Three days ago, the United States lost one of its greatest liberal jurists: Ruth Bader Ginsburg. During her 27-year tenure on the Supreme Court, Ginsburg voted in the majority in a number of critical cases concerning LGBTQ rights, including those legalizing gay sex and same sex marriage and prohibiting employment discrimination. We are in shock at her loss.
One of the first to recognize the role that the courts might play in advancing the cause of LGBTQ rights was Franklin E. Kameny, a young astronomer who was fired by the U.S. Army Map Service in 1957 for being gay. Kameny was not a pushover, however, as Eric Cervini details in a new biography, The Deviant’s War: The Homosexual vs. the United States of America (2020). Rather than accept his disgrace, Kameny pursued his case and a number of others through multiple administrative hearings, court battles, letter-writing campaigns, and protests, in the process helping to build the organized gay rights movement that we know today.
Kameny was born in 1925, served in the Army from 1943 to 1946, and got his Ph.D. from Harvard in 1956. The following year, he got a job as an astronomer for the Army Map Service, constructing the maps that made it possible to chart the course of early spacecraft from liftoff to splashdown. Within a few months, his employer learned that he was gay, and he was fired. After exhausting the available administrative appeals, in 1959 he sued the secretary of the Army for stripping him of his security clearance, which effectively barred him from employment by government contractors as well.
In his suit, he made a revolutionary argument: “We assert, flatly, and without compromise, that homosexuality whether by act or by mere inclination, is not immoral, and, in fact, that it can be cogently argued that for those so inclined, it is moral in a positive sense.” He would later condense this to a simple, three-word slogan: “GAY IS GOOD.”
He lost his suit against the Army in 1961. The same year, he helped found the Mattachine Society of Washington, a gay-rights organization. (A national Mattachine Society had been established in 1950 and disintegrated earlier in 1961; the MSW was one of several successors.) Together with the Daughters of Bilitis (a lesbian society) and other groups in the East Coast Homophile Organization, the MSW spent much of the mid-1960s pursuing the goal of “first class citizenship for homosexuals.”
Kameny and the MSW did not want for ambition. In 1962, Cervini writes, they sent out a mass mailing to “President Kennedy, Vice President Johnson, and the entire presidential cabinet; all 535 senators and congressmen; every justice of the Supreme Court and an array of lower court judges; and every commissioner of the District of Columbia.” They picketed at the White House and elsewhere. And Kameny donated his own time and enlisted the help of the National Capital Area Civil Liberties Union in suing the government on behalf of others who had lost their jobs or security clearances because of their sexuality.
Nor was he afraid to speak truth to power. The MSW routinely mailed newsletters and invitiations to the feared FBI director J. Edgar Hoover—himself rumored to be gay—who pursued a vigorous campaign of investigation, purges, and possibly blackmail of “sex deviates.” And appalled by the government’s conduct in another lawsuit, he sent the presiding examiner a copy of Franz Kafka’s The Trial, together with a “formal request” that he read the book before their next hearing.
It was a time of change. Between the late 1940s and 1970, the Cold War and the space race galvanized the country; Alfred Kinsey showed that homosexual conduct was common; African-Americas and their allies lobbied for civil rights for all; the Supreme Court legalized pornography; and people everywhere protested the Vietnam War.
There were losses and victories in the early fight for gay rights, but when the victories started to come, writes Cervini, they came “at first with breathtaking speed.” In 1973, the American Psychiatric Association removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders. And in 1974, the Pentagon granted its first security clearance to an openly gay man, fulfilling the goal that Kameny had set out to achieve seventeen years earlier.
Cervini has written an engaging and lucid account of a very complex history. Thanks to his diligent research and the inclusion of over 100 pages of references and an index, The Deviant’s War will remain a invaluable reference on these events for years to come.
But Cervini cannot resist a good story, and stories become digressions and sometimes distractions: Chapter 5, for example, opens with an explanation of how the ancient Roman celebration of the kalends morphed into the medieval Feast of Fools and eventually the Spanish dance of the masked mattachines, whence the name Mattachine Society. Chapter 17 begins with farmers rioting in the Hudson Valley in 1844, leading to a ban on wearing costume in public, and eventually to arrests for crossdressing at the Stonewall Riots in 1969—important events, to be sure, but ones that have been amply chronicled elsewhere.
It wasn’t until 1994 that gay people could legally serve in the military, and 2011 until they could do so openly; trans people, after briefly enjoying that right, are once again barred from doing so. By 2015, a patchwork of state laws and court decisions allowed same-sex marriage in 35 states, but it took the U.S. Supreme Court decision that year in Obergefell v. Hodges to legalize it nationwide. And until the Supreme Court ruled earlier this year in Bostock v. Clayton County, employers in 28 states could still fire people for being gay.
But the Supreme Court that made these and other important decisions on LGBTQ rights often did so by a fragile 5-to-4 majority, with Ginsburg ruling in the majority. That majority has now been shattered, and President Trump is moving to fill Ginsburg’s seat before November 3. While the country awaits a nomination, the president’s standing list of candidates has been amply criticized for its anti-LGBTQ views. As Jennifer Finney Boylan observed recently in The New York Times, “the fight for equality isn’t over, and can most definitely still be lost.”