T
here is a new trend in how gay and lesbian
lawyers and legal scholars are fighting for gay rights. To a large
degree this legal tactic entails the use gay and lesbian history
to help judges and jurors better understand not only the often
homophobic reality that has shaped the past, but also how our basic
ideas and institutions about sex, proscription, children, love,
romance, and work have been constructed. Often what began as scholarly
research has become a solid legal argument that can change unjust
laws.
The first important case that relied on gay history was
Lawrence
v. Texas,
which was argued in 2002.
Lawrence
was brought
to the Supreme Court by the New York based Lambda Legal Defense
and Education Fund. Along with the basic arguments—that sodomy
laws were unconstitutional because they violated the right to privacy
and were discriminatory—they also presented an amicus brief
by such historians as George Chauncey, Nancy F. Cott, John D’Emilio,
Estelle B. Freedman, John Howard, Mark D. Jordan, and Elizabeth
Lapovsky Kennedy, among others.
These historians set out to prove that “no consistent historical
practice” singles out same-sex behavior as “sodomy”
and that “the governmental policy of classifying and discriminating
against certain citizens on the basis of their homosexual status
is an unprecedented project of the twentieth century.” By examining
biblical sources, as well as U.S. history from colonial times to
the present, they demonstrated how prohibitions against certain
types of sexual activity were never universal or consistently regarded
as immoral or illegal. They showed that sodomy laws, throughout
what is usually called “western culture,” were really
a grab bag of prohibitions far more reflective of historical, social,
religious, and economic moments than a universally understood and
accepted prohibition.
The defense of sodomy laws has always been that samesex sexual activity
(also called “the detestable crime against nature” in
many traditional statutes) is immoral and wrong and that prohibiting
it is a safeguard against sexual anarchy and the destruction of
personal integrity and family. The argument that sodomy laws are
not universal, and to prove this historically, was a radical departure
for many traditionalist thinkers. Justice Kennedy substantially
referenced the historians’ brief in his decision to find Texas’s
sodomy laws unconstitutional.
Historians also played a large part in Massachusetts’s Supreme
Judicial Court (SJC) decision in
Goodrich v. Department of Public
Health
in 2004, which stated that it was discriminatory and
unconstitutional to ban same-sex marriages. In
Goodrich
,
historians Chauncey, Cott, and others argued that marriage has been
an evolving institution and has existed throughout European and
U.S. history in a wide variety of forms, only some of them having
to do with romantic love or raising children. This may seem obvious—the
arranged marriages of medieval and renaissance Europe differ from
companionate marriage—but antigay marriage rhetoric continues
to asssert that marriage has always been a religious, divinely ordained
union between one man and one woman for the purpose of raising children.
Forget about the Hebrew Bible’s complicated system of concubines
and polygamy (not to mention really easy divorce for men) and the
fact that marriage has been one of the most protean social institutions
throughout history. When the SJC wrote
Goodrich,
they relied
on the historians’ brief and their decision to end the prohibition
against samesex marriage was predicated on the idea that the civil
institution of marriage had always changed and this was simply the
next step.
Recently
in Massachusetts another case has surfaced in which the defense
is relying on gay history to come to the rescue. On May 5, 2006
the United States Court of Appeals for the First Circuit heard arguments
in
Wayne Blyth Healy v. Luis Spencer
. If Wendy Sibbison,
Healy’s lawyer, is successful it will mean the end of a 25-year
nightmare for her client.
This nightmare began on August 8, 1980 when Wayne Healy’s
brother-in-law Richard Chalue was found dead at about 1:30 AM in
his Holyoke, Massachusetts apartment. Because he was in his bedroom
with his pants down around his knees and his hands tied behind his
back, the police assumed, even before Healy was a suspect, that
this was “a homosexual related homicide.” Healy had visited
Chalue at 9:00 PM that evening for a few minutes and told police
that he had then returned to the home he shared with George Roy
by 12:10 AM.
Although there was no ill will between the two men, no physical
evidence linking Healy to the crime, and no proof that Chalue was
gay or bisexual, Holyoke police pieced together a scenario in which,
for some unexplained reason, Healy had violently murdered Chalue
during a sexual tryst.
This fanciful plot began to seem more reasonable after it was discovered
that Healy, a licensed practical nurse and registered Emergency
Medical Technician, did not tell the police that he had visited
two gay bars after seeing Chalue and before arriving home, leading
them to believe he was at Chalue’s apartment longer than he
had stated. This theory was bolstered by cigarette butts allegedly
left by Healy in Chalue’s apartment (which the defense claimed
were planted there by the police after the defendant left them at
the police station during questioning).
