court about the use of contraceptives by married couples. But no one was sure what other interests would fall within that zone. Eisenstadt v. Baird effectively granted similar freedom to the unmarried. “If the right of privacy means anything, it is the right of the individual, whether married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”22 Then, in 1973, the Court ruled that this right included a limited right to an elective abortion.
In a line of decisions … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution… . These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty” are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.
This right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.23
Roe v. Wade provoked an angry controversy that increasingly threatens to dominate American politics. That in itself is no criticism of the decision; after all, the same could have been said of Brown. But it is hard to agree that the abortion question is quite so simple as the Court found it. To put it mildly, the opinion could have been better reasoned. So could the Griswold opinion, on which it relies.
But an argument that homosexual conduct lies within the zone of privacy does not need to defend legalized abortion. And whether or not the privacy cases were rightly decided, they are binding precedents, and judges must either follow them, distinguish them, or reject them. In the instant case, a federal district court made a poor effort at the second of these tasks. The Supreme Court shirked all three of them.
The pseudonymous plaintiff in Doe v. Commonwealth’s Attorney, a male homosexual, sought a declaratory judgment against Virginia’s sodomy law, which made it a felony, punishable by one to three years’ imprisonment, to “carnally know, in any matter … any brute animal … or any male or female person by the anus or by or with the mouth.” Doe argued that the law was unconstitutional as applied to his private, consensual relationships with other men. His claim was brushed aside with a masterful display of judicial imperium. Two of the three judges who heard the case managed to ignore the last ten years of case law. They stopped at 1965: “In Griswold … the ruling was put on the right of marital privacy—held to be one of the specific guarantees of the Bill of Rights—and was also put on the home and family.” After nearly a page of quotations, they declared:
With no authoritative judicial bar to the proscription of homosexuality—since it is obviously no portion of marriage, home, or family life—the next question is whether there is any ground for barring Virginia from branding it as criminal. If a state determines that punishment therefore, even when committed in the home, is appropriate in the promotion of morality and decency it is not for the courts to say that the State is not free to do so.
Eisenstadt and Roe had made it clear that the right of privacy was not limited to marital relationships—that, in fact, it belonged to in-dividuals—but the judges dealt with these cases by ignoring them. In dissent, Judge Robert Merhige argued:
The Supreme Court has consistently held that the Due Process Clause of the Fourteenth Amendment protects the right of individuals to make personal choices unfettered by arbitrary and purposeless restraints, in the private matters of marriage and procreation…. A mature individual’s choice of a sexual partner, in the privacy of his or her own home, would appear to me to be a decision of the utmost private and intimate concern. Private consensual sex acts between adults are matters, absent evidence that they are harmful, in which the state has no legitimate in-terest.24
There is another reason that the distinction between marital and homosexual relationships is unacceptable. The only thing that prevents homosexuals from marrying is the law itself. The only fixed, natural difference between heterosexual and homosexual liaisons is that the latter cannot produce children, but children are not a necessary component of marriage. The distinctions of which Doe makes so much are artificially created, imposed by the same legal system that now uses them to curtail individual rights.
But suppose the court had been more honest in its use of precedent, and had deemphasized legal distinctions? Is it possible to make a valid argument that heterosexual activity should be protected while homosexual activity should not be? Judge Merhige alludes to the lack of evidence that homosexual acts are harmful, but that is an invitation down a blind alley. The decision that an individual interest is to be ranked as a constitutional right does not depend on its harmlessness. In this context, it depends on whether the interest is personal and intimate. If we rank sexual behavior up there with, say, freedom of expression and religion as a fundamental right, evidence that it can cause harm is not enough by itself to justify abridging the freedom. As Roe stated more than once, what is needed is a “compelling state interest” that demands restriction of the right.25
Eisenstadt, Roe, and many of the cases cited in Griswold refer, again and again, not to marriage and the family but to individual rights. What these decisions protect is the right of human beings to govern the private spheres of their lives. Their choices in marriage and family life are among those activities, but they are not the only ones that belong to the private sphere. Those cases, and the penumbras of the Bill of Rights which give guarantees life and substance, suggest no ground for a distinction based on sexual preference.
Therefore, homosexual relationships, too, are within the zone of privacy. They belong to the upper tier of individual rights, and can be infringed only on a compelling state interest. None of the arguments about the effect of homosexuality on society and on the family even approaches this rigorous standard.
There is no reason to believe that anyone who considered the issue in the light of all the major relevant precedents would ever have thought otherwise. But the Supreme Court was no more ready to do so than the lower court had been. The justices upheld the lower court without opinion in Doe, and also in a North Carolina case that had resulted in an actual conviction.26 Whether this action was due to judicial homophobia, to the efforts of justices with definite opinions to avoid the wrong result if their colleagues got hold of this case, or any other factor, it shows a laxity about lower court adjudication which is, to say the least, uncharacteristic.27 Whatever the reasons, the results are that homosexuals do not have equal rights of privacy. And neither they, the citizens most concerned, nor we, the students of constitutional law, have heard a respectable defense of this ruling.
