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II. Sex and Security: A Short History of Exclusions

Richard Adams, a United States citizen, was in love with Anthony Sullivan, an Australian national.  They lived together in Colorado in 1975. With Anthony’s visa about to expire, Adams tried to sponsor him for permanent residency in the U.S.  The written answer of the Immigration and Naturalization Service made its position clear:

Your visa petition…for classification of Anthony Corbett Sullivan as the spouse of a United States citizen [is] denied for the following reasons: You have failed to establish that a bona fide marital relationship can exist between two faggots.24

Three decades later, what has changed?  “Faggot” relationships remain fake within the system.  And even the word resurfaces.  One man wrote us:

While traveling abroad I met the person I would spend the rest of my life with, and eventually start a family with. Bogdan is a citizen of … the former Yugoslavia. Because of both of our countries’ treatment [of] its own gay citizens, it's been impossible to be together at some points. Most of the time I've had to go to Serbia, because after Bogdan tried obtaining a visa at the American Embassy in Belgrade, he was denied, because “they don't give visas to fag couples,” as we were told by the visa officer. … I, being an American, had the preconception that my country was the true land of the free. I guess I was wrong.25

Immigration, Gender, and Sexuality in U.S. History

Lesbian or gay non-citizens trying to join their U.S. partners, and transgender people trying to see their relationships acknowledged, are caught between two forces: escalating panic about “porous” borders, and intensifying battles over the legal status of partnerships between people of the same sex.

These pincers convey an unmistakable message: You do not belong.  Yet neither ferocious anti-immigrant feeling, nor fear of sexuality and sexual “deviance,” is new in U.S. politics or society.  Nor is it novel for them to meet.

The United States has long been schizophrenic about its own immigrant identity.  In the nineteenth century, the U.S. had land, and needed labor.  Early immigrants such as the Irish might face invective and violence, but rarely had to hurdle major legal barriers at the ports where they disembarked.26 The numbers rose; their sources shifted, from northern to southern and eastern Europe.27  From 1860 to 1920, almost thirty million immigrants entered the country, invigorating every part of the nation’s life from literature to cuisine, infusing its culture with their cultures, increasing its population, wealth, and power. 28 Yet, hostility reared to meet them. In the 1880s, as Emma Lazarus famously imagined the Statue of Liberty offering luminous asylum to tired and poor beside the “Golden Door,” that anger showed ominous strength.

The rage involved fears about reproduction: that newcomers—whom one politician called “the ignorant, lawless, idle and dangerous overflow of all other countries”29—would outbreed Anglo-Saxons.  It involved fears about gender: that promiscuous immigrant cultures would erode masculinity and femininity in the middle-class U.S. 

Fantasies about immigrants’ sexualities figured heavily in anti-immigrant prejudice—from pornographic imprecations against Irish convents as scenes for orgies30 to a lurid literature on “white slavery.”31  At the end of the nineteenth century, these bogeymen took on both legal and scientific garb. The 1875 Page Act was the first major federal measure restricting entry; prostitutes were a key category of “undesirables” it excluded, and sensational stories about sex workers from China led to further bans on Chinese immigration.32 Meanwhile, Francis Walker, an influential statistician and superintendent of two successive U.S. censuses, warned of “immigrants from southern Italy, Hungary, Austria, and Russia” who “are beaten men from beaten races; representing the worst failures in the struggle for existence.”33  Yet he saw weaklings paradoxically weakening their betters.  If the “older stock” of Americans lost ground to the invaders, it was because the latecomers actually caused a declining birthrate among the “native-born”:

The appearance of vast numbers of men … with habits repellent to our native people, of an industrial grade suited only to the lowest kind of manual labor, was exactly such a cause as by any student of population would be expected to affect profoundly the growth of the native population. Americans … became increasingly unwilling to bring forth sons and daughters who should be obliged to compete in the market for labor and in the walks of life with those whom they did not recognize as of their own grade and condition.34

The eminent sociologist Edward A. Ross, in 1901, called it “race suicide”:

There is no bloodshed, no violence, no assault of the race that waxes upon the race that wanes.  The higher race quietly and unmurmuringly eliminates itself rather than endure individually the bitter competition it has failed to ward off from itself by collective action.35

