Gerry B's Book Reviews

From the Closet to the Courtroom: Five LGBT Rights Lawsuits that have Changed Our Nation, by Carlos A. Ball

It is a truly fascinating study, superbly researched, and remarkably readable in spite of being a complex topic.

 *Non-fiction books of this nature do not fit the star-rating system.

Publisher’s Blurb: The advancement of LGBT rights has occurred through struggles large and small-on the streets, around kitchen tables, and on the Web. Lawsuits have also played a vital role in propelling the movement forward, and behind every case is a human story: a landlord in New York seeks to evict a gay man from his home after his partner of ten years dies of AIDS; school officials in Wisconsin look the other way as a gay teenager is repeatedly and viciously harassed by other students; a lesbian couple appears unexpectedly at a clerk’s office in Hawaii seeking a marriage license.
Engaging and largely untold, From the Closet to the Courtroom explores how five pivotal lawsuits have altered LGBT history. Beginning each case narrative at the center-with the litigants and their lawyers-law professor Carlos Ball follows the stories behind each crucial lawsuit. He traces the parties from their communities to the courtroom, while deftly weaving in rich sociohistorical context and analyzing the lasting legal and political impact of each judicial outcome.
Over the last twenty years, no group of attorneys has helped to transform this country more than LGBT rights lawyers, and surprisingly, their collective accomplishments have received relatively little attention. Ball remedies that by exploring how a band of largely unheralded civil rights lawyers have attained remarkable legal victories through skill, creativity, and perseverance.
In this richly layered and multifaceted account, Ball vividly documents how these judicial victories have significantly altered LGBT lives today in ways that were unimaginable only a generation ago.

About the Author: Professor Ball received his B.A. summa cum laude from Tufts University, his J.D. from Columbia Law School, where he was a Kent Scholar and the book reviews editor of the Columbia Law Review, and his LL.M. from Cambridge University, where he was awarded a “First.” He clerked for Chief Justice Paul Liacos of the Massachusetts Supreme Judicial Court and worked as a lawyer for the Legal Aid Society in New York City in the early 1990s. He joined the law school in 2008 after teaching at the University of Illinois College of Law for eight years and at the Penn State University School of Law for five. 
Professor Ball is also the author of The Morality of Gay Rights: An Exploration in Political Philosophy (Routledge, 2003), and co-author of Cases and Materials on Sexual Orientation and the Law (West, 2008).

 

Review by Gerry Burnie

If I were putting together a mini-course on the social history of GLBT discrimination in North America, I would definitely include Gay American History: Lesbian and gay men in U.S.A.- Johathan Katz , and Carlos A Ball’s, From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation [Beacon Press, 2010]. Moreover, at the risk of coming across as a ‘missionary’ for the cause, these two seminal works should be put on every GLBT individual’s ‘must-read’ list.

When reviewing a book of this nature it is necessary to say from the outset that one cannot possibly do justice to the amount of research and detail contained therein, in a few words. This is particularly so when dealing with a topic like constitutional law—probably one of the most complex but fascinating of all the areas of law. Nor should a review like this be read as authoritative in any way—i.e. the opinions expressed are not legal opinions.

Having said that, however, Professor Ball writes in a very readable style for legals as well as those with no legal training whatsoever. Therefore, the fact that it deals with law and judicial interpretation should not deter the average reader from reading and enjoying—and learning from—this important work.

To accommodate the space available, what follows is a sample of some of the cases covered, and a more detailed summary of one of them. You may want to take note of the dates to appreciate the fact that these legal break-throughs have been relatively recent in coming.

Harassment

Jamie Nabozny was a seventh-grader (age 11, 1988) when the harassment started with some of his school peers taunting him with words like “faggot” and “queer.” The harassment grew progressively worse over a four-year period—including one instance where he was knocked into the urinal in the boys’ washroom, and then peed on—and culminated in finding himself lying on the floor of his school’s library as a boy repeatedly kicked him in the stomach while other kids cheered. During these intervening years Jamie and his parents complained on countless occasions to the school administrators. However, the officials refused to get involved; in fact, no student was ever disciplined for verbally or physically harassing Jamie.