The homosexual rights movement has one important characteristic in common with most contemporary social movements. The college or university campus has often been the locus of activism. Like Students for a Democratic Society, the Young Democrats, or the Young Americans for Freedom, gay student groups have sought to form campus organizations. Most universities have formal procedures that groups must follow in order to use campus facilities, hold meetings and functions, and advertise on campus. These procedures typically include application to some university authority—a committee, a dean, the president, or the trustees—which has the power, sometimes subject to review, to accept or reject the application. Rejections do occur, and they have produced some lawsuits. A 1972 Supreme Court decision established that First Amendment rights of association apply to organizations on state campuses. So far, with one exception, federal courts of appeals have followed this precedent with respect to gay activist groups. But the district courts have not been consistent, and two Supreme Court justices have extended what amounts to an invitation to the circuits to rule against the groups.
The precedent is Healy v. James.28 In the fall of 1969, some students had organized an SDS chapter at Central Connecticut State College. They had asked the Student Affairs Committee, consisting of four students, three faculty members, and a dean, for official recognition. The committee approved, but the president rejected the application on the grounds that SDS’s “published aims and philosophy, which include disruption and violence, are contrary to the approved policy” of the college.29 The students brought suit, and three years later—by which time at least some of the original plaintiffs had presumably graduated—the Supreme Court voted unanimously to remand the case. It ruled that the administration bore, and had not met, the burden of proof that SDS would be likely to produce violence and infringe the rights of others. In support of the ruling, Justice Powell had some venerable precedents to cite, including Tinker, Shelton v. Tucker, and NAACP v. Alabama.30
One would assume that what applied to SDS would also apply to homosexual groups. But that turned out to be a chancy proposition at best. Even when courts have felt bound by Healy, university officials have not; and even when universities have followed precedents, higher officials have caused problems.
The first case was Wood v. Davison, just six months after Healy. The University of Georgia had forbidden a Committee on Gay Education to hold a conference and dance. In the absence of any evidence that illegal or disruptive activity would result, the judge ruled that Healy was controlling.31 The next decision, Gay Students’ Organization v. Bonner, got wide publicity, at least in New Hampshire, whose state university had given the GSO official recognition in May 1973. In November the group sponsored a dance on campus, an event that attracted media coverage. Governor Meldrim Thompson, Jr., publicly criticized the university for allowing this dance.
The Board of Trustees responded to Thompson’s statement by forbidding GSO to hold a party scheduled for December, but it was allowed to present a play on the same evening. Two “extremist homosexual publications” were distributed at the play; the GSO claimed it had nothing to do with them, but some witnesses disputed this statement. A week later, Thompson wrote an “open letter” to the trustees, stating that “indecency and moral filth will no longer be allowed on our campuses… . Either you take firm, fair, and positive action to rid your campuses of socially abhorrent activities or I, as governor, will stand solidly against the expenditure of one more cent of taxpayers’ money for your institutions.” UNH’s president, Thomas Bonner, then issued a statement condemning the distribution of the literature, ordering an investigation, and tightening restrictions on GSO activities. The group sued in federal district court, alleging violations of its First and Fourteenth Amendment rights.
Within a month, Judge Hugh Bownes sustained the group’s claims. Relying on Healy and Wood, Bownes ruled that the ban on social functions alone, even apart from the ban on “more traditional First Amendment rights” to distribute literature, infringed these rights. “Support for this position lies in the pervasive importance of social functions in the university setting.” Turning to the Fourteenth Amendment claim, the judge remarked, “Although the students’ rights cases have developed along First Amendment lines, many have involved, almost sub silentio, Equal Protection underpinnings.” The denial to homosexuals of rights enjoyed by other groups constituted “differential treatment [that] must rationally further some legitimate interest.” That is rather mild, but in fact, no such interest was involved here. There was no evidence of any violations of law or other disruptive activity. In December the Court of Appeals unanimously upheld Judge Bownes. The state did not persist.32
Thompson made himself an easy target. Such an extreme reaction has been the exception. On many campuses, homosexual organizations have been granted the rights enjoyed by other groups without opposition or incident. The denials that have occurred have rested, as we shall see, on fears of illegal or harmful activity. The Fourth, Fifth, and Eighth Circuits all upheld the student groups, although the Fifth Circuit did rule against students in one case because the rejection came from the student-controlled campus newspaper rather than from the administration.33 The most interesting of these cases, which has reached all three levels of the federal judiciary, resulted from the conflict between a group known as Gay Lib and the University of Missouri.
This group’s struggle for official status began in February 1971, when it applied to the Missouri Student Association. It was successful there, and with the joint faculty-student review committee, but the dean of student affairs vetoed the recommendation a year later. Gay Lib appealed the veto. After the controversy had made its way up through the university hierarchy, the Board of Curators scheduled a hearing. The hearing was held, be it noted, in August 1973, when few students were on campus, and resulted in a 290-page transcript. The hearing examiner recommended against recognition, and the board adopted his conclusions verbatim.
At every level of review, the reasons for denial were similar, and twofold. First, it was alleged that official recognition of a gay organization would encourage and increase violations of Missouri’s antisodomy law. Second, several participants believed that homosexuality was a mental disorder and that such a group would spread it, especially among “those students who, during this period of their growth and development, may, from time to time, be concerned about their sexual identity.” Although the American Psychiatric Association was soon to vote otherwise, two well-known psychiatrists, Harold Voth and Charles Socarides, testified at the hearing in support of the “disorder” theory.