President Theodore Roosevelt popularized these ideas and prophesied America’s eclipse through “the elimination instead of the survival of the fittest.”36

Such racist notions played on a distorted Darwinism.  Immigrants became a biological threat, defined by their prolific sexuality and perverse vigor. The emerging pseudo-science of eugenics—the belief that societies should keep the “unfit” from breeding—bolstered anti-immigrant sentiment.37  Not only the crude rural racists of the Ku Klux Klan, but urban intellectuals and self-styled progressives argued that immigration and immigrants' reproduction had to stop.38  Yet underlying all these fears was a deep cultural pessimism, a foreshadowing of doom—ill-at-ease with traditional American optimism, but shared by powerful politicians such as Henry Cabot Lodge as well as writers like Henry and Brooks Adams.  One distinguished historian describes how the latter

used to greet each day by singing a song of his own invention, which consisted entirely of three repeated words: “God damn it! God damn it! God damn it!” For these gentlemen, history was indeed one goddamned thing after another—a steady spiral running downward toward the left, and culminating in some dark catastrophe—lava flowing through the streets of Quincy, or a tidal wave crashing upon Nahant, or a wild-eyed mob of Jews and Irishmen smashing in the doors of the Boston Athenaeum and scribbling madly in the margins of books.39

Groups opposing immigration spread and spawned: a “Race Betterment Foundation,” the “Committee on Selective Immigration,” a “National Committee for Mental Hygiene.”40 The word “hygiene” is suggestive. Immigrants were a racial peril, but also a menace to healthy masculinity, enervating men of the “native stock.”   As one congressman said in 1896, immigration restriction was needed “to preserve the human blood and manhood of the American character by the exclusion of depraved human beings.”41  The proximity of immigrants, with their exuberant, excessive sexuality, jumbled gender relations—producing an “impotent, decadent manhood.”42

One historian suggests that “Working-class and immigrant men, as well as middle-class women, were challenging white middle-class men’s beliefs that they were the ones who should control the nation’s destiny”:

[P]olitics had been viewed as part of the male sphere, as an exclusively male bailiwick… As immigrants wrested political control from middle-class men in one city after another, a very real basis of urban middle-class men’s manhood received both symbolic and material blows.  Immigrant men’s efforts to control urban politics were, in a very real sense, contests of manhood—contests which the immigrants frequently won.43

Madison Grant’s dire and popular 1916 book The Passing of the Great Race, a kind of Brahmin Mein Kampf, mixed many of these themes, fulminating:

We Americans must realize that the altruistic ideals which have controlled our social development during the past century, and the maudlin sentimentalism that has made America “an asylum for the oppressed,” are sweeping the nation toward a racial abyss.  If the Melting Pot is allowed to boil without control …the type of native American of Colonial descent will become as extinct as the Athenian of the age of Pericles.44

And sexual “deviance” came from without.  In 1907, a doctor wrote, “It scarcely needs to be mentioned that Americans frequently blame one or the other [immigrant] group for homosexuality.”45

A sweeping “red scare” took place in 1919-1920, when a federal attorney general and an ambitious aide named J. Edgar Hoover warned that anarchist immigrants intended revolution—and deported hundreds.  Existing fears thus drew new power from the specter of terrorism. From 1917, a new wave of laws restricted immigrant intake.  They culminated in the Immigration Act of 1924.  It clamped an overall numerical cap on immigration; national quotas within that figure were fixed according to percentages of national origin in the U.S. population.   The framers particularly meant to choke the flow from southern and Eastern Europe; immigration from Italy, for instance, plummeted more than twentyfold, from over 200,000 in 1921 to just over 8,000 in 1926.46  The act also effectively ended legal immigration from Asia. One triumphant nativist exulted at the time that it “marks the close of an epoch in the history of the United States.”47 

The golden door Emma Lazarus had lauded slammed shut.

