Posted by: Catherine Lugg | December 14, 2010

Chief Justice Earl Warren, homophobe

or so say legal scholars William N. Eskridge, Jr. and John Ferejohn in their new book, “A republic of statues: The new American constitution.” Sandy Levinson has a terrific blog post on their new book.

Warren, who was Chief Justice of the US Supreme Court from 1953 until 1969, was also the former Gov. of California. He is beloved by most liberals and progressives for his leadership on the court regarding racial justice. Warren was the author of the seminal Brown v. Board decisions (1954, 1955), which overturned de jure racial segregation. That said, Warren had his blind spots, and he had a truly special hatred for queers.

As Levinson observes:

One of the chapters is about “The Anti-Homosexual Constitution and Its Dis-Entrenchment,” which is extremely illuminating. One of the things I learned is the extent to which Earl Warren as the “liberal” governor of California, not only advocated the roundup legitimized in Korematsu, which is well-known and discussed by all of Warren’s biographers (as something that must be “explained” even if not justified), but also participated in the efforts to engage in what might well be called the legal terrorization of gays and lesbians in California in the ’40s. I was totally unaware of this. I suggested that the lack of attention previously paid to this aspect of Warren’s career is evidence of the extent to which “we” simply accept as “normal” the repression directed at gays and lesbians until all too recently in our history.

This is problem of writing “heroic history.” Most human beings have their faults, and sometimes they are truly nasty ones. Too many times, historians and biographers will skate over some ugliness when their “hero” turn out to be a total schmuck. Such has been the case with Earl Warren, who appears to have been a professional homophobe. I suspect Eskridge and Ferejohn’s book also explains some of the weirdness with the Court’s Boutilier decision (Boutilier v. INS, 1967), which involved a gay man who was French Canadian. The US Supreme Court upheld the deportation orders for Clive Boutilier because, as an out gay man, he was declared mentally ill. The Court’s majority ruled that Boutilier had a “psychopathic personality” and consequently he was unfit to immigrate to the US. The language of the majority is just completely over the top. Most worrisome, as of 2010 it is still “good law,” since it has never been challenged, much less overturned.

The Eskridge and Ferejohn book is going to shake up the legal and historical communities. I know what I’m doing with some of my gift cards….

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