The district court ruled for the university, accepting both of these claims. Judge Elmo Hunter distinguished Healy by asserting that “the members of Gay Lib are free to express within the law their beliefs and views of homosexuality and of the Missouri Criminal Statutes on that subject. But it is a far different thing to show a right under the First Amendment than to receive official school recognition of Gay Lib with all of the associational conditions that are likely to result therefrom.” And he found Voth and Socarides more persuasive than the one physician who testified for the students.34
If the sodomy laws are, as I have argued, unconstitutional, the possibility of their violation is no grounds for restricting rights of association. But there is no need to go that far in order to reject the court’s argument. If the possibility that lawbreaking may be encouraged is a ground for restricting group activities, that ground could apply to other campus functions; administrations could ban beer parties because they may lead to drunken driving or football games because they encourage disorderly conduct and destruction of property. Why apply the principle only to homosexuals?
There is, however, a subtler point to be made. Is it not dubious to limit freedom of expression because it may encourage crime at some indefinite point in the future? The old Smith Act cases seem to have worked to a decisive rejection of that notion.35
The appellate court reversed. On a page with more footnote than text, the majority declared that “the many Supreme Court cases dealing with prior restraints and other First Amendment issues make clear that the restriction of First Amendment rights in the present context may be justified only by a far greater showing of a likelihood of imminent lawless action than that presented here.” The treatment of the psychiatric testimony was equally curt. The court found that “defendants’ evidence turns solely on Dr. Voth’s conclusory ‘inference’ and Dr. Socarides’ ‘belief,’ for which no historical or empirical basis is disclosed,” and that “as demonstrated by the substantial body of professional medical opinion conflicting with defendants’ case, it must be acknowledged that there is no scientific certitude to the opinions offered.”
The dissenting judge, however, was convinced by the expert testimony “that homosexual behavior is compulsive and that homosexuality is an illness and clearly abnormal.” The university, perhaps interpreting this statement as a cue, petitioned for a rehearing en banc. The petition was denied by an equally divided court, but two dissenters recorded agreement with Voth, Socarides, and Judge Hunter.36
The university asked the Supreme Court for review. By now the case had a new name, in honor of the university’s president, C. Brice Ratchford.37 The petition for certiorari was denied, but in far from typical fashion. There were three recorded dissenting votes, which of course meant that the university had fallen only one vote short of review. Even more unusual, one dissenter wrote a revealing opinion.
Justice Rehnquist, joined by Justice Blackmun, thought the case fell within the Rule 19 guidelines for granting of certiorari, that it should be decided by the Court, and that it had been decided in conflict with applicable decisions. Ignoring the fact that the circuits were in agreement, he wrote, “The sharp split amongst the judges who considered this case below demonstrates that our past precedents do not conclusively address the issues central to this dispute.” Healy “was decided in what may fairly be described as a factual vacuum”; Connecticut had made no attempt to show that lawbreaking would result from formation of an SDS chapter. “Here, such a demonstration was undertaken, and the District Court sitting as a finder of fact concluded that petitioners had made out their case.” So Healy might not be controlling. Furthermore,
the University’s view of respondents’ activities and respondents’ own view of them are diametrically opposed. From the point of view of the latter, the question is little different from whether university recognition of a college Democratic club in fairness also requires recognition of a college Republican club. From the point of view of the University, however, the question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of state law providing that measles sufferers be quarantined. The very act of assemblage under these circumstances undercuts a significant interest of the State which a plea for the repeal of the law would nowise do. Where between these two polar characterizations of the issue the truth lies is not as important as whether a federal appellate court is free to reject the University’s characterization, particularly when it is supported by the findings of the District Court.38
Presumably, one writer remarks, “Justice Rehnquist believes that homosexuality is contagious.”39 That is not quite fair, of course; Rehnquist did not say he believed that. He said that the truth lay somewhere between the two poles of Republicans and germ spreaders—an analogy that is problematical enough.
But this singular metaphor cannot be dismissed as either irrelevant or a joke, however great the temptation to treat it humorously. Like the “crime” argument, the “disease” argument is not applied consistently to all relevant activities. One useful exercise is to think not about measles, but about alcoholism. That disease is spread on campus, and with full legal sanction. But even worse, Rehnquist’s “on the one hand, on the other hand” approach invites lower courts to base their rulings on some very questionable medical opinion that is no longer representative, if it ever was, of the psychotherapeutic profession, and that, to the negligible extent that it is backed by reliable data, is still subject to disproof, and is opposed by some contrary evidence.40
Rehnquist’s treatment of the crime issue is, if possible, even less persuasive. Every other group in the country—the Communist party, the Ku Klux Klan, Animal House, or whatever—is allowed to organize, meet, hand out literature, hold parties and rallies, and discuss illegal activity to the heart’s and mind’s content. No one can predict when rebellion, cross burning, or drunken mayhem will result, but no restrictions are premised on those possibilities. But here, just as in Doe, one group of people—homosexuals—is singled out for special restrictions, and rights granted all other citizens are jeopardized for them. The courts have nearly created a special outlaw class.