From McCarthyism to the “HIV Ban”

In the 1950s, anxiety gripped American society over the sudden suspicion of homosexuals in its midst—and the sexual hysteria moved in tandem with a new “red scare.”  Homosexuals were seen as susceptible to blackmail, easy to enlist in treason.  Moreover, to the McCarthyite mind, they shared with Communists the qualities of being gregarious yet secretive, concealing their true selves and loyalties, creating coteries and collectives that evaded surveillance.  Republican Senate leader Kenneth Wherry said, “You can’t hardly separate homosexuals from subversives. … A man of low morality is a menace in the government, and they are all tied up together.”48

The panic prompted a campaign to drive homosexuals out of government service, as well as burgeoning and sometimes brutal FBI and police witch-hunts against ordinary people.49  And it saw lesbian and gay immigrants banned from the U.S. by law.  The bar dates from the 1952 Immigration and Nationality Act (INA), pushed through by Senator Pat McCarran of Nevada, a livid anti-Communist crusader.

The bill still stands as the basis for U.S. immigration policy—which it sweepingly revised. Slightly distancing itself from the whites-only past, it reinstated a trickle of Asian immigrants for the first time since 1924 (partly to improve the U.S.’s image as the Cold War militarized the Pacific); but it held to a lopsided bias for northern European groups.  By building into national quotas favorable treatment for immigrants with special skills, and for relatives of people already in the U.S., it laid the groundwork for the employment-based and family-sponsored preference categories of today.50

However, the act also allowed the government to ban people from the country on ideological grounds.51  Moreover, it barred “aliens afflicted with psychopathic personality, epilepsy or mental defect.”52 Congress made clear that this was meant to exclude “homosexuals and sex perverts,” even seeking an opinion from the U.S. Public Health Service that the term was broad enough to do so.53  In 1965, the INA was amended, with new language prohibiting the entry of persons “afflicted with … sexual deviation.”54  With slight variations in the phrasing, for almost forty years the U.S. banned lesbians and gays from entering the country. 

Lesbian and Gay Immigrants in the Courts: A Summary

Despite right-wing claims that “judicial activism” favors lesbian, gay, bisexual, and transgender people, the immigration rights of LGBT people were consistently given scant support in jurisprudence from the 1950s to the 1980s.  However, Hill v INS in 1983 effectively took the teeth out of the Immigration and Nationality Act’s exclusion of lesbian and gay people from the US—and pointed toward the emerging protections for LGBT people’s rights in more recent, non-immigration-related jurisprudence.

Boutilier v Immigration Service, 1967

In this case the Supreme Court decided whether lesbian and gay people were covered by the definition of “psychopathic personality.” Twenty-one year old Clive Boutilier, a Canadian, had moved to the US in 1955 to join his mother, stepfather, and three siblings who already lived there.  In 1963, he applied for U.S. citizenship, admitting that he had been arrested for sodomy in 1959. He was ordered deported.55

The case eventually reached the Supreme Court, which, in a 6-3 decision, upheld his deportation.  The majority found that “Congress was not laying down a clinical test, but an exclusionary standard which it declared to be inclusive of those having homosexual and perverted characteristics … Congress used the phrase ‘psychopathic personality’ not in the clinical sense, but to effectuate its purpose to exclude from entry all homosexuals and other sex perverts.”56  Dissenting, Justice William Douglas observed, “The term ‘psychopathic personality’ is a treacherous one like ‘communist’ or in an earlier day ‘Bolshevik.’ A label of this kind when freely used may mean only an unpopular person.”57

Boutilier was torn from his partner of eight years.  According to one historian, “Presumably distraught about the Court's decision … Boutilier attempted suicide before leaving New York, survived a month-long coma that left him brain-damaged with permanent disabilities, and moved to southern Ontario with his parents, who took on the task of caring for him for more than twenty years.” He died in Canada on April 12, 2003, only weeks before that country at last moved to legalize same-sex marriage.58

Adams v Howerton, 1980

Richard Adams, a U.S. citizen, lived in Colorado with his partner Anthony Sullivan, an Australian national. When Sullivan’s visitor’s visa expired, they persuaded their local county clerk to issue them a marriage license.  Adams then asked the INS to classify Sullivan as his spouse for immigration purposes.59

The INS refused to acknowledge a relationship between “faggots”—as told above.  The case eventually reached the Ninth Circuit Court of Appeals.  The Court addressed two issues: whether for the purposes of immigration, a U.S. citizen’s spouse must be a person of the opposite sex, and, if so, whether such limitation is constitutional. 

