The Criminalization of Gays in the United States

I recently read two books that detail the history of mistreatment of homosexuals in the United States. Secret City: The Hidden History of Gay Washington by James Kirchick is focused on the implications of being a homosexual for one's career in government. Vice Patrol by Anna Lvovsky is more focused on the tactics used by municipal police departments to entrap gay men. Both are worth reading if you want to know more about the official government oppression of gays in the 20th century. This was a topic I knew existed, but I'd never seen a proper book-length treatment of it before. The closest to it was a chapter Norm Stamper gave to it in his book Breaking Rank. Stamper is a former police officer (former chief of police of Seattle in fact), and he's old enough to have been part of a vice squad. He recounts a few grossly homophobic jokes by the director of the squad, which gives a flavor of the scene he was working in. Secret City and Vice Patrol give me a fuller view of this world. 

Gays were essentially barred from serving in government. The ostensible reason for the prohibition being that gays, having a dirty secret to hide, would be easy to blackmail. If a homosexual were in a role that involved handling sensitive information and a foreign agent figured this out, that person would be a security risk. It's superficially plausible, but Kirchick points out that this is a self-fulfilling prophecy. A gay person's career is in constant peril because of the official policy of "no gays in government." Codifying this policy (which was already in play in the cultural layer of society before it was ever officially codified) makes it easier to blackmail them. Kirchick tells the story of a gay government employee who gets outed. He makes no effort to deny or cover up who he is, he simply tries to argue, "There's nothing to blackmail me over. My status as a gay man is known to everyone." This didn't work, he was fired anyway. There was something else at play beyond the official rationale for the prohibition, probably that people in that time just thought "Those people are gross" and didn't feel any remorse for openly discriminating against them. Kirchick finds there was little to no evidence that blackmailed homosexuals were responsible for any security leaks. 

It's regrettable that this is how Washington worked in the 20th century. But what really revolted me is the level of "due diligence" that the government went through to root out gays in their midst. Government employees often faced rigorous background checks by serious FBI agents. It might not have bothered me quite as much if there was some kind of "don't ask, don't tell" policy, where everyone was notionally against homosexuality but they didn't bother too hard to uncover it. But they invested serious resources into these background checks. Bachelors were automatically suspect and got extra scrutiny. Interviews with friends and acquaintances often turned up minor clues. A background-checker who was a decent human being, who recognized he was conducting a witch hunt, would have simply declined to overturn every stone he found. The FBI agents who conducted these inquisitions must have seriously believed they were fighting a righteous war against the wicked, because they went to great lengths to track down every 2nd and 3rd-hand clue about someone's past. Secret City describes several instances of these investigations discovering a homosexual past, sometimes turning up an incident that was decades old. Those days are basically behind us, and I'm generally one to accept progress for what it is and let the past be the past. But the FBI's hunt for homosexuals reaches a high bar of depravity. I think there should be some kind of reckoning. At least a public naming and shaming of some higher-ups who were complicit in these investigations. It doesn't rise to the level of "Nazi prison guard". But it's still in the realm of, "This is sufficiently wicked that you should have recognized it at the time. You ruined people's lives over nothing." It would be interesting to hear someone try to justify their complicity in this kind of inquisition. I feel like some kind of message has to be sent that "just following orders" is not sufficient cover for wrongdoing. You have a responsibility to resign if you're ordered to do something unconscionable, at the very least to refuse the orders. I'm not saying we should go doxing these by-now senior citizens, who (assuming any are left) are probably living out their remaining years in some kind of quiet dignity. But some kind of cross-generational line in the sand has to be drawn against this kind of domestic persecution. (Maybe we wait until we're pretty sure they're all gone and unseal the relevant files? Similar to the unveiling of the Stasi files after the fall of East Germany, which revealed the wrongdoings of Stasi agents and their informants. Or maybe we get a few of them, who truly had regrets and a change of heart, to step forward and renounce what they did? I feel like there needs to be some kind of clearing of the air. The State Department has issued an apology for the so-called Lavender Scare, which is a start at least.) 