Unlike privacy and association, employment is not ranked as a constitutional right. Perhaps it should be; to individuals, it is an interest of the greatest importance. Losing one’s job, or not getting one, has been and continues to be a common consequence of known or suspected homosexuality. This is not true for all jobs, but it is true often enough to help explain why the closet door has remained closed. The stigma attached to homosexuality has provided a rationale for employers’ behavior. After all, are not such employees vulnerable to blackmail or extortion? This argument was particularly effective in security-sensitive government positions. As the ignominy attached to homosexuality has diminished, this rationale has lost force. And once a worker has disclosed his or her preference, the threat of exposure is empty.
The openly gay employee, however, has often fallen victim to another rationale for dismissal: that the notoriety resulting from disclosure would harm the employer, customers, or clients. These rationales put the worker in a classic no-win situation. Either overt or covert homosexuality becomes grounds for discrimination. And, as we shall see, this double bind does not exhaust the rationales.
The cases I discuss here are fairly recent, most having been decided since 1970. The Supreme Court’s only participation has been in denial of review. The lower courts have been left without guidance to develop their own doctrines. With few exceptions, the decisions have been unfavorable to the homosexual plaintiffs. Some of the cases turn out, on analysis, to involve provisions of the Bill of Rights, most notably the First Amendment. The pattern of the last two groups of cases recurs: general precedents from which courts depart in this particular setting.
Most of the cases involve public employment: the military, as in the famous Matlovich case;41 the U.S. Civil Service; the state campus; or the public school. In the 1960s the District of Columbia Court of Appeals dealt with a few civil service cases.42 After a shaky start, this court, often over the dissent of Warren Burger, arrived at the position that unsubstantiated charges were insufficient grounds for rejection or dismissal.43 Matlovich and similar rulings established that the military could not dismiss homosexuals unless it had a set of self-limiting rules to guide decisions.44 In the states, a California case, Morrison v. Board of Education, reinstated a high school teacher who had been fired after admitting a past homosexual episode.45 But neither military nor civilian federal authorities are forbidden to dismiss homosexuals at all,46 and the states retain even more leeway.
McConnell v. Anderson was the indirect result of a famous skirmish in the struggle for gay rights. James Michael McConnell had been offered a job as a librarian at the University of Minnesota, to begin in September 1970. Before the Board of Regents formally approved the appointment, McConnell and his lover, Jack Baker, applied for a marriage license, which was to be repeatedly denied them. This action was noted in the press, and as a result the board rejected McConnell’s appointment, stating that his “personal conduct, as represented in the public and University news media, is not consistent with the best interest of the University.47
In September the district court ruled that McConnell had been denied due process. Citing both the civil service cases and the loyalty-security rulings of the 1950s and 1960s,48 the judge stressed the lack of any demonstrated relationship between homosexuality and com-petence.49 But he was reversed; a year later, the Court of Appeals ruled in favor of the Regents. The opinion insisted that more than homosexuality was at issue. This was “a case in which the prospective employee demands … the right to pursue an activist role in implementing his unconventional ideas concerning the social status to be accorded homosexuals and, thereby, to foist tacit approval of this socially repugnant concept upon his employer… . We know of no constitutional fiat or binding principle of decisional law which requires an employer to accede to such extravagant doctrine.”50
Well, none if we leave out the First Amendment. Presumably we have traveled some distance from Holmes’s famous pronouncement that a person has a constitutional right to freedom of speech, but no right to be a policeman.51 When compared to the loyalty-security cases, McConnell seems plain wrong. But it is still good law. Not only did the Supreme Court refuse to hear the case, but the appellate court’s reasoning has been duplicated in other rulings.52
Activism proved equally dangerous to Joseph Acanfora, a junior high school teacher in Rockville, Maryland, a suburb of Washington. His five television appearances, including one on 60 Minutes, during the 1972–73 school year led to a forced transfer to a nonteaching position. The Board of Education made the familiar argument that a gay teacher may serve, intentionally or not, as a role model for students, but this was not the grounds for decision. District Judge Joseph Young cited, of all cases, Schenck v. United States:53
Despite the apparent lack of connection, it is perhaps noteworthy that the “panic” of the crowded theater in the illustration has some similarity to the reaction of parts of the school community in this case. The instruction of children carries with it special responsibilities, whether a teacher be heterosexual or homosexual. The conduct of private life necessarily reflects on the life in public. There exists then not only a right of privacy, so strongly urged by the plaintiff, but also a duty of privacy.
To liken the effects of a teacher’s publicizing his homosexuality to those of falsely shouting “Fire!” in a crowded theater is sheer nonsense. To write about correlative rights and duties in a First Amendment case is to reduce the provision to the Mark Twain caricature quoted in Chapter 7. Judge Young has also come very close to stating that public school teachers do not have the same rights as do other citizens, and he removed any doubt about his position: “The point is that to some extent every teacher has to go out of his way to hide his private life, and that a homosexual teacher is not at liberty to ignore or hold in contempt the sensitivity of the subject to the school community.”54
The Court of Appeals affirmed, but it did reject some of this reasoning. It cited a case Judge Young ignored, Pickering v. Board of Education, which might be called the Healy v. James of the public school. In Pickering, the Supreme Court unanimously ruled in favor of a teacher who was fired for making public statements critical of the board.55 Acanfora’s statements, then, were protected by the First Amendment. But he was not entitled to relief because on his job application he had omitted Homophiles of Penn State from his list of college extracurricular activities. “Acanfora purposely misled the school officials so he could circumvent, not challenge, what he considers to be their unconstitutional employment practices. He cannot now invoke the process of the court to obtain a ruling on an issue that he practiced deception to avoid.” This was the loophole left by the loyalty-security cases; one could not be fired for one’s memberships or for refusing to give information about them, but one could be fired for withholding information. So Acanfora was punished first for revealing and then for concealing. Again, the Supreme Court denied certiorari.56
It is useful to compare this discussion to parts of Chapter 7. The message sent to public school teachers is something like this: “You work long hours at a low-paying, low-status job. Your employers are free to ask all sorts of questions about your activities. You must carefully limit your participation in community life, making sure that you do nothing that could disturb your employers, your students, or their parents. But you may go to the head of the cafeteria line, you may punish the students for lack of respect for you, and you’re pretty much free to hit them.” Somehow, it all sticks together.