In 1993 (now a university student)  Jamie contacted a lawyer who filed a complaint again the school district, the two principals involved, and the assistant principal, on the basis that school officials had refused to take the necessary steps to protect Jamie from harassment because he was gay. It also alleged sex discrimination by contending that school officials would have responded differently to the harassment had Jamie been a girl (records showed that one of the boys who had tormented Jamie had been suspended for calling his girlfriend a bad name). 

The Federal Court, however, ruled that there was no evidence suggesting that Jamie had been treated differently because of his sex.

It was then that Jamie contact Lambda lawyer Patricia Logue, and although no student had ever succeeded in suing school officials for failing to protect him or her from anti-gay harassment, the facts in Jamie’s case were so compelling that the lawsuit might serve as a test case for the benefit of other GLBT youth across the country.

Logue therefore argued before the U.S. Court of Appeals that government officials (i.e. the school district, school principals and vice-principal), for discriminatory reasons, had failed to provide him with the protection from violence and harassment to which he was entitled under law. She also told the court that the defendants had discriminated against Jamie both because he was gay, and because he was a boy.

Jamie had offered evidence of such discrimination, including his contention that school officials had told him on several occasions that he was to blame for the harassment because he insisted on being openly gay in school.

Logue also pointed out that it was difficult to imagine that the school officials would have ignored the level of abuse and harassment to which Jamie was subjected if he had have been a girl.

The outcome of the U.S. Court of Appeals appeal was that the three-judge panel agreed with the appellants (Logue and Nabozny) and ordered a new trial.

Now that the case was going to trial (before a jury) it was decided to add an experienced litigation lawyer to the team, and David Springer (an HIV positive individual) signed on to represent Jamie in the fall of 1996.

At the trial the lawyer for the school board’s insurance company argued that the officials were all basically good people, and that these experienced professionals had no recollection of Jamie Nabozny or of his complaints; therefore, the alleged complaints were a “pack of lies.” However the issue was not whether the defendants were good or bad people. Instead, the case was about whether the defendants had failed to address antigay harassment against a gay boy in the same way that they had in the past treated harassment against heterosexual girls. Moreover, the apparent inability of the defendants to recall anything related to Jamie Nabozny whil he attended their schools, including incidents of serious physical assaults was just not credible.

After deliberating for just under four hours the jury returned a unanimous verdict that the school officials had intentionally discriminated against Jamie because he was a gay boy.

The impact: To emphasize the impact of the Nabozny decision, the author quotes several studies that attempted to bring attention to the prevalence of antigay harassment in American public schools. For example, a 1993 survey of Massachusetts high school students reported that 98 percent had heard homophobic remarks at school and that more than half had heard school staff were five time more likely to have missed school on account of safety concerns, and four times more likely to have attempted suicide than straight students.

Professor Ball points out that it is not an exaggeration to say that the Nabozny lawsuit changed much of that when the news media reported the almost $1 million settlement, and school officials across the country scrambled to prevent what happened to Jamie from being repeated. In addition, insurance companies were now insisting that their policy-holding schools implement programs to prevent multi-million dollar, antigay lawsuits.

Family

When Leslie Blanchard died of AIDS (September, 1986) at Newark, New Jersey, he did so in the arms of his partner of ten years, Miguel Braschi. As loving partners the two men had lived together in a rent-controlled apartment in Manhattan, with only Blanchard’s name on the lease. sHowever, three months after Blanchard died the landlord threatened Braschi with eviction because he was not a “surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant.

As far as the landlord was concerned, Braschi was not Blanchard’s spouse nor a member of his family. He was therefore not legally entitled to remain in the apartment after Blanchard died. However, although none of the precedent cases had gone to appellate courts, the cases nonetheless showed a tendency to recognize committed same-sex relationships with deceased tenants were entitled to anti-eviction protection.

The job of ACLU [American Civil Liberties Union] lawyer, Bill Rubenstein, was to show he appellate court that it was appropriate and necessary to define the meaning of family functionally by focussing on the extent of the emotional and financial interdependence of the parties rather than formalistically by focussing on whether the parties were linked through ties of marriage, blood, or adoption.

