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Introduction

Clive (Right)

Young Clive (right).

 

On May 22, 1967, the U.S. Supreme Court announced its decision in Boutilier v. Immigration and Naturalization Service, one of the most important LGBT rights cases to reach the high court in the 1950s, 1960s, or 1970s.

Clive Michael Boutilier, born on September 3, 1933, in Sheet Harbour, Nova Scotia, was a U.S. permanent resident who in 1955, at age 21, had migrated from Canada to the United States. In 1963, when he applied for U.S. citizenship, he revealed to the INS that he had been arrested on a sodomy charge in New York City in 1959; the charges had been dropped when the 17-year-old “complainant” (most likely a consensual sexual partner pressured by the police to serve as a witness) had declined to appear in court. Interrogated by the INS in 1964, Boutilier revealed details about his sexual history, which included same-sex and cross-sex activities, about three or four times a year, before and after he entered the United States.

Based on this information and an assessment of Boutilier’s case file by the U.S. Public Health Service, the INS not only rejected Boutilier’s citizenship application but also ordered him deported. According to the INS, the 1952 Immigration and Nationality Act mandated the exclusion and deportation of noncitizen immigrants who were “afflicted with psychopathic personality.” Asserting that the legislative history of the Act proved that Congress, in passing the 1952 statute, understood “homosexuals” to be “afflicted with psychopathic personality,” the INS transmitted to Boutilier an order of deportation.

Boutilier was vulnerable to state authority for four overlapping reasons. As far as the U.S. government was concerned, (1) he was an immigrant, (2) he was a “homosexual,” (3) he was a “psychopathic personality,” and (4) he was an accused criminal.

Not much is known about Clive Michael Boutilier’s life. Legal and other records suggest that he was working-class, English-speaking, and white, and had been employed as a building maintenance man and an attendant for a mentally ill man. His parents had divorced and his father had died in Canada. His mother, a naturalized U.S. citizen, had migrated to the United States with his step-father, who was also a U.S. citizen. He was the second oldest child and oldest son of his parents’ six children. Most of his siblings had also migrated to the United States; they mostly lived in or near New York City. Boutilier resided in Brooklyn, where he lived with his partner Eugene O’Rourke.

Clive in 1956

Clive, 1956.

Recognizing that the deportation order threatened to upend his life and separate him from his partner and family, Boutilier turned to Robert Brown, the lawyer who had defended him when he was charged with sodomy. Brown referred him to Blanch Freedman, a well-known radical lawyer who had a long record of defending immigrants, leftists, workers, and women. Earlier in the century, Freedman had been an officer of the Women’s Trade Union League. Her law partner Gloria Agrin had assisted in the defense of Julius and Ethel Rosenberg, who were executed by the U.S. government in 1953 for conspiracy to commit espionage. Freedman was a long-time member of the American Committee for the Protection of the Foreign Born, which was founded in 1933 and classified by the U.S. government as a subversive organization in the 1950s and 1960s.

As part of their defense strategy, Brown and Freedman arranged for Boutilier to see two psychiatrists. Dr. Edward Falsey’s 1964 report indicated that Boutilier was not psychotic; Dr. Montague Ullman’s 1965 statement declared that he was not a psychopath. In 1966, Boutilier lost a 2-1 decision by the Second Circuit Court of Appeals; the majority opinion was written by Judge Irving Kaufman, who had presided over the Rosenberg trial. For Boutilier’s appeal to the Supreme Court, Freedman worked with the American and New York Civil Liberties Unions, which submitted a joint friend-of-the-court brief, and the Philadelphia-based Homosexual Law Reform Society, which also submitted a brief. Acting in his official capacity, Solicitor General Thurgood Marshall (the African American civil rights hero and future Supreme Court justice) signed the U.S. government’s briefs against Boutilier. Sadly, Freedman, who was suffering from scleroderma when she presented oral arguments to the Supreme Court on March 14, 1967, died on April 16, 1967, five weeks before the Supreme Court announced its decision in the case.

Boutilier Coney Island early 1960s

Clive’s brother Andrew Boutilier; Andrew’s wife Joyce; Clive; Clive’s partner Eugene O’Rourke, New York City, early 1960s.