Teaching has been a precarious occupation for homosexuals. These cases repeat a pervasive fear that homosexual teachers will somehow influence their students to emulate them, whether by seduction, verbal encouragement, or serving as a role model. These are separate concerns, and need to be carefully distinguished. Seduction of schoolchildren is sexual abuse, and must be prevented. But this is true whether homosexuals or heterosexuals do the abusing, and there is no evidence that the former are more likely to abuse children than the latter.57 The “role model” issue is more subtle, though not much more. If it is true, as some experts think, that sexual orientation is fixed by the age of five, the age at which public school education usually begins, teachers cannot have much influence. But this expert opinion is not unanimous, and, as I have suggested, there is some knowledge that tends to refute it.58 Russell Baker, however, has responded perfectly to this argument. In a column published in 1977, during Anita Bryant’s crusade in Dade County (the site of Ingraham v. Wright), Baker wrote that the controversy “prompted me to ponder teachers I haven’t seen, and scarcely thought about, in decades, and for the first time I reflected on how their sex lives had affected my own. My first thought was that it was curious, perhaps perverse, that I have not turned out to be a spinster.”59 The point is obvious, and the intensity of the feelings on the other side does not make the arguments any stronger.
However solid the arguments, the opinions were intense enough to lead to the dismissal of John Gish in Paramus, New Jersey, and James Gaylord in Tacoma, Washington. Though Gish held office in gay organizations, he was not so prominent as Acanfora. And Gaylord, far from being an activist, had not revealed his homosexuality even to his family. It made no difference.
In July 1972, a month after Gish became president of the New Jersey Gay Activists Alliance, the Paramus Board of Education ordered him to undergo a psychiatric examination, as state law allowed. When he refused, he was suspended without pay. Without having met Gish, the board’s consulting psychiatrist stated that his “overt and public behavior … indicated a strong possibility of psychological harm to students of the school district as a result of their continued association with him.”60
“Protection of school children from teachers who have shown evidence of harmful, significant deviation from normal mental health,” the Superior Court ruled, “is without question not only a valid legislative concern but one classifiable as a compelling state interest. This being so, the fact that the statute may intrude upon a teacher’s right of association, expression and privacy does not render it unconstitutional.” The appellate division was more generous about Gish’s rights, but endorsed the school board’s interest in student mental health and noted that a psychiatric examination was not, after all, a dismissal.61
James Gaylord had taught at Wilson High School in Tacoma for twelve years, earning tenure and consistently excellent evaluations. His troubles began about the same time John Gish’s did. In October 1972 a former student told the school’s vice-principal that he thought Gaylord was homosexual. It is not clear how, or even whether, the student knew; there was no allegation of sexual relationships with students. When confronted, Gaylord admitted his preference. He was fired after a hearing two months later. The dismissal rested on the allegation that he was an unfit teacher.
The Washington Supreme Court heard the case twice, en banc. The first time, two and a half years after Gaylord’s discharge, it remanded the case to the trial court, on the grounds that the school district had met its burden of proof by the administrators’ testimony that students’ and parents’ complaints would affect Gaylord’s fitness.62 But when the court got the case again, in January 1977, it was satisfied. What apparently convinced the judges was the negative testimony of three fellow teachers, a student, and the opinions of moral and medical authorities, including the New Catholic Encyclopedia. Judge Charles Horowitz wrote:
After Gaylord’s homosexual status became publicly known, it would and did impair his teaching efficiency. A teacher’s efficiency is determined by his relationship with his students, their parents, the school administration and fellow teachers. If Gaylord had not been discharged after he became known as a homosexual, the result would be fear, suspicion, parental concern and pressure on the administration.63
So people become unfit when others accuse them, a sectarian reference work is an authoritative source, and an informer can get a teacher fired. This opinion must stand as its own best refutation. But five years after the cases had begun, the Supreme Court denied review in both Gaylord and Gish.64
McConnell, Acanfora, Gish, and Gaylord present a grim picture of what Gunther has called irresponsible and lawless court actions. But there are some glimmers of responsibility and lawfulness. Perry Au-miller, a theater manager at the University of Delaware, fared better. Aumiller’s immediate superiors knew he was gay, but the university’s president did not. He found out when Aumiller was mentioned in articles in the student newspaper on gay activists on campus, and he was not pleased. He refused to renew Aumiller’s contract.