In the end the court did what Rubenstein had asked it to do by rejecting a definition of family that only looked to whether the individuals have “formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order.”  Furthermore, it went on to say:

[T]he intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.

The impact: One of the beneficial things that the Braschi case achieved was that the highest court in New York provided considerable legitimacy to the claim the GLBT were as capable of forming loving and lasting familial ties as were straight people.

Marriage

Glenora Dancel and Nina Baehr were born in Honolulu in 1960. Some years later (1990), after discovering their sexual orientation as lesbians, they met, fell in love, and made a decision to get married. At almost the same time Baehr had to be rushed to the hospital regarding a serious infection, and because she had no health insurance Dancel later tried to add Baehr to her employer’s health insurance. That is when she learned that such a benefit was available only to the spouse and children of employee. She also tried to buy life insurance and name Baehr as beneficiary but was told the beneficiary could only be someone related to her be blood, marriage, or adoption. Nor was it possible for same-sex partners to register as domestic partners because domestic partners were not recognized under Hawaiian law. This meant, basically, that a serious illness could mean bankruptcy, and if either one of them was hospitalized the other could be denied the right to visit or to help make decisions about their treatment.

American laws criminalizing same-sex conduct goes back to colonial times, but it was only in the 1990s that some states started to prohibit the recognition of same-sex relationships as marital. Up until this time the courts had taken the position that thee plaintiffs were denied the opportunity to marry not because of their sex, but “because of the recognized definition of that relationship as one entered into only by persons who are members of the opposite sex.”

At issue:  Lawyers Evan Wolfson of Lambda, and Daniel Foley—a non-gay, ACLU advocate—saw the pursuit of marriage equality as the most effective way of changing the terms of debate over GLBT issues—i.e. putting the relationships and families of GLBT people front and centre, show there was just as much love and devotion there as with straight relationships.

The outcome: After the state court had rejected the initial lawsuit, the case was then appealed to the U.S. Court of Appeals (1992) by Wolfson and Foley, and as part of its reasoning the Court held that the plaintiff’s legal challenge had nothing to do with sexual orientation. In its opinion  that “homosexuality and same-sex marriages are not synonymous” because under the law of Hawaii a gay person could marry someone of thee opposite sex while a straight person could not marry someone of the same sex. This showed that they Hawaii’s marriage law classified individuals according to their sex and not their sexual orientation—something that was clearly wrong.

As mentioned above, these are just a sampling of the important milestones that have been achieved by courageous individuals willing to ‘stand-up and be seen’ for the good of the movement, and the very fine lawyers who gave of their talents in the pursuit of justice for all. It is a truly fascinating study, superbly researched, and remarkably readable in spite of being a complex topic.

 

See Journey to Big Sky by Gerry Burnie

July 11, 2010 Posted by | Gay Literature, Non-fiction | Leave a comment

Coming Out Under Fire: The History of Gay Men and Women in World War Two, by Allan Bérubé

 

Edition of Gerry B’s Book Reviews

 

  

Some interesting facts

  • Remembrance Day was originally known as “Armistice Day”
  • In Canada it became Remembrance Day by Act of Parliament in 1931.
  • It is known by our neighbours and allies to the south as “Veteran’s Day”.
  • The poppy is the symbol that individuals use to show that they remember those who fought and died in the service of their country.
  • The idea of the poppy originated with the 1915 poem “In Flanders Field” by Lieutenant-Colonel John McCrae, a Canadian Medical Officer in the First World War. His poem reflects his first hand account of what he witnessed while working from a dressing station on the bank of the Yser Canal.
  • An American woman, Moina Michael, was the first person known to have worn a poppy in remembrance.

If you never read another historical account of this era, read this one! Outstanding!

  

coming out under fire - coverStory blurb: This major study chronicles the struggle of homosexuals in the U.S. military during WW II who found themselves fighting on two fronts: against the Axis and against their own authorities who took extreme measures to stigmatize them as unfit to serve their country. From 1941 to 1945, more than 9000 gay servicemen and women purportedly were diagnosed as sexual psychopaths and given “undesirable” discharges. Based on documents obtained under the Freedom of Information Act, augmented by 75 interviews with gay male and female veterans, social historian Berube recounts the purges in the military into the Cold War era when homosexuality was officially equated with sin, crime and sickness. The book reveals that the first public challenge to the military’s policy came not from the gay-rights movement but from military psychiatrists who studied gay servicemen and women during World War II. This evenhanded study brings into sharp focus an important chapter in American social history.