Secret City is mostly about the career implications of being outed as a gay person, specifically in the federal government. Vice Patrol gets into the weeds of anti-gay law enforcement at the municipal level. Again, I was shocked by the amount of manpower and resources that went into persecuting homosexuals. Vice patrols used different tools than the FBI background checkers and had a different motive. The FBI wasn't concerned with criminal prosecution or capturing someone in the act. They merely wanted to establish someone's status as a homosexual. Anti-gay vice cops, on the other hand, were primarily motivated to get convictions. This usually did entail catching someone in the act, which implied the need for subterfuge and hidden surveillance. Homosexual behavior (of the kind the vice squad is concerned with) is consensual, so the police needed to trick gays into revealing themselves. (Victims of crimes generally come forward willingly, so less subterfuge is necessary to identify and apprehend the criminals.) Some vice cops would dress as gay men and hang around in gay bars or public restrooms that were known to be frequented by gay men. If someone made too direct a proposition, they would be arrested and charged. Responding to this environment, gay men had indirect, often non-verbal cues to coordinate with others. The book recounts an exchange in which a vice cop tries to get a (presumably) gay man to make an explicit proposition, and the (very wise) gay man repeatedly declines to oblige him. They both grow frustrated with the exchange and part company. 

This legal ecosystem of cat-and-mouse games created a lot of borderline prosecutions, in which it wasn't totally clear to an objective third party whether a proposition had been made. A gay man caught in this trap could often successfully argue in court that no proposition had been made and it was all a misunderstanding. The police had to resort to arguing that they had special expertise in recognizing gays and gay behavior. Some gay stereotypes may be easily described in objective terms, things like "tight pants" or "speaks with a lisp". Other traits might defy description. Some series of subtle cues might have set off the vice cop's "gaydar," though explaining this to a judge may be impossible. (Quick, look at some images of a man's face and a woman's face, explain in terms of objective measurements how you know one from the other. "Well the nose is kind of...and the ears are slightly..." It's hard to describe in words, yet somehow you can tell the difference with near certainty in most cases. It seems plausible that some people have this kind of tacit classification mechanism when it comes to identifying gay people.) This actually created a kind of legal tension, a contradiction of legal arguments. The police would often insist that they had expertise in identifying homosexuals. At the same time, they often targeted gay bars, whose owners would plead ignorance, arguing that they have no way of knowing what a gay person looks like. How are they supposed to know the sexual proclivities of their clientele? The police could turn around and insist that it's obvious when someone is gay, but that would undermine their claim to have a special skill in this area. 

The book also gets into the topic of liquor licensing boards. The boards would target gay bars, attempting to remove their liquor license. But obviously in a world where homosexuality is against the law, no bars were advertising their status as a gay bar. Owners would simply deny that they could distinguish gay customers from straight customers, so they had no way of strictly maintaining a straight clientele. Licensing boards couldn't just issue a summary judgment and revoke a license on a suspicion. Owners of (allegedly) gay bars had legal recourse. There was some kind of due process that generally worked in their favor. 

What revolted me most about this book was the surveillance of public restrooms. Once again, these were consensual acts between adults, so the authorities must resort to morally questionable behaviors to catch and prosecute them. That meant entrapping someone in a sting operation or staking out and spying on the bathroom's users. Some vice cops would sit in an adjacent stall and give some kind of cue (like tapping their foot). If a person in the adjacent stall fell for it, they'd be arrested and prosecuted. The police would also install video cameras and listening devices, or observe through binoculars from some perch (through a hole in the wall or a tiny window that was hard to notice). It's hard for me to fathom the rationale for this. If people (gay or straight!) were wantonly having sex in public restrooms (without availing themselves the cover of a bathroom stall), it would be easy enough to catch them without entrapping or surveilling anyone. An occasional random check-in would catch a couple in the act, and they could be arrested for public indecency. It would not take much of this to discourage the practice, and thrill-seekers would be more discrete about their dalliances. 

No, the effort that vice cops put into prosecuting gays suggests they thought they were on the side of the angels, fighting a crusade against sinfulness. Surveilling these mostly innocent restroom users truly crosses a line. And this isn't just the moral clarity of a distant generation talking, not a case of "moral hindsight is 20/20". Some judges who presided over these prosecutions offered the same misgivings. A bathroom stall, some judges argued, was a strictly private space. There was never a state interest in snooping on the occupants, and doing so inherently runs afoul of 4th amendment protections. Judges also felt that some of the arrestees had been entrapped. They may have had no inclination toward homosexual conduct if the police hadn't enticed them with suggestive conduct. That's hardly an enlightened attitude toward the gay community by today's standards, but it's clear that the judiciary provided pushback against the excesses of vice enforcement.  