The district court ruled in Aumiller’s favor. Judge Murray Schwartz cited Pickering, and did not find Aumiller’s activities notorious enough to be controlled by McConnell. He did not mention Acanfora, even though it was binding precedent in the same circuit, but perhaps he thought that decisions about secondary school teachers did not apply to university employees. “The fundamental purpose of the First Amendment,” he wrote, “is to protect from State abridgement the free expression of controversial and unpopular ideas… . The decision not to renew Aumiller’s contract because of his public statements contravenes these most basic teachings of the First Amendment and cannot be tolerated.”65
Gay Law Students v. Pacific Telephone is an exciting case. In 1979 the California Supreme Court ruled that the company’s policy of not hiring homosexuals violated the equal-protection clause of the state constitution and the California Public Utilities Code. This decision is binding only in California, but it is important because the state’s equal-protection guarantee is identical to that of the Fourteenth Amendment and because the court called such discrimination “arbitrary exclusion of qualified individuals from employment opportunities.”66 Between them, Aumiller and Pacific Telephone could transfer the double bind from the homosexuals who seek employment to the employers who wish to reject them. If homosexuality is known, rejection violates the First Amendment; if homosexuality is unknown, discrimination is arbitrary. This argument makes far more sense than the unproved theories about notoriety and harm. But so far, the weight of precedent is on the restrictive side, however ill grounded that precedent is.
In the Old West, the outlaw was a person whom the laws of the region did not protect. He might be captured, punished, or even murdered without those procedural safeguards that generally prevailed. The contemporary homosexual is not in quite so dire a situation. To describe homosexuals as outlaws would be an exaggeration. But it is not an exaggeration to say that homosexuals are denied several of the constitutional rights of adult American citizens, and that among these rights are privacy, freedom of association, and freedom from arbitrary discrimination. Again and again, judges depart from the classic precedents of constitutional law to produce new, special dogma applicable only to homosexuals:
Sometimes, as in Doe, the judges have ignored relevant precedents. Or as in Acanfora, they have delegated the case to the only remaining loophole. But perhaps the most disquieting cases are those, such as the district court Acanfora ruling and the second Gaylord case—and, of course, Rehnquist’s dissent in Ratchford—in which the judges try to defend this special treatment. In Acanfora we learn that a gay teacher can cause a danger similar to the panic produced by falsely shouting “Fire!” We might ask how: will the students rise up and stone him to death, or will they trample one another in their rush to safety? The situation would seem to be nearer to Tinker, or the discomfiture allegedly caused by a pregnant teacher hinted at in Cleveland Board of Education v. LaFleur,67 than to Schenck (although, of course, the “panic” analogy was not very good there, either).
The “impaired teaching efficiency” that cost James Gaylord his job came about because a student made a report about him, an administrator took that report seriously, and some fellow teachers made a selffulfilling prophecy. If Gaylord was rendered unfit, his unfitness was at least as much the result of others’ reactions to reports about him as of his own conduct. The record suggests that the way to get people fired is to start rumors about them. Justice Rehnquist’s comparison of homosexuality to measles is startling, but what is most objectionable about that statement is that he finds those acceptable words to put in university officials’ mouths, and thus tacitly approves of such notions as a basis for decisions.
What the cases share is less an opinion on homosexuality, though that does surface on occasion, than a judicial conception of what public opinions about homosexuality are legitimate bases for abridgment of constitutional rights. The cases reveal, though the opinions do not always endorse, the deep hostility, distrust, and fear—“hatred” is not too strong a word—that many Americans feel toward homosexuals. All sorts of vague fears about influence, encouragement, the effects on youth, and the “spread” of homosexuality abound. The fears may be formless, but they are not mild; the passion with which opinions are held is striking. And many of the judges seem to think that when these intense feelings are expressed in public policy, it is their official duty to honor them. The Supreme Court, in its repeated refusals to hear these cases, has made no effort to instruct those judges otherwise.
And there might be such a duty, were it not for the fact that the claims on the other side involve what have been recognized as constitutional rights. Where freedom of association is involved, the state may not penalize a person simply because citizens or officials feel that he or she might present a danger or be an unfit employee, however intense that feeling is. When no relationship between sexual orientation and performance exists, dismissal is arbitrary and capricious, no matter how strongly people believe otherwise. There appears to be no need for any reformulations of constitutional doctrine. What is involved here is irresponsible, unfounded departure from established doctrine.
Why, then, should cases dealing with the rights of homosexuals concern us here? I discuss them for two reasons. First, as I have indicated, considering homosexuals in the light of some traditional categories, such as suspect classification, reveals some—still more—inherent defects in that concept. Second, I am convinced that, while my reformulation may not be necessary in this area, it is useful. For Judge Bownes, in the first Bonner case, was right. These claims do have equal-protection underpinnings. One of the failings of these decisions is that these features are either ignored or put in the old categories and dismissed, as in Acanfora, when Judge Young rejected the Frontiero version of suspect classification as “inconclusive” in its application.68 Adjudication is marked by a kind of Balkanization of the Constitution, from which Douglas’ opinion in Griswold was a bold departure, whereby judges focus either on the constitutional claim or on a series of claims separately and in succession. They may start with the First Amendment and, having disposed of that issue, move on to the equal-protection clause, but, except for Judge Bownes, they do not consider these two provisions together and ask what they might do in combination.
This structural interpretation finds support in the legislative history of the Fourteenth Amendment. Both the House and Senate floor leaders, it will be recalled, argued that the amendment included provisions of the Bill of Rights. Whether or not Justice Black’s “incorporation” thesis is correct, it is clear that the framers of the amendment saw a strong relationship between its limitations on the states and rights already secured against the federal government.
