Forgetting and Remembering a Deported Alien

As far as we know, he came to the United States with his family from an economically troubled region of a U.S. ally, hoping for a better life. But he arrived at a time when the U.S. government was targetting a variety of imagined domestic and foreign enemies and was waging cold and hot wars at home and abroad. He was 21-years-old when he became a permanent resident of the United States and over the next decade he worked, lived, bowled, and prayed in New York. There he eventually came to share an apartment with a friend in the same Brooklyn building where his mother and stepfather lived. Two of his brothers served in the U.S. military; several of his siblings settled in the United States, married, and had children. He spoke English. As his lawyers would later make sure to emphasize, in many respects he was a model U.S. immigrant when evaluated according to dominant U.S. values. A few years after coming to the United States he was arrested for a sexual offense with a 17-year-old, but when the complainant refused to cooperate with the authorities the charges were dismissed. The more significant troubles began when he applied for citizenship and mentioned the arrest.

His name was Clive Michael Boutilier, born in Nova Scotia in 1933, and in 1967 six of nine members of the U.S. Supreme Court upheld his deportation back to Canada on the grounds that he had been excludable at the time of his original entry. According to the Court, Congress intended to exclude homosexuals under the psychopathic personality provisions of the 1952 Immigration and Nationality Act, and the Immigration and Naturalization Service (INS) was not violating Boutilier's rights by deporting him. As Justice Tom Clark stated for the majority, "Congress used the phrase 'psychopathic personality'...to effectuate its purpose to exclude from entry all homosexuals and other sex perverts." In dissent, Justice William O. Douglas replied, "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."

According to one of his relatives, Boutilier died of complications related to a heart condition on 12 April 2003. More than six months have passed and there has yet to be an obituary in the U.S. or Canadian press (including the gay press). His death occurred about eight weeks before an appeals court in Ontario ruled that current Canadian marriage laws discriminate against homosexuals and about 11 weeks before the U.S. Supreme Court (in Lawrence v. Texas) issued a ruling striking down state sodomy laws as unconstitutional.

Boutilier apparently had a very difficult life after the Supreme Court ruled against him. Presumably distraught about the Court's decision in 1967, 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 20 years.

In his final decade he resided in group homes for the disabled, reportedly remembering his former "lifestyle." "I am sure," writes a member of his family, "that [his mother] drummed it into his head that what happened was to never be brought into the light of day ever again." U.S. historians have apparently shared that agenda with Boutilier's mother, ignoring one of the Supreme Court's first major gay rights rulings and an important immigration rights ruling as well. Instead, when looking at this period in U.S. history, scholars have generally highlighted the Court's sexually "liberalizing" rulings in birth control, obscenity, interracial marriage, and abortion cases and the Congress's racially "liberalizing" immigration reforms.

In the context of litigation concerning the 1952 immigration act's provisions, Congress tried to clarify its intentions in 1965, when it specifically excluded immigrants with "sexual deviations" along with those afflicted with "psychopathic personalities." These restrictions remained on the books until 1990, when they were eliminated at the same time that new procedures allowed the INS to exclude people with HIV and/or AIDS.

As the United States experiences another period in which immigrants and aliens are particularly vulnerable to the racial, religious, linguistic, class, gender, and sexual prejudices of U.S. policymakers and government officials, there is much to be learned by studying the alliances and arguments that formed around Boutilier more than 35 years ago. Among the leading figures who opposed Boutilier were: 2nd Circuit Court of Appeals Judge Irving Kaufman, who had sentenced Julius and Ethel Rosenberg to death in the 1950s and who wrote his court's majority opinion against Boutilier in 1966; Solicitor General Thurgood Marshall, who betrayed his civil rights credentials by signing the government's brief against Boutilier; and Justice Clark, who had presided over the internment of Japanese American and other citizens and aliens during World War Two.

Boutilier was supported by the Philadelphia-based Homosexual Law Reform Society, a long-forgotten organization that funded his appeal and submitted a brief to the Supreme Court (the Society was later destroyed in a campaign of state repression against the gay movement), the American Civil Liberties Union, which also submitted a brief, and his lawyer Blanch Freedman, who was affiliated with the American Committee for the Protection of the Foreign Born and was the law partner of Gloria Angrin, who had worked on the Rosenbergs' defense team and on the post-execution custody cases involving the Rosenbergs' two sons.

These advocates, in making arguments about Boutilier's respectable characteristics, risked winning the kind of limited second-class victory that was recently achieved in Lawrence. For example, Boutilier's supporters, by emphasizing the limited extent of Boutilier's sexual experiences, the fact that he had also had heterosexual sex, and the private nature of his sexual encounters, might have worsened the situation for people with extensive same-sex sexual experiences, those who were exclusively homosexual, and those who engaged in public displays of same-sex affection. Gay-supportive critics of Lawrence have begun to express similar concerns about that ruling, in which Justice Anthony Kennedy emphasized the rights of adult homosexuals in relationships to have sex with their partners in their private homes. This reasoning could be used to argue against forms of public sexual equality and types of sexual activity that exceed the bounds of committed relationships.

Nevertheless, the alliances that formed between civil libertarians, sexual rights activists, and immigrant advocates in Boutilier offered an important challenge to the unjust policing of U.S. borders in the 1960s. Remembering Boutilier today should remind various constituencies, including gay, lesbian, bisexual, and transgendered people; women; immigrants; ethnic, linguistic, racial, and religious minorities; and disabled people that their causes and interests are linked. Only a strong coalition of political forces has the potential to stop today's unjust exclusions, detentions, and deportations, which are raising the level of national insecurity in the United States to new heights.