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Psychologyís Role in the Legal Stigmatization of Homosexuals: A Review of Courting Justice by Joyce Murdock and Deb Price

By Elaine Cassel

At one time, the Diagnostic and Statistical Manual of Mental Disorders classified homosexuality as a mental disorder. This fact, along with social and religious approbation of homosexuals, gave the law plenty of ammunition to prosecute criminally and discriminate against gays and lesbians. Two journalists, themselves lesbian partners, chronicle the U.S. Supreme Courtís treatment of homosexuals in their book, Courting Justice: Gay Men and Lesbians v. The Supreme Court (Basic Books, 2001).

In the 1950s, gay men and women were a feared and hated population in the United States. The cold war gave FBI director J. Edgar Hoover, whom some think was gay, an excuse to target homosexual government employees for removal from their jobs merely because they were gay. The Immigration and Nationalization Service (INS) followed his lead by arresting homosexuals for deportation. Federal regulations supported closing the U.S. borders to gays. The U.S. Postal Service, tipped off by the FBI and INS, snooped and seized the mail of known homosexuals, in an effort to identify the publishers of gay magazines who, in turn, were prosecuted for sending obscene materials through the mail.

It was not just a government plot. The American Psychiatric Association provided plenty of fuel to fan the flames of bigotry. Though this diagnosis was removed from subsequent editions of the DSM, its 1952 classification of homosexuality as a mental illness was a powerful weapon in the fight to remove gays from government jobs and to censor books, magazines, and films depicting gay sex as promoting sickness, insanity, and a deviant lifestyle.

Reporters Joyce Murdoch and Deb Price, themselves a gay couple, tell the story of the U.S. Supreme Courtís rulings in cases involving gays from the 1950s, beginning with the case of ONE, Inc. v. Olesen, Postmaster of Los Angeles through the 2000 decision in Boy Scouts of America v. James Dale. Because the first amendmentís freedom of speech has enjoyed virtual sacrosanct protection from the Supreme Court, regardless of political makeup, the gay magazine ONE was found not to be objectionable under the Courtís narrow obscenity standards.

But the Court gave individuals far less protection than media. A Georgia law that criminalized consenting sex between gay men was upheld in Bowers v. Hardwick, after then Justice Powell was convinced by Chief Justice Warren Burger to change his vote to uphold the law (a decision that Justice Powell later noted was his one regrettable decision while on the Court). A NASA astronautís job loss (stemming from the Civil Service Commission rules that homosexual conduct was immoral behavior unfitting a federal employee) was upheld in Kameny v. Brucker. Though Swiss immigrant George Fleutiís order of deportation on grounds of "suspicion of being a homosexual" was overturned in Rosenberg v. Fleuti, the INS did not let up on its efforts to deport homosexuals, and immigrants not able to afford high-priced counsel were sent to their former homes.

At the heart of these early cases was the DSM diagnosis of homosexuality as a mental disorder, and the fact that "psychopathic personality," now a term for someone with antisocial personality disorder features as well as a propensity to be a danger to others, was often used synonymously with homosexuality. Psychiatrists testified in court that homosexuals were unstable mentally and potentially dangerous predators of young boys (a misunderstanding that today persists, as homosexuals are often accused of being pedophiles). A Maryland teacher was fired when it was learned he was gay and, in 1974, the Supreme Court refused to hear his appeal (Acanfora v. Board of Education of Montgomery County). Pediatricians and mental health professionals testified in his trial that he would turn eighth graders into homosexuals. His own mental health expertís insistence that Acanforaís sexual orientation was fixed at an early age and should not be grounds for removing him from the classroom was rejected. The Supreme Court denied Acanforaís appeal, and he never taught again.

Some state and federal laws prohibit discrimination against gays in employment, but certain employers, and the U.S. military, can exclude openly gay people from their ranks. Homosexuals can be denied a security clearance that is necessary for jobs in intelligence and other high-level government work. It is still a crime in most states for homosexuals to engage in sexual conduct; the same conduct that is legal for heterosexuals could land a homosexual in jail.

Legal historian and Stanford University Law Professor Lawrence Friedman says that a countryís legal history is also its social history (American Law in the Twentieth Century, 2002). Courting Justice shows how the legal system follows societyís values of what is and what is not acceptable norms for behavior. Social psychologists help us understand how norms sometimes arise as a result of misunderstanding. Though the fear and loathing of gays have somewhat diminished today, large segments of the U.S. population still consider that gay people are dangerous, abnormal, or unstable, a misguided notion given what we know today. Many mainstream religious denominations charge that being gay is a sin. The U.S. military has held firm that gays must not disclose their "gayness," or they will be discharged (known as the "Donít ask, donít tell" rule).

Psychology, which helps explain stigmatization and ostracization, helped to perpetuate it towards homosexuals. Even though psychologists and psychiatrists now seem to agree that sexual orientation is not a "choice" but something that is fixed and engrained (its origins are not clearly understood), their part in demonizing homosexuality still survives in the hearts and minds of many individuals and employers, as well as in legal decisions that continue to deny to gay people the rights that heterosexuals take for granted.

Elaine Cassel, Marymount University and Lord Fairfax Community College

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