If we assume such a relationship—adopting a formulation similar to that of Justice Marshall’s Rodriguez dissent—we get a new idea of what is happening in these cases. People are being deprived of either a constitutional right or an interest of paramount concern—sometimes both. That much, of course, most of the decisions recognize. But those decisions weigh the individual claim against the state interest; they do not view the individual plaintiff as part of a group. The equal-protection approach lets us do so.
What now becomes clear is that a group of people is being singled out for deprivations not imposed on others. Homosexuals are treated differently from everyone else; they lose rights and vital interests that others have. This, certainly, is legal stigmatization. Indeed, once it is recognized that what is involved is classification, is it not clear that, to paraphrase Brennan in Bakke, these are “classifications that are drawn on the premise that homosexuals are inferior to others” and that “put the weight of the government behind hatred and separatism”?69
We then have to ask why this stigmatization is happening. What differentiates homosexuals from Communists, atheists, women who want abortions, and all the other people who espouse a variety of causes? Apparently the crucial difference lies in the attitudes people have about homosexuality, and these attitudes arise from ignorance and prejudice.
Fitting this situation into Marshall’s scheme clarifies the point. First, the threatened interests are paramount. Second, the trait that is the basis for classification—sexual preference—may or may not be immutable, may or may not be involuntary. But surely it is of a deeply personal nature, something that pertains to a most private aspect of an individual’s life. The classification may or may not be suspect, or even semisuspect, but the privacy cases make it one that is outside of state concern, in much the same way that religion is. Finally, when we consider the third part of Marshall’s test, the government interest in restriction, we find none of any substance.
The lesson of the gay rights cases is how easy it is for courts to ignore settled constitutional law when a group is newly active and feeling against it is strong. The decisions are wrong, even as the law now stands. They are so bad that consideration of the complex issues surrounding homosexuality is not even necessary. But one reason these decisions have been possible is that traditional ways of thinking about constitutional cases have hidden the real import of such rulings. A new formulation, one that is closer to the meaning of constitutional equality, could go a long way toward granting this semioutlaw class the true citizenship it deserves.
1I define “homosexual” as dictionaries typically do: “having erotic desire towards, or sexual relations with, a member of one’s own sex.” “Lesbian” refers to a female homosexual. I use the words “homosexual” and “gay” interchangeably.
2Isbell, “Potomac Fever,” p. 64.
3See Federal Register, 41, p. 20296 (May 17, 1976):29548–49 (July 16, 1976). For the final version, see 45 C.F.R. 85.31 (1977).
4See Boyce Rosenberger, “Psychiatrists Review Stand on Homosexuals,” New York Times, February 9, 1973, p. 24; “Doctors Urged Not to Call Homosexuality an Illness,” ibid., May 19, 1973, p. 20; “The Issue Is Subtle, But the Debate Still On,” ibid., December 23, 1973, IV, p. 5.
5Safire, “Don’t Slam the Closet Door,” ibid., April 18, 1974, p. 41; Michael F. Va-lente, “On Homosexuality,” ibid., January 14, 1975, p. 33.
6Three Essays on the Theory of Sexuality (1905), trans. James Strachey (New York: Avon Books, 1962), p. 25.
7J. Harvie Wilkinson III and G. Edward White, “Constitutional Protection for Personal Lifestyles,” Cornell Law Review 62 (March 1977):595–96.
8Report of the Committee on Homosexual Offences and Prostitution (London: H.M.S.O., 1957), para. 61–62.
9The Enforcement of Morals (New York: Oxford University Press, 1959), p. 9.
10For criticism of this argument, see Harry M. Clor, Obscenity and Public Morality (Chicago: University of Chicago Press, 1969), chap. 5.
11Law, Liberty, and Morality (New York: Oxford University Press, 1963), p. 51.
12Ibid., pp. 51–52. Emphasis in the original.
13Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).
14Griswold v. Connecticut, 381 U.S. 479, 485; Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), affirmed, 425 U.S. 903 (1976); Enslin v. North Carolina, 214 S.E. 2d 318 (N.C. Court of Appeals 1975), 425 U.S. 903. The Gunther quote is from Anthony Lewis, “No Process of Law,” New York Times, April 8, 1976, p. 37.
15The leading case is NAACP v. Alabama, 357 U.S. 449 (1958).
16See n. 13 above and Eisenstadt v. Baird, 405 U.S. 438 (1972).
17See Gay Law Students v. Pacific Telephone and Telegraph, 595 P. 2d 592, 610 (Cal. Sup.Ct. 1979).
18See, e.g., Freud, Three Essays; Arno Karlen, Sexuality and Homosexuality (New York: W. W. Norton, 1957).
19See, e.g., Irving Bieber, Homosexuality: A Psychanalytic Study (New York: Basic Books, 1962); William H. Masters and Virginia E. Johnson, Homosexuality in Perspective (Boston: Little, Brown, 1979).
20Three Essays.
21381 U.S. 479, 484.
22405 U.S. 438, 453. Emphasis in the original.
23Roe v. Wade, 410 U.S. 113, 152–53.
24403 F. Supp. 1199–1203.
25410 U.S. 113, 155 (1973).
26See n. 14.
