The Law and Gay Rights

Given chance to consider bans on same-sex marriage in five states, the Supreme Court refused. Scott McLemee looks at a book on the long backstory.

October 22, 2014

Sixty years ago this month, the U.S. Post Office declared a small journal called ONE: The Homosexual Magazine, published in Los Angeles, to be obscene and thus unlawful to distribute through the mail. All copies of the latest issue were seized and presumably destroyed.

The editors -- having already endured a letter-writing campaign from the Federal Bureau of Investigation that tried to get them fired from their day jobs -- cannot have been that surprised by the postal service’s move. Still, the characterization of ONE as “cheap pornography” (in one judge’s words) was ludicrous. Recent issues had included articles on police entrapment, Walt Whitman, and attitudes toward homosexuality in Britain throughout history. The editors also published a sonnet by William Shakespeare and a salute to the “history-making TV appearance [of] Curtis White of Los Angeles [who] personally stated that he is a homosexual.”

By no stretch of the imagination was it fair to call ONE obscene. At worst, it was feisty. But that was much the same thing at a time when “homosexuals were virtually without constitutional rights,” as Walter Frank put it in Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy (Rutgers University Press). The turning point came when the Supreme Court overruled the USPS ban on ONE in 1958. The decision was little-noticed at the time -- and it doesn’t even register as a blip in the general public’s historical memory, in which the gay rights struggle began, more or less, with Stonewall. 

The Supreme Court decision ran to one sentence and cited the Court’s ruling in Roth v. United States, two years earlier. The author of Law and the Gay Rights Struggle is co-chair of the Law and Literature Committee of the New York County Lawyers Association, and takes for granted closer familiarity with Roth v. U.S. than most non-jurists will possess. (I could have told you that the plaintiff was Samuel, a publisher of girlie magazines, and not Phillip, the novelist -- though not much more.) But upon looking up the decision, it’s fairly easy to spot what has to have been the crucial passage with respect to ONE

“Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”

That it is. And a major strategy of early gay-rights advocates was to insist on the “absorbing interest to mankind through the ages” part with respect to same-sex desire. (Hence the Shakespeare sonnet in ONE.)

Frank’s purview is narrower, and a lot more democratic. He focuses on the seven decades following the end of World War II – a period in which the struggle for equality moved ever more in the direction of grassroots activism and demands for respect in everyday life. Identifying the illustrious gay dead gave way to more mundane but urgent priorities, like securing hospital visitation rights and protection from housing discrimination.

About half of Law and the Gay Rights Story consists of a succinct overview of how gay and lesbian communities and institutions took root within, and against, “a society that had simply decided to place certain people beyond its protection.” In a provocative formulation (I mean that in a good way) Frank writes that “discrimination itself could remain in the closet because gays themselves were not willing to come forward in sufficient numbers or with sufficient energy to contest it.”

A couple of generations of historians have studied how that situation changed – how the numbers and energy accumulated, and began to make a breach in a system that had effectively limited gays and lesbians to two choices, celibacy or criminality. Frank draws on and synthesizes the social and cultural historians’ work without claiming to go beyond it.

He does build in a distinctive periodization, however, by dividing the past few decades of gay-rights struggle into three phases or waves. The first and longest subsumes everything from ONE to Stonewall to the assassination of Harvey Milk: a cycle of growing confidence and assertiveness, coming to an end around the point when reports of a “gay cancer” emerged in 1981. His second period is defined by the AIDS crisis, in which government neglect and anti-gay political sentiment made the gay struggle largely defensive. A third wave, beginning in the early 1990s and continuing through the present, has seen something of a revival of the first period’s vigor but an even more remarkable growth of acceptance of claims for legal equality -- with the Supreme Court defining as unconstitutional both anti-sodomy laws and the Defense of Marriage Act’s definition of marriage to exclude same-sex couples.

In recent years, Frank writes, “concepts of freedom and equality began to overlap in a way they did not in the first phase, when gays were fighting for the right to celebrate themselves without fear and to be allowed some measure of dignity…. The equality that gays have been fighting for in this [most recent] phase concerns all the freedoms that most people take for granted, including the freedom to marry. As that argument has taken hold, the tide of public opinion has shifted, and with it the terrain on which the battle has been fought.”

In other remarks, the author seems perfectly aware of the potential for backlash. Consider the point of view expressed by a voter regarding an anti-gay ballot initiative: "I don't think being gay is right. It's immoral. It's against all religious beliefs. I don't agree with gays at all, but I don't think they should be discriminated against."

Frank cites this arresting blend of sentiments in a context suggesting that it demonstrates a slow growth of tolerance in seemingly inhospitable circumstances. That's one way to look at it. But politics is always a struggle to shift the terrain on which the battle is being fought, and reversals do occur. That said, I'd like to imagine that the person who contributed to ONE under the name Herbert Grant is still alive and well. In 1954, he wrote an article that might well have been the last straw for the authorities. In it, he proposed that same-sex couples be allowed to marry.


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