During the trial, John F. St. Clair, the assistant district attorney
for Hampden County, introduced such circumstantial evidence as:
a small two-day-old cut on the defendant’s hand, Chalue’s
girlfriend’s statement that their sex life was dwindling, the
contested cigarette butts, Healy’s concealing his visits to
the gay bars, and posed photographs of Chalue’s corpse that
emphasized his naked buttocks. When faced with the defense’s
clear exculpatory evidence that Healy had no blood on his clothes,
St. Clair countered that the defendant had been naked when he committed
the murder.
What was not introduced in the trial were the findings of Dr. H.
Paul Wakefield, the chief pathologist at Holyoke Hospital who performed
the autopsy on Richard Chaule’s body. Wakefield found no evidence
of any sexual activity. Also withheld was Wakefield’s memo
that the Holyoke police were convinced that Chalue’s murder
was connected to dangerous and deviant gay sex even before Healy
was a suspect. In fact, the most persuasive argument the prosecution
had was that Healy was a homosexual and that, well, homosexuals
are violent deviants who murder their sexual partners.
Even without Wakefield’s pertinent evidence, it took 5 days
and more than 30 hours to reach a guilty verdict and the deliberations
were so stormy that even the prosecution asked for a mistrial. The
judge considered the evidence “so delicately balanced that
even in a small matter, if the jury found out about it, could tip
the balance.” In the end, it was St. Clair’s homosexual
psychopath narrative that persuaded the jury. In his closing arguments
he showed photos of the naked, brutalized Chalue and asked, “What
kind of activity was going on in that bedroom? Ask yourself that.
Don’t leave your common sense at home.”
O
n April 8, 1981 Wayne Healy
was convicted of brutally murdering his brother-in-law and was sentenced
to life without parole. Healy’s conviction was upheld in a
series of appeals to state courts, including the Supreme Judicial
Court. Finally, on January 18, 2005, U.S. District Court Judge Michael
A. Posner ruled that Healy should be released or retried because
state prosecutors used a blatantly homophobic strategy that emphasized
a “homosexual element to the murder.”
To bolster Healy’s argument Boston-based Gay and Lesbian Advocates
and Defenders (GLAD) filed an amicus brief that detailed how entrenched
cultural and political attitudes of the early 1980s set the stage
for Healy’s conviction. GLAD’s brief uncovered a mostly
hidden history of how gay people were historically conceptualized
as dangerous criminals. This included the infamous “sexual
psychopath” laws passed in the post-war years that existed
in more than half of the states that allowed gay men to be arrested
and labeled “sexual psychopaths” simply for being homosexual.
More than 26 states and the District of Columbia passed these laws
and they were essentially used to catch anyone who did not conform
to accepted sexual standards, especially homosexuals. Often these
laws allowed not only for arrests for behavior, but also for incarceration
in mental hospitals for people (usually men) who were targeted as
potential criminals.
The GLAD brief also tracked articles in magazines that described
how homosexuality could lead to “drug addiction, burglary,
sadism, and even murder” and how, especially for heterosexual
men, “disgust” was an appropriate psychological response
to homosexuality (nine of the jurors in Healy’s case were male).
The brief illustrated with legal and social examples how the very
idea that gay sex was dangerous permeated U.S. culture up to the
1980s and how this was prejudicial. It also discussed the films
Deliverance
(1972) and
Cruising
(1980) as promoting
images of homosexual sex as equivalent to rape and murder. Relying
on academic historians and theorists, the GLAD brief delineated
how legal decisions are inextricably linked to the cultures in which
they were formulated.
What distinguishes the amicus brief in the Healy case from those
in
Lawrence
and
Goodrich
is that, while the latter
cases relied on uncovering a distinct social construction of an
institution—sodomy and marriage—GLAD’s historical
argument explicated how entrenched homophobia made a guilty verdict
a foregone conclusion in a case with almost no hard evidence. But
before we get too excited about how history can change the present,
Gary Buseck, GLAD’s legal director, expressed some somber thoughts.
While he noted that Healy’s latest appeal had a good chance
of vindicating him, vicious gay bashing is still with us.
A
s of this writing, Wayne
Healy remains in prison. Although Judge Posner called for his release,
the state attorney general’s office filed, and was granted,
an emergency motion to overturn the decision. The success of Healy’s
First Circuit Appeal—they will announce their decision sometime
later in 2006—depends on the court’s deciding that the
suppression of the Wakefield evidence played an important role in
the guilty verdict and in understanding how U.S. justice is as much
a product of ingrained homophobia as it is the rule of law.
Michael
Bronski is the author of
Pulp Friction
(St. Martin’s
).