27See Rhonda R. Rivera, “Our Strait-Laced Judges: The Legal Position of Homosexual Persons in the United States,” Hastings Law Review 30 (March 1979):799–955; Morton Mintz, “The Supreme Court: Remaining Silent on Homosexuals’ Rights,” Washington Post, December 11, 1979, p. A3.
28408 U.S. 169, 92 S.Ct. 2338 (1972).
2992 S.Ct. 2338, 2343, n. 4.
30393 U.S. 503 (1969); 364 U.S. 479 (1960); 357 U.S. 449 (1958).
31351 F. Supp. 543 (N.D. Ga. 1972).
32367 F. Supp. 1088, 1092, 1095, 1096, 1098 (D.N.H. 1974); Gay Students Organization v. Bonner, 509 F. 2d 652 (1st Circ. 1974).
33Respectively, Gay Alliance of Students v. Mathews, 544 F. 2d 162 (1976); Gay Student Services v. Texas A & M University, 612 F. 2d 160 (1980); Gay Lib v. University of Missouri, 558 F. 2d 848 (1977), cert. den. 434 U.S. 1080 (1978); Mississippi Gay Alliance v. Goudelock, 536 F. 2d 1073 (1976), cert. den. 430 U.S. 982 (1977).
34Gay Lib v. University of Missouri, 416 F. Supp. 1350, 1355, 1370 (W.D. Mo. 1976), quoting from Dean Edwin Hutchins’ letter to the Committee on Student Organizations, February 1, 1972.
35See Dennis v. United States, 341 U.S. 494 (1951); Yates v. United States, 355 U.S. 66 (1957).
36Gay Lib v. University of Missouri, 558 F. 2d 848, 854–55, 858–61 (8th Circ. 1977).
37Ratchford v. Gay Lib, cert. den. 434 U.S. 1080 (1978).
38Ibid., pp. 1082, 1085, 1084.
39Rivera, “Our Strait-Laced Judges,” p. 930, n. 829.
40See the authorities cited in n. 4 above and Robert E. Gould, “What We Don’t Know about Homosexuality,” New York Times, February 24, 1974, VI, pp. 13ff.
41Matlovich v. Secretary of the Air Force, 414 F. Supp. 690 (D.D.C. 1976), 591 F. 852 (D.C. Circ. 1978).
42See Dew v. Halaby, 317 F. 2d 582 (1963).
43Scott v. Macy, 349 F. 2d 182 (1965), 402 F. 2d 644 (1968); Norton v. Macy, 417 F. 2d 1161 (1969).
44See n. 41 above; Berg v. Claytor, 436 F. Supp. 76 (D.D.C. 1977), 591 F. 2d 849 (D.C. Cire. 1978); Saal v. Middendorf, 427 F. Supp. 192 (N.D. Cal. 1977).
45461 P. 2d 375 (Cal. Sup.Ct. 1969).
46See Singer v. U.S. Civil Service Commission, 530 F. 2d 247 (9th Circ. 1976), vacated and remanded, 429 U.S. 1034 (1976), no final disposition as of 1981.
47316 F. Supp. 809, 811 (D. Minn. 1970).
48See n. 43 above; Wieman v. Updegraff, 344 U.S. 183 (1952); Siochower v. Board of Higher Education, 350 U.S. 551 (1976); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Keyishian v. Board of Regents, 385 U.S. 589 (1967).
49316 F. Supp. 809, 811ff.
50McConnell v. Anderson, 451 F. 2d 193, 196. Emphasis in the original.
51McAuliffe v. Mayor of New Bedford, 29 N.E. 517 (Mass. Sup. Jud. Ct. 1892).
52405 U.S. 1046 (1972).
53249 U.S. 47 (1919).
54Acanfora v. Board of Education, 359 F. Supp. 843, 855–57 (D. Md. 1973).
55391 U.S. 563 (1968).
56Acanfora v. Board of Education, 491 F. 2d 498, 504 (4th Circ. 1974); 419 U.S. 836 (1975).
57See, e.g., Editorial, “Should Homosexuals Be Teachers?” New York Times, May 24, 1977, p. 34.
58See, e.g., testimony of John Money, cited in Acanfora v. Board of Education, 359 F. Supp. 843, 847–50; Bieber, Homosexuality; Masters and Johnson, Homosexuality in Perspective.
59“Role Models,” New York Times, June 26, 1977, VI, p. 10.
60Gish v. Board of Education, 366 A. 2d 1337, 1339–40 (N.J. Super. Ct., Appellate Division, 1976).
61Kochman v. Keansburg Board of Education (same case), 305 A. 2d 807, 812 (N.J. Super.Ct., Chancery Division, 1973); Gish v. Board of Education, 366 A. 2d 1337, 1341–42.
62Gaylord v. Tacoma School District No. 10, 535 P. 2.d 804 (1975).
63Gaylord v. Tacoma School District No. 10, 559 P. 2.d 1340, 1342 (1977).
64434 U.S. 879 (1977).
65Aumiller v. University of Delaware, 434 F. Supp. 1273, 1301 (D. Del. 1977).
66595 P. 2d 592, 598–99 (1979).
67414 U.S. 632, 641, n. 9 (1974).
68359 F. Supp. 843, 852.
69438 U.S. 265, 357–58 (1978).