Notwithstanding the strong arguments made on Boutilier’s behalf, the Supreme Court voted 6-3 to uphold Boutilier’s deportation. In the majority opinion authored by Associate Justice Tom Clark, the Supreme Court held that Boutilier was excludable and deportable because (1) the evidence of his homosexuality was strong, (2) the intention of the 1952 Immigration and Nationality Act was to exclude and deport alien “homosexuals” as “psychopathic personalities,” (3) the language of the 1952 law was not unconstitutionally vague, (4) the INS and Public Health Service had followed proper procedures, and (5) Congress had the constitutional power to provide for the exclusion and deportation of alien “homosexuals.” For the last of these conclusions, the six justices in the majority cited the precedent of the 1889 Chinese Exclusion Cases. Justices William Brennan, Abe Fortas, and William O. Douglas dissented.

Tragically, twelve days before the Supreme Court ended Boutilier’s four-year legal ordeal on May 22, Boutilier was hit by a car in New York City, leaving him in a coma with traumatic head injuries. Several members of his family believe this was a suicide attempt by Boutilier. Whether or not it was, his lawyer Robert Brown informed the INS about Boutilier’s status and requested a delay in his deportation, which the INS granted. Government records indicate that Boutilier was deported on November 10, 1968. He apparently lived for a time with his mother in Nova Scotia, where she relocated to care for him, and then they both moved to southern Ontario, where one of Boutilier’s sisters lived. Some years later he moved to a group home for people with disabilities in Welland, Ontario. He died there on April 12, 2003.

 

Clive and Brother in Snow 1968

Clive’s brother Andrew (left) and Clive, Nova Scotia, 1968.

After deciding Boutilier v. the Immigration and Naturalization Service in 1967, the Supreme Court did not agree to hear oral arguments in another LGBT rights case (other than obscenity cases) until 1984. The U.S. Congress did not repeal the immigration statute that was used to exclude and deport “homosexuals” as “psychopathic personalities” until 1990, seventeen years after the American Psychiatric Association declassified homosexuality as a mental illness. The Public Health Service, the Immigration and Naturalization Service (later renamed Citizenship and Immigration Services), the U.S. Congress, the U.S. President, and the U.S. Supreme Court have never apologized to the Boutilier family or to other individuals victimized by the U.S. government’s mistreatment of LGBT immigrants.  

Boutilier v. the Immigration and Naturalization Service has much to teach us about the history of LGBT immigration law, LGBT rights activism, and the sexual politics of the Supreme Court in the 1960s. It also can be examined as an important episode in the history of science, medicine, psychology, and disability, along with the history of class, race, gender, and sexuality.

Clive and Brother 1968

Clive’s brother Andrew (left) and Clive, Nova Scotia, 1968.

This exhibit commemorates the 50th anniversary of Boutilier v. the Immigration and Naturalization Service. It has four main features:

  1. First are copies of key legal documents, including the 1966 decision of the Second Circuit Court of Appeals, the U.S. Supreme Court’s transcript of record, the legal briefs submitted to the Supreme Court, the Supreme Court oral arguments, and the Supreme Court’s majority and dissenting opinions.
  2. Second are mainstream and LGBT media stories about Boutilier v. INS. The mainstream media include a wide range of small-town and small-city newspapers in the United States, a few major Canadian newspapers (London Free PressToronto Globe and Mail, and Toronto Star), several special interest publications (American Civil Liberties Union BulletinCivil LibertiesPlayboyPsychology TodaySexology, and Starts and Stripes), and six major urban newspapers and national magazines (Los Angeles TimesNew York TimesPhiladelphia Evening BulletinTimeWall Street Journal, and Washington Post). The LGBT media include Cases in ReviewDaughters of Bilitis New York NewsletterDrumThe Homosexual CitizenJanus Society NewsletterMattachine Midwest Newsletter, and Pride Newsletter.
  3. Third are law review articles about Boutilier v. INS from the 1960s. These include articles published in Catholic University Law ReviewSan Diego Law ReviewNew York University Law ReviewVillanova Law Review, and Temple Law Quarterly.
  4. Fourth is a select bibliography of secondary books and articles (1990-2016). These include works by Margot Canaday, William Eskridge, Eithne Luibhéid, Shannon Minter, Joyce Murdoch and Deb Price, Susana Peña, Ray Sin, Siobhan Somerville, Marc Stein, and William Turner.

Acknowledgements: Research assistance on this project was provided by M.A. history student Michael Hephner at San Francisco State University. Eric Noble, also an M.A. history student at SFSU, assisted with access to legal documents, as did Reference Librarian Tony Pelczynski of the University of California, Hastings College of the Law. Financial support was provided by the Jamie and Phyllis Pasker Chair in U.S. History at SFSU. Outhistory’s Christopher Howard-Woods provided technical assistance. Clive Boutilier’s niece Patti Klatecki and his grand-niece Anita Shunamon generously supplied information, contacts, and photographs.