The court concluded that Congress had intended to restrict the term “spouse” to opposite-sex married couples.  The court then found that it was within Congress’s plenary power thus to limit access to immigration benefits, stating that the Supreme Court “has upheld the broad power of Congress to determine immigration policy in the face of challenges” based on constitutional claims.60 The Supreme Court refused to hear an appeal.

Hill v INS, 1983

On August 2, 1979, the Surgeon General issued a new policy stating that the U.S. Public Health Service should no longer consider “homosexuality per se to be a ‘mental disease or defect,’” citing “current and generally accepted canons of medical practice with respect to homosexuality.”61  Since the exclusion of homosexuals was based on the Public Health Service’s findings, this created problems for the Immigration and Naturalization Service.  In response, in 1980 the INS issued its own “Guidelines and Procedures for Inspection of Aliens Who Are Suspected of Being Homosexual.”  Non-citizens would no longer be asked about their sexual orientation, but if one admitted to being gay or the fact was revealed during inspection, the INS would not need medical certification.  The admission could be used to deport him or her.

In 1980, Carl Hill, a British citizen, arrived at San Francisco International Airport and told immigration authorities he was gay.  His resulting exclusion led to a court case that came before the Ninth Circuit Court in 1983. The court decided that non-citizens could not be shut out of the country based solely on their own admission to homosexuality.  The law required Public Health Service certification, and the INS could not circumvent this through its own, different guidelines.62

The decision indicated that future denials of entry to homosexuals would face serious legal scrutiny.  However, not until the Immigration Act of 1990 was the issue finally settled: Congress decided that lesbians and gays could no longer be excluded based on their sexual orientation.

The ideological provisions of McCarran’s immigration act finally were repealed in 1990—after denying entry over the years to such figures as Yves Montand, Gabriel Garcia Marquez, and Pierre Trudeau. The same 1990 reform also eliminated the bar against homosexuals and the references to “psychopathic personality or mental defect.” 63 The change in immigration law came late.64  The U.S. was the last industrialized country to cling to a complete ban on homosexuals’ entry.

The 1990 Immigration Act also quietly authorized the Department of Health and Human Services to remove a ban, in effect since 1987, on the entry of foreign nationals with HIV.  When the Clinton administration tried to do so three years later, however, a thunderous backlash ensued—much of it following nineteenth-century channels, identifying immigrants with disease and closed borders with immunity and health.  In 1993, Congress wrote the ban back into law, specifying that excludable conditions “include infection with the etiologic agent for acquired immune deficiency syndrome.”

One observer writes that “The U.S. Immigration and Naturalization Service currently conducts the largest mandatory HIV-testing program in the world.  Every applicant for permanent residence over the age of fifteen is required to undergo HIV testing, and largely without informed consent or pre-and post-testing.”65 Applicants for non-immigrant entry are questioned on their HIV status, and if they admit to being positive, can be refused admission.66  If the government suspects them of HIV infection, it can require an HIV test; people entering the U.S. with HIV medications in their luggage can be questioned or expelled.  Non-immigrants who are HIV-positive can request (and can be denied) a waiver for short trips under limited conditions.  U.S. policy on HIV and travel has been called “one of the most unenlightened in the world.”67

The United Nations International Guidelines on HIV/AIDS and Human Rights note that “There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status.”68  Two experts observe:

HIV is well-established everywhere in the world, and attempts to halt its spread by controlling the movement of infected or potentially infected persons have proven futile and expensive besides causing considerable hardship.69

Preserving the myth that HIV/AIDS is a threat external to the U.S.’s borders, the ban encourages a false sense of safety, damaging public health rather than defending it.  It feeds on, and further feeds, archaic associations between immigration and contamination, the alien and the unclean. Finally, the ban exposes lesbian, gay, bisexual, and transgender immigrants and visitors to particular harassment, given stereotypes which associate them with HIV infection.   The fears that locked the “golden door,” and defined deserving immigrants as “mentally defective,” still run strong.

Defended from What?

On September 10, 1996, by a huge margin, the Senate approved the “Defense of Marriage Act” (DOMA).  Passed in haste, and signed in an almost furtive late-night ceremony by President Clinton ten days later, the measure was an election-year reaction to the possibility that Hawaii might become the first state to recognize equality in civil marriage.  (Seven years later, Massachusetts did.)