About the author: Allan Ronald Bérubé (December 3, 1946 – December 11, 2007) was an American historian, activist,independent scholar, self-described “community-based” researcher and college drop-out, and award-winning author, best known for his research and writing about homosexual members of the American Armed Forces during World War II He also wrote essays about the intersection of class and race in gay culture, and about growing up in a poor, working class family, his French-Canadian roots, and about his experience of anti-AIDS activism.

Coming Out Under Fire earned Bérubé the Lambda Literary Award for outstanding Gay Men’s Nonfiction book of 1990 and was later adapted as a film in 1994, narrated by Salome Jens and Max Cole, with a screenplay by Bérubé and the film’s director, Arthur Dong. The film received a Peabody Award for excellence in documentary media in 1995. Bérubé received a MacArthur Fellowship (often called the “genius grant”) from the John D. and Catherine T. MacArthur Foundation in 1996. He received a Rockefeller grant from the Center for Lesbian and Gay Studies in 1994 to research a book on the Marine Cooks and Stewards Union, and he was working on this book at the time of his death. From Wikipedia, the free encyclopedia.

Review by Gerry Burnie

If I were asked to design a definitive course on the history of Gays and Lesbians in North America, I would include three books  as required reading: Gay  American History, by  Jonathon Katz; From  the Closet to the Courtroom, by  Carlos Ball; and Coming out Under Fire, by  Allan Bérubé [Free Press, 1990]. Moreover, I think the students would thank me afterward  for choosing books that are authoritative, informative and relatively easy to  read.

For me personally, Allan Bérubé’s seminal work represents an eye-opener like few others I have read. Indeed, I was moved from profound sadness to outright rage when I learned the systematic
persecution that these innocent men and women had to endure in the service of their country. That, perhaps, is the greatest benefit that this retrospective can provide, for those who cannot
remember the past are condemned to repeat it
.

The following is a précis of Bérubé’s thesis, but it is by no means complete or in depth. To really appreciate the full story of coming out under fire I urge you to read the original.

***

When the  war clouds started to descend over Europe in the 1930s the United States  military did not exceed two hundred thousand soldiers, and so to overcome this Congress  passed the nation’s first peacetime conscription act. Consequently, conscripts began to fill the Army’s ranks in astonishing numbers (16 million in 1940-41).

With so many men available, the armed forces decided to exclude certain groups, including women, blacks, and—following  the advice of psychiatrists—homosexuals (although this term was not yet widely used).  Traditionally the military had  never officially excluded homosexuals, but in World War II a dramatic change occurred.  Seeing a chance to advance their prestige, influence, and legitimacy of their  profession, psychiatrists promoted screening as a means of reducing psychiatric casualties before they became military responsibilities.

In 1941, therefore, the Army issued a  directive which disqualified “homosexual proclivities” as a “psychopathic personality  disorder.”  This was in keeping with the  prevailing belief that homosexuality was a neurological disorder—i.e. the first  signs of a brain-disease caused by heredity, trauma, or bad habits such as  masturbation, drunkenness and drug addiction.

Moreover, the military encased this  idea in “characteristics that were considered inferior or “degenerative” by  virtue of their deviation from the generally white, middle-class, and
native-born norm.” (Location 536).

“The  framers of the Army’s interwar physical standards listed feminine  characteristics among the “stigmata of degeneration” that made a man unfit for  military service. Males with a “degenerative physique,” the regulation explained,  “may present the general body conformation of the opposite sex, with sloping  narrow shoulders, broad hips, excessive pectoral and public adipose [fat]  deposits, with lack of masculine hirsute [hair] and muscular markings.”” (Location 536).

Bérubé then goes on to explain, “The  reason for excluding these as psychopaths was that, like other men in this “wastebasket”  category, they were considered to be irresponsible troublemakers who were  unable to control their desires or learn from their mistakes and thus  threatened the other men.” (Location 568).