Once again, I think there should be some kind of reckoning for the police officers and officials who were complicit in this culture of actively persecuting homosexuals. It was long enough ago that most of these people would be retired or gone, so there wouldn't be much in the way of career consequences. But some kind of naming and shaming is in order for anyone who played a part in this regime. This isn't a case of, "Moral standards shifted unpredictably over a couple of generations, so it wouldn't be fair to judge them by the new standards." It's not an instance of "They have audio of me saying a word that later became a no-no, so now I'm cancelled." It's not merely, "I failed to stand up for what's right in a wicked world". I think the actions of vice cops were morally revolting in a way that was obvious at the time. And they zealously pursued their targets, selecting the persecution of a despised minority as a career. (In an interview that I can't locate now, I heard Anna Lvovsky describe her experience interviewing an instructor of a vice squad. This was the man who taught young cops how to successfully persecute gays. She honorably played the part of the impartial scribe, and we have an excellent book because of it. I don't think I could have remained so calm in her situation. Bless her.) Norm Stamper has set a phenomenal example here. He dedicated a chapter of Breaking Rank to his time as a vice cop. He apologizes for being late to the party on gay rights issues, though he was decades ahead of his colleagues. We could start with a few more voluntary about-faces and apologies by former vice patrolmen, maybe involuntary naming-and-shaming for truly egregious examples of anti-gay policing. 

I haven't done justice to either book, and obviously I'm adding my own reactions of moral outrage. Secret City is over 800 pages, Vice Patrol just shy of 300 pages of actual text. This post barely scrapes the surface. I'm merely trying to paint the basic historical landscape and contrast it to present enlightened views of gay rights. I think it's worth offering a few observations from a libertarian perspective. 

It's worth noting that extra-legal persecution of homosexuals would probably have been happening even absent the vice squads and federal rules banning them from government posts. Politics is downstream of culture. That is to say, government is for the most part constrained by what the general population finds acceptable. Official policy is often the codification of something that's already happening in private society. This is something that libertarians need to struggle with. The "gays are easy targets for blackmail" rationale may be bogus for the reasons given above, but it's still the case that publicly outing someone could have destroyed their life. This was probably true up until the very latest part of the 20th century. Persecution of minorities can happen without the government lifting a finger. This kind of thing can run on the cultural layer of society if a social consensus forms that "homosexuality is icky." There is a school of thought that insists on libertarianism as being a strictly political philosophy, which shouldn't be offering commentary (not speaking as libertarians anyway) on these kinds of cultural issues. Assuming there is a free labor market, homophobic employers could fire gay people. Landlords could discriminate against gay tenants in a free market for housing, etc. And this could be the norm rather than an isolated act of bigotry. Worse, it could be the case that homophobic tenants and employees are the ones insisting on being in a gay-free environment, so even enlightened gay-positive employers or landlords may feel pressured to discriminate by the less enlightened mobs they serve. It's a little bit weird to see society coordinate to discriminate against a minority group and insist that libertarianism has nothing to say about it. It's not exactly "government", but it's still a kind of coordinated power being directed against a relatively powerless minority group. I think most libertarians don't subscribe to this strict separation of political and cultural prescriptions, but the ones who do should squirm a little at this thought. Anti-discrimination laws, as a general tool, don't solve the problem in this kind of society, because such laws would reflect the general public's understanding of who should and shouldn't be a protected class. I'm still a radical advocate for freedom of association, up to and including the right of bigoted shopkeepers or employers to exclude whoever they don't like for any reason. I think in today's society such bigots wouldn't survive the first flex of their "right to discriminate." They'd be boycotted and shamed out of existence. But 50 years ago? I'm not so sure. Discriminating against despised minorities may have helped rather than harmed their bottom line. We should keep in mind that in less enlightened parts of the world, there are still bloody race riots. Resented minorities are often beaten, raped, or murdered. Violent pogroms are carried out by mobs. Sometimes governments are complicit in such racial violence, but often these are impromptu lynch mobs composed of "normal" people. These are incredibly powerful social forces, projecting power and initiating violence. It makes little sense for libertarians to build this wall of separation between strictly political philosophy and social philosophy that condemns extra-judicial violence, as if the latter were not part of our mission. Race riots happen in some cases because of anocracy, a lack of sufficient government, or a failure by existing governments to enforce the law (though it could do so if it were inclined to). Sometimes governments protect unpopular minorities from a society that would initiate violence against them; this thought should make libertarians of the anarchist persuasion (and I am one by the way) squirm a little. Sometimes a big, central government secures the rights of minorities against smaller state and local governments; this thought should make secessionists and extreme federalists uncomfortable. There is plenty to squirm about here. (To statists I would say, sometimes the government simply reinforces and codifies the bigotry of the surrounding society, see the contents of this post for numerous examples. So "government prohibits bigotry" isn't such a straightforward answer to the problem, either.)