The bill did two things.  It declared that no state was obliged to recognize “a relationship between persons of the same sex that is treated as marriage” by any other state or jurisdiction.  And it defined marriage, for all purposes of the federal government, as “only a legal union between one man and one woman as husband and wife.”  The word “spouse” now refers “only to a person of the opposite sex who is a husband or wife.”70

This foreclosed the possibility that foreign, permanent same-sex partners of U.S. citizens could be recognized as “spouses” under current U.S. immigration law.

The constitutionality of DOMA remains uncertain.71  As a panicked reaction to the mere prospect of a state recognizing same-sex relationships, however, it was telling—and foretelling.  Since then, nineteen states have approved constitutional amendments barring equality in civil marriage.72  Some prohibited giving any legal status to relationships other than heterosexual marriage.  The results are devastating.  Ohio’s draconian amendment, for instance, forced a judge in 2005 to void part of the state’s domestic violence law.  He threw out a felony charge against a man accused of abusing his unmarried heterosexual partner—because the state constitution now barred any law or ruling that would “create or recognize a legal status for relationships of unmarried individuals.”73

Amid the furor, President Bush in 2004 endorsed a national constitutional amendment banning equality in marriage.  Many want this to go further, and, like Ohio’s, to bar civil unions and all forms of recognizing unmarried relationships, anywhere in policy or law.74

Lesbian, gay, bisexual, and transgender people’s relationships are thus central, not collateral casualties in a raging culture war. The moral panic reaches beyond them.  “Gay marriage” is a wedge issue, wielded to restrict other forms of personal autonomy.  Most of the groups in the trenches opposing it also fight to eliminate abortion, and many support laws restricting divorce.75  Nearly all agitate for curbs on legal immigration.

Striking in this culture war is the cultural defensiveness: the notion that people who want to enjoy the dignity and benefits of marriage seek to destroy it, or that people who admire the United States and want to enter its borders are inevitably its invading enemies.  The rhetoric of invisible foes, values endangered, redoubts taken, battles lost, is heard everywhere.  It mimics the pessimism of a Francis Walker or a Madison Grant, men who saw lifeways beleaguered by difference. 

Indeed, many anti-immigrant activists sound like time-capsule transmissions from the 1880s or the 1920s, with minor changes.  Then, the aliens who menaced “American values” were largely Slavs, Jews, Italians; now those groups are seen as safely assimilated, and the enemy Other has grown darker and more distant.  But the stereotypes, the fears of sterility and decline, are the same. 76

When lesbian, gay, bisexual, and transgender people’s rights involve the country’s borders, then, the response will likely be furious.  One conservative warned that the Uniting American Families Act “would make the United States a magnet for homosexuals to come to our shores.”77  When a Texas congressman supported the Act, opponents charged him with “allowing homosexuals … a free pass to bypass our immigration laws by bringing over anyone they say is their ‘partner’”—people “who will not only take American jobs but also worsen the AIDS epidemic (including free health care once they get here).”78

In the wake of the September 11 attacks—much as in the 1920s—anxiety over terrorism has twisted all immigration debates. The 2001 Patriot Act revived forms of ideological exclusion.  Anti-terrorist rhetoric insinuates itself into arguments over sexual rights as well.  When the Supreme Court struck down sodomy laws in 2003, Lou Sheldon, a right-wing activist, said, “This is a 9/11, major wake-up call that the enemy is at our doorsteps.”79  When border officials halted a Canadian same-sex married couple because they tried to use the same customs form—like any other spouses—the conservative group Concerned Women for America declared:

Many have feared that lax border security would allow terrorists to easily enter the United States from Canada.  However, U.S. Customs officials at Pearson International Airport in Toronto were able to stop the latest pair of “domestic terrorists.”80

What threat did that family represent?  And what needs to be defended?

[24] Letter from Immigration and Naturalization Service to Richard Adams (Nov. 24, 1975) (in Stephen H. Legomsky, Immigration and Refugee Law and Policy 139, 2nd ed. 1997).

[25] E-mail to Immigration Equality (names withheld or changed at the author’s request), May 29, 2005. 

[26] See John Higham’s magisterial Strangers in the Land: Patterns of American Nativism, 1860-1925 (New York: Atheneum, 1973).  That said, the very first immigration law passed by the U.S. Congress in 1790 had limited entry to “free white” persons.  Nor should the power of prejudice and violence against immigrants in the first half of the century be underestimated.