To make matters worse, this sort of quackery  was widely promulgated in training seminars for recruiters and physicians  throughout the United States, and even published in medical journals for wider  distribution.

On the other hand, because of women’s marginal status in the military prior to WWII, neither the Army nor the Navy had developed policies and procedures concerning lesbians. Therefore, women
recruits were never asked the homosexual question, and were therefore able to enter the military undetected.

After Pearl Harbor was bombed, however, the rules were relaxed to accommodate the demands of war, and the military was forced to accept and integrate most gay selectees. In fact, it was privately  acknowledged that gay men had become vital members of the armed forces. Moreover, the gay recruits found ways to fit in and even to form close and lasting relationships with “buddies.”

Sexual activity was at a minimum until the recruits learned the rules, and then discrete opportunities could be found where there was a will.

“Not all trainees who approached other men for sex were gay. Heterosexual recruits who had had the most sexual experience with women or who felt strong sex drives could initiate sex without being afraid that they were queer, especially if their partner was gay and played the “passive” role. Teenage recruits who were just fooling around with each other, especially if they had been drinking, found themselves unexpectedly becoming sexual. Some older soldiers with more sexual experience in the military taught younger men how to have sex without getting caught. On the other hand, recruits who knew they were gay before entering the service were sometimes the most reluctant to have sex.” (Location 1103).

Meanwhile, Army and Navy officials struggled with how to manage the homosexual behaviour, and several approaches were developed. When challenged from the outside, particularly by concerned
parents or clergy, their public stance was to condemn behaviour considered to be immoral in the wider culture, including  profanity, drunkenness, erotic pictures, extramarital sex, lesbianism, homosexuality, and prostitution. Within the organization, however, military officials took a more understanding approach—forced into it by the need to hang onto trained personnel.

Trainees usually learned on their own how to put up with one another’s differences in order to get through basic training. They also received pleas for tolerance from the war propaganda which
portrayed American soldiers as defending the ideals of democracy, equality, and freedom against the totalitarian Axis. But inspired more by necessity than idealism, male trainees responded to the demands of basic training by developing their own pragmatic ethic of tolerance: “I won’t bother you if you don’t bother me.”

One of the areas where blatant effeminacy was tolerated—even applauded—was in the “all-soldier variety show.” These began as a diversion, but soon became a popular form of frontline entertainment even under fire. These were all-male shows to entertain each other that almost always  featured female impersonation, and coincidentally provided a temporary refuge for gay males to let their hair down and entertain their fellows.

“The impulse to put on shows and perform in dresses generally came from the men themselves—soldiers without women, as well as gay men, had long traditions of spontaneously dressing up in women’s clothes. But during World War II, the military officials, pressured by GIs, their own morale personnel, and leaders in the civilian theatre world …found themselves not only tolerating makeshift drag but officially promoting female impersonation.” (Location 1677).

In 1941, strained by the demands of a massive war mobilization that included a large influx of gay soldiers, the military could no longer handle its homosexual discipline problems by sending all offenders to prison as required by the Articles of War.[1] Therefore, based on the belief that homosexuality was a mental illness, there was a concerted effort to discharge homosexuals without trial while retaining those whose services were deemed essential. However, this policy ran contrary to the common law that held homosexuality as “an infamous and unspeakable crime against nature,” and that the military had a responsibility “to prevent such crimes with severe punishment
and to protect the morals of the nation’s young people under their jurisdiction.”

Underlying all this was a sort of political upmanship among various factions of the military bureaucracy. For example, having sodomites released into the care of psychiatrists would greatly enhance the standing of psychiatry as a legitimate science, and for their part the generals resented the  interference of the legals in the Judge Advocate’s office. Therefore, the unfortunate men and women awaiting jusice were helplessly caught somewhere in the middle.

