Today we welcome a guest post from Marc Stein, author of Sexual Injustice: Supreme Court Decisions from Griswold to Roe. Focusing on six major Supreme Court cases during the 1960s and 1970s, Stein examines the generally liberal rulings on birth control, abortion, interracial marriage, and obscenity in Griswold, Eisenstadt, Roe, Loving, and Fanny Hill alongside a profoundly conservative ruling on homosexuality in Boutilier. In the same era in which the Court recognized special marital, reproductive, and heterosexual rights and privileges, it also upheld an immigration statute that classified homosexuals as “psychopathic personalities.” Stein shows how a diverse set of influential journalists, judges, and scholars translated the Court’s language about marital and reproductive rights into bold statements about sexual freedom and equality.
In this post Stein highlights one of the historic cases referenced in the Ninth Circuit’s Court of Appeals ruling not to stay the temporary restraining order on President Trump’s Executive Order restricting the entry of people from seven predominantly Muslim countries.
Earlier this month, after a three-judge panel of the Ninth Circuit Court of Appeals rejected the Trump administration’s motion to stay a temporary restraining order for Executive Order 13769, a number of observers noticed that the ruling cited a major gay rights case as an important precedent. The case was Rosenberg v. Fleuti, decided by the U.S. Supreme Court in 1963. Thanks to the broad and deep education that most of us now receive in the history of LGBT rights and freedoms, few knowledgeable commentators could have missed the reference.
O.K., that last part was fake; few of us receive much of an education in LGBT history. And the number of people who noticed the reference to Fleuti was probably quite low. Truth be told, the decision in Washington v. Trump, which addressed the 90-day ban on the entry of Muslims from seven Middle Eastern and African countries, only makes passing reference to Fleuti. It’s not even clear that Fleuti was a major gay rights victory; I myself did not single it out in a 2014 essay I wrote about teaching the U.S. Supreme Court’s greatest gay and lesbian hits.
Still, it’s worth taking the opportunity to revisit Fleuti, which the Ninth Circuit panel quoted as saying that “the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”
Rosenberg v. Fleuti was a strange case in many ways. According to the facts presented in the Supreme Court’s decision, George Fleuti was a Swiss national who had been legally admitted as a U.S. permanent resident in October 1952 and had remained in the United States continuously except for a short day-trip to Ensenada, Mexico, in August 1956. For reasons that are unclear, in 1959 the Immigration and Naturalization Service attempted to deport Fleuti, claiming that when he re-entered the United States in 1956, he was excludable because he had been convicted of a crime of “moral turpitude” between his original entry in 1952 and his re-entry in 1956.
Unfortunately for the INS, it soon became clear that the minor same-sex sex offenses for which Fleuti had been convicted did not meet the definition of a crime of moral turpitude. Unfortunately for Fleuti, the INS had recourse to another law: in June 1952 Congress had passed a new immigration statute that provided for the deportation of aliens “afflicted with psychopathic personality.” The INS had begun to use this provision against “homosexual” aliens and that’s what it tried to use against Fleuti. Relying primarily on his prior convictions, the INS claimed that Fleuti had been afflicted with psychopathic personality when he re-entered the United States after his trip to Ensenada. (It could not make a similar claim about his original entry because the 1952 law did not take effect until December.) Fleuti’s lawyer Hiram Kwan argued in response that the psychopathic personality law was unconstitutionally vague.
Research in the papers of the justices reveals that initially the Supreme Court voted 5-4 against Fleuti, with the senior justice in the majority, Tom Clark, selecting the newest justice, Arthur Goldberg, to write the Court’s main opinion. Goldberg, however, changed his mind and he ended up writing a 5-4 decision in favor of Fleuti. Continue reading ‘Marc Stein: Immigration is a Queer Issue: From Fleuti to Trump’ »