[27] Immigration from Asia also increased, and encountered particularly savage racism.

[28] Table, “Immigration to the United States: Fiscal Years 1820-2004,” in Yearbook of Immigration Statistics: 2004, at (retrieved February 9, 2006).

[29] Tammany politician George W. Curtis, quoted in Higham, p. 41.

[30] Martha Butt Sherwood’s The Nun, published in the U.S. in 1834, was an early tract claiming that convents were virtual brothels; it helped incite an enraged nativist mob to burn an Ursuline convent in Charlestown, Massachusetts the same year.  Other scandalous volumes, such as  The Awful Disclosures of Maria Monk, as Exhibited in a Narrative of Her Sufferings During a Residence of Five Years as a Novice and Two Years as a Black Nun, in the Hotel Dieu Nunnery in Montreal (published in 1836) fed anti-Irish and anti-Catholic sentiment throughout the century.  See Marie Anne Pagliarini, The Pure American Woman and the Wicked Catholic Priest: An Analysis of Anti-Catholic Literature in Antebellum America,” Religion and American Culture, vol. 9, no. 1 (Winter, 1999), pp. 97-128.

[31] An inflammatory and extensive campaign excited racist fears by charging  immigrants with smuggling European women into the United States, or American women abroad, and forcing them into sex work—so-called “white slavery.”

[32] Eithne Luibheid, Entry Denied: Controlling Sexuality at the Border (Minneapolis: University of Minnesota, 2002), pp. 31-51.  The Chinese Exclusion Act of 1882 imposed overtly racist restrictions on Asian immigration which were progressively tightened in succeeding revisions; it barred all Chinese immigrants from naturalization.

[33] Francis A. Walker, “Restriction of Immigration,” The Atlantic Monthly, vol. 77, no. 464 (June 1896), pp.  822-829.

[34] Ibid.

[35] Edward A. Ross, “The Causes of Race Superiority,” Annals of the American Academy of Political and Social Science, vol. 18 (1901), pp. 67-89.

[36] Theodore Roosevelt, "A Letter from President Roosevelt on Race Suicide," American Monthly Review of Reviews, vol. 35 (1907), p. 550.

[37] See Wendy Kline, Building a Better Race: Gender, Sexuality, and Eugenics from the Turn of the Century to the Baby Boom (Berkeley: University of California, 2001), which also traces ancestral connections between early “scientific racism” and contemporary movements to “defend the family.”

[38] See Donald K. Pickens, Eugenics and the Progressives (Nashville: Vanderbilt University Press), 1968.

[39] David Hackett Fischer, Historians’ Fallacies: Toward a Logic of Historical Thought (New York: Harper, 1970), p. 139.

[40] Annie L. Cot, “’Breed Out the Unfit and Breed In the Fit’: Irving Fisher, Economics, and the Science of Heredity,” American Journal of Economics and Sociology, vol. 64, no. 3 (July 2005).

[41] Congressman John Corliss, quoted in Jeanne Petit, "Breeders, Workers, and Mothers: Gender and the Congressional Literacy Test Debate, 1896-1897," Journal of the Gilded Age and Progressive Era, vol. 3, no. 1 (2004), emphasis added.

[42] Gail Bederman, Manliness and Civilization: A Cultural History of Gender and Race in the United States, 1866-1917 (Chicago: University of Chicago Press, 1996), p. 200.

[43] Ibid., pp.13-15.

[44] Madison Grant, The Passing of the Great Race: Or the Racial Basis of Human History (New York: Scribner’s, 1916), p. 228.

[45] Dr. Charles H. Hughes, quoted in Luibheid, p. 14.

[46] U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1957 (Washington, D.C.: Bureau of the Census, 1960), p. 56.

[47] John B. Trevor, quoted in Higham, Strangers in the Land, p. 324.

[48] Max Lerner, “The Senator and the Purge,” New York Post, July 17, 1950, quoted in Jonathan Katz, Gay American History: Lesbians and Gay Men in the U.S.A. (New York: Harper Colophon, 1976), pp. 95.