There was also the question of what sort of discharge would apply–i.e. honourable medical discharge or dishonourable? An honourable discharge, it was argued, might lead to homosexual activity or declaration in order to escape compulsory service. Dishonourable discharge (so-called “section eights” or “blue cards”), on the other hand, were generally used only for men who had been convicted of a crime and who had served their sentences. These had been used successfully to eliminate social misfits–alcoholics, chronic liars, drug addicts, men who antagonised everyone—but technically did not include homosexuals. In the end (1943), however, the military issued a directive that steered a compromise inasmuch as sodomy was still deemed a criminal offence, but it allowed for an exception where force or violence had not been used. These individuals would be examined by a board of officers “with the purpose of discharge under the provisions of Section Eight.

It was intended as a more humane way of dealing with “offenders” but, as gay men and women would soon find out, it was fraught with difficulties of its own.

As officers began to discharge homosexuals as undesirables, the gay GIs who were their targets had to learn how to defend themselves in psychiatrists’ offices, discharge hearing rooms, hospital wards, and in “queer stockades.” There they were interrogated about their sex lives, locked up, physically abused, and subjected to systematic humiliations in front of other soldiers.

“The discharge system could drag any GI whose homosexuality became known or even suspected into seemingly endless maze of unexpected humiliations and punishments. Some gay male and lesbian GIs first entered the maze when they voluntarily declared their homosexuality, fully expecting to be hospitalized
and discharged. But others, following the advice in basic training lectures to talk over their problems with a doctor, psychiatrist, or chaplain, were shocked when medical officers betrayed their confidences by reporting them for punitive action ad “self-confessed” homosexuals, or were disappointed and frustrated when more sympathetic psychiatrists could not help them at all. Caught during their processing for discharge in battles between friendly and hostile officers, they found themselves thrown around like footballs in a game over which they had no control.”
(Location 4442).

Nor were things to improve when they were returned home to civilian life. Gay veterans with “blue” or undesirable discharges where stripped of his service medals, rank, and uniform, then given a one-way ticket home where they had to report to their draft board to present their discharge papers. The stigma attached to these discharges was not an accident. Rather, it was intended to punish homosexuals and prevent malingering, and the requirement that the GI report to his draft board ensured that his community would find out the nature of his discharge. Therefore, they were forced to come out to their families and communities. Wherever blue-discharge veterans lived, employers, schools, insurance companies, veterans’ organizations, and other institutions could  use their bad discharge papers to discriminate against them.

One of the most vindictive punishments meted out to these veterans was the denial of GI benefits that included federally subsidized home loans; college loans with allowances for subsistence, tuition, and books; unemployment allowances; job training and placement programs; disability pensions and hospital care. Top officials at the Veterans Administration were responsible for this denial, contrary to Army policy and Congress, but nonetheless the VA refused to drop its anti-homosexual prohibition. Consequently, many blue-discharge veterans found it difficult (impossible) to find employment, and when they applied for unemployment insurance, or small
business loans, or college assistance, they were denied in a Catch-22 situation.

One of the side effects of this discrimination was that having survived fear and death on the battlefield, some gay combat veterans began to cast off the veil of secrecy that so seriously
constrained their lives. For them, “coming out” to family and friends was not nearly as terrifying as facing the enemy in battle. Moreover, the popular press began to take notice of the blue-ticket discharges, and their plight, and started to publish columns on the “Homosexual Minorities,” characterizing them as “anther minority which suffers from its position in society in somewhat the same way as the Jews and Negroes.”

Unfortunately, this period of ‘liberal’ attitude was short-lived, for in the late 1940s a preoccupation with conformity brought a fearful scapegoating of those who deviated from a narrow idea of the
nuclear family and the American way of life. However, you will have to read this most remarkable book to learn the outcome of this.

***

What I have included above only covers a small portion of this fascinating, sometimes heart rending, story. If you never read another history of this period, I urge you to read this one. Five Bees, and if I could give ten I would!


[1]
Under the Articles of War, the maximum penalties for Army enlisted men and
officers convicted of sodomy were five years confinement at hard labour,
forfeiture of all pay and allowances, and dishonourable discharge or dismissal.
Under the Articles for the Navy, the maximum penalties for enlisted men were
same but with ten years of confinement at hard labour.

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November 11, 2013 Posted by | Coming out, Gay documentary, Gay Literature, Gay non-fiction, Historical period, Military history, Non-fiction | 3 Comments

   

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