[49] See David K.  Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004), as well as John D’Emilio, Sexual Politics,  Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970 (Chicago: University of Chicago Press, 1983), pp. 38-56.  D’Emilio in particular suggests that the “lavender scare,” like the anti-immigrant panics of earlier years, was connected to fears of changing gender roles and family structure, particularly after the shifts of the war years: “Because the war removed large numbers of men and women from familial—and familiar—environments, it freed homosexual eroticism from some of the structural restraints that made it appear marginal and isolated” (p. 38).

[50] Alicia J. Campi, Ph.D., “The McCarran-Walter Act: A Contradictory Legacy on Race, Quotas, and Ideology,” immigration policy brief by the American Immigration Law Foundation, at (retrieved December 26, 2005). See chapter III below for an explanation of these categories.

[51] President Truman vetoed the bill, calling it "neither a fitting instrument for our foreign policy nor a true reflection of what we stand for, at home and abroad, " but Congress easily overrode him.  See Michael Ybarra, Washington Gone Crazy: Senator Pat McCarran and the Great American Communist Hunt (New York: Steerforth, 2004).

[52] Immigration and Nationality Act, § 212(a)(4), 66 Stat. at 182, emphasis added.

[53] The Senate Judiciary Committee had recommended in 1950 that " the classes of mentally defectives” barred from entry in existing legislation “should be enlarged to include homosexuals and other sex perverts" (S. Rep. No. 1515, 81st Cong., 2d Sess., p. 345). The proposed Immigration and Nationality Act thus originally contained an additional phrase expressly providing for the exclusion of aliens "who are homosexuals or sex perverts." These words were omitted from the law as passed, becauseas the Senate Judiciary Committee explained “The Public Health Service has advised that the provision for the exclusion of aliens afflicted with psychopathic personality or a mental defect … is sufficiently broad to provide for the exclusion of homosexuals and sex perverts. This change of nomenclature is not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates" (S. Rep. No. 1137, 82d Cong., 2d Sess., p. 9).  See Boutilier v Immigration Service, Supreme Court of the United States, 387 U.S. 118 (1967).

[54] 1965 Amendments, Pub. L. No. 89-236, 79 Stat. 911 (1965), emphasis added.  The 1965 legislation represented another broad restructuring of immigration.  It finally abolished the 1924 Act’s national quotas: with the civil rights movement combating racism at home, discriminating by national origin no longer seemed compatible with the U.S.’s expressed values.

[55] Chris Duenas,  “Coming to America: The Immigration Obstacle Facing Binational Same-Sex Couples,” Southern California Law Review, vol. 73 (2000), pp. 811–841.

[56] Boutilier v. Immigration Service, Supreme Court of the United States,  387 U.S.118.

[57] Ibid.

[58] Mark Stein, “Forgetting and Remembering a Deported Alien,” History News Network, November 3, 2003, (retrieved December 26, 2005).

[59] Duenas, p. 80.

[60] Adams v. Howerton, Ninth Circuit, 673 F.2d 1038 (1980).

[61] Board of Immigration Appeal, No. A-2420404969, Matter of Hill, quoted from opinion. 

[62] Hill v. INS, Ninth Circuit, 714 F.2d at 1472 (1983).

[63] Robert Foss, “The Demise of the Homosexual Exclusion: New Possibilities for Gay and Lesbian Immigration,” Harvard Civil Rights-Civil Liberties Law Review, vol. 29 (1994), pp. 439-446.

[64] The American Psychological Association had removed homosexuality from its roster of psychiatric disorders in 1973.

[65] Alana Klein, “HIV/AIDS and Immigration: Final Report,”Canadian HIV/AIDS Legal Network, 2001, p. 27.

[66] The language of affliction clearly recalls the ban on people “afflicted with … sexual deviation.”

[67] William B. Rubenstein, Ruth Eisenberg and Lawrence O. Gostin. The Authoritative ACLU Guide to the Rights of People Living with HIV Disease and AIDS  (Carbondale: Southern Illinois University, 1996), p. 315.  The biannual International AIDS Conference, the most important gathering of experts and activists combating the disease, is no longer held in the U.S. because of the ban. The WHO has a policy of not sponsoring international meetings to discuss AIDS in countries with HIV/AIDS-specific short-term travel restrictions.  See World Health Organization. “WHO policy of non-sponsorship of international conferences on AIDS in countries with HIV/AIDS-specific short term travel restrictions,” February 1993, with reference to World Health Assembly Resolution WHA41.24 (1988) (“Avoidance of discrimination in relation to HIV-infected people and people with AIDS”).

[68] Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIV/AIDS and Human Rights-International Guidelines (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva),” U.N. Doc. HR/PUB/98/1, Geneva, 1998.

[69] Josef Decosas and Alix Adrien, quoted in Klein, p. 51.

[70] Defense of Marriage Act, Pub. L. No. 104-199, 100 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C.

[71] Article 4, section 1 of the United States Constitution states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” and that “Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved and the Effect thereof." In a range of decisions, the Supreme Court has not fully clarified the extent to which a state  can decline “full faith and credit” on the grounds of its own strong public policy, or the extent to which Congress’ permitted regulation of “the effect thereof” includes the ability to retract it.  See Paige Chabora, “Congress' Power Under the Full Faith and Credit Clause and the Defense of Marriage Act of 1996,” Nebraska Law Review,  vol. 76  (1997), and Julie L. B. Johnson, “The Meaning of ‘General Laws’: The Extent of Congress's Power Under the Full Faith and Credit Clause and the Constitutionality of the Defense of Marriage Act,” University of Pennsylvania Law Review, vol. 145 (1997).

[72] This includes amendments in Louisiana and Nebraska which have been overturned and are still subject to litigation. 

[73] “Judge: Domestic violence law for marrieds only—Backlash from anti-gay marriage amendment,” Associated Press, March 24, 2005.

[74] See Michael Farris, “Critical Decision on Text of Constitutional Amendment Protecting Marriage,” February 5, 2004, at (retrieved January 2, 2005).

[75] Bridget E. Maher, “Why Marriage Should be Privileged In Public Policy,” Family Research Council, at (retrieved December 15, 2004).  See also “Anti-Gay Groups Active in Massachusetts: A Closer Look,” National Gay and Lesbian Task Force, at (retrieved November 11, 2004).  The same paper points out that the website of Concerned Women for America, a powerful conservative group that describes itself as a “public policy women’s organization,” “had 602 documents on its website that contained the word ‘homosexual,’ but only 97 referring to ‘health care,’ 80 with the word ‘poverty’ … and six containing ‘child support.’” Only seventy-one documents referred to “rape,” nineteen to “domestic violence,” and none at all to “pay equity.”  Ibid., p. 15.

[76] David H. Bennett, Party of Fear: From Nativist Movements to the New Right in American History (New York: Knopf, 1995) argues for direct continuity between nineteenth-century racism and xenophobia and contemporary anti-immigrant and fundamentalist movements. In the present day, Pat Buchanan blames U.S. “decline” on immigrants: “America is ceasing to be one country.” But gender and sexuality propel population shifts.  The problem, he says, is Western women: “We know how they are not having children—birth control or abortion or sterilization or whatever. But the reasons why are the economy and culture and feminism, and the women are doing what they want to do. I don't know how politically, in a democratic society … we can force changes upon women and upon men as well. But I do have some ideas …” “How the West was lost: Pat Buchanan discusses his new book with Geoff Metcalf,” World Net Daily, December 23, 2001, at (retrieved January 4, 2003).

[77] Robert Knight, director of the Culture and Family Institute of Concerned Women for America, quoted in Jeff Johnson, “Congressman Promotes Immigration Privileges for Homosexuals,” Christian News Service, at (retrieved October 31, 2004).

[78] Tom Owens, “Why Rep. Nick Lampson is ‘Bought and Paid For’ by the Homosexual Lobby,” at, and “The Shocking Truth about Nick Lampson’s Connections to the Homosexual Lobby,” mailing distributed to voters, at (retrieved November 25, 2005).  The UAFA in no way offers “free health care” or any other benefit save immigration recognition.

[79] Quoted in Robert B. Bluey, “Court's Ruling on Sodomy Fuels Fight for Same-Sex Marriage,” Christian News Service, June 27, 2003, at (retrieved June 28, 2003).

[80] James Kimball, “Homosexuals Pose New Threat to U.S. Border Security,” press release from Concerned Women for America, September 24, 2003, at (retrieved September 25, 2003).

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