It's also worth reflecting on the difference between the gay lifestyle today and the one that was practiced in the 20th century, when it was considered illicit. Neither of the above mentioned books discusses gay relationships as long-term bonding between a loving couple (or if they did, it was so brief I missed it, sorry). Surely there were some long-term gay couples, though they must have gone to great lengths to disguise their relationship. Two men cohabiting for a long period of time would have raised eyebrows, eventually attracting the attention of family members, landlords, employers, and possibly the authorities. No, most of the homosexual encounters described in both books were "hook ups." These were one-time dalliances between two people who would most likely never meet again. (John Kennedy was propositioned by a man who, to his great credit, he remained a life-long friend with. Presumably such propositions sometimes paid off, which would result in two acquaintances knowing one another to be gay. I'm sure this led to some repeat encounters, if not actual cohabitation or long-term relationships.) What am I driving at? In this kind of environment, homosexuality really does seem illicit. People are engaging in subterfuge, trying to evade the law, possibly lying to cover their tracks. And what they're covering up is not a loving, long-term relationship, but (to onlookers in the mid-20th century) a form of sexual depravity. In the present day, a gay identity really does mean long-term relationships. It means introducing your friends and family to your partner. It's perfectly wholesome. In the early to mid 20th century, it meant late night hookups in public parks or bathrooms. There is a generalization here, which is that criminalizing something makes it seem sleazy, even if it isn't inherently so. The obvious analogy is drug prohibition. Under a prohibition regime, drug dealers really are sleazy people. They use violence to silence witnesses or settle disputes. They hire drug mules to swallow condoms filled with dangerous powders and cross borders with them, which sometimes results in the condom failing and causing a fatal overdose. They sometimes use minors as delivery boys. The chemical processes they use to manufacture some drugs are toxic enough to make the property they're done in uninhabitable. When a drug cop busts a drug dealer, they're likely apprehending someone who has murdered a rival or cooked up a batch of bad dope that killed one of his customers. They end up thinking they're fighting a holy war because the people they arrest really do engage in destructive behavior. These cops mostly lack the imagination to see what the counterfactual is: the world in which drug commerce is legal. Markets that are above board aren't generally associated with these sleazy behaviors. The guy who sells me beer at the liquor store (or the grocery store) has no inclination to second-guess my motives, to pat me down in search of a wire, to shoot me if he finds one. Likewise, a vice cop in the mid-20th century who apprehends a homosexual is catching someone in the middle of an act that society deems morally revolting.* He doesn't see the counterfactual world that has only come to light in the past 30 or 40 years, where openly gay couples have long-term, loving relationships. To explain is not to forgive. Obviously I'm not trying to justify the criminalization of homosexuality or of drugs. But we owe it to ourselves to get into the heads of people who prosecute these government orchestrated wars on vice. They think legalizing the vice means "Without the deterrent of the legal prohibition, there would be lot more of the ugly stuff we see on our jobs." They often lack the imagination or the inclination to see the counterfactual. They can't see that they're creating their own dragons to slay.

I was looking for a book in the libertarian canon that handled these topics, but I now don't think one is needed. Secret City and Vice Patrol lay out the historical details matter-of-factly with little editorializing or moralizing. To a modern reader, none is needed. The moral commentary writes itself in the reader's head. In this light, libertarian commentary on the history is kind of redundant. (Should someone write the same book from the libertarian perspective, offering the same history and factual details but pausing occasionally to say, "This is bad, because it violates the non aggression principle"?) At best, I think some libertarian editorializing is possible with regard to how to the moral arc is bending. Government prohibitions on drugs, prostitution, and gambling are analogous to the prohibition of homosexuality.** Driving an activity underground forces practitioners to engage in "sleazy" behaviors to cover their tracks. This causes onlookers (typical members of the broader society) to associate unseemly behaviors with the prohibited activity, even when there's nothing inherently wrong with it. There's something almost wholesome about drinking a few beers at a family barbecue. When you encounter the median beer drinker "in the act", there's nothing inherently sleazy about it. In most cases there wouldn't even be noticeable intoxication. But when the activity is illegal, the responsible practice of it stays hidden. It only becomes uncovered when something dangerous happens. Like someone crashing into a tree after snorting too much coke or discovering someone is an opioid addict when they fatally overdose.  There is certainly a "libertarian take" on this history that puts it into the context of other violations of our liberties. But I wouldn't want to supplant these two fine volumes with a libertarian version. I would simply add these books, exactly as they are, to any libertarian bookshelf (or any bookshelf for that matter) and leave it at "The libertarian editorializing writes itself." 

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I apologize for slipping into using the language of earlier times for parts of this post. It's not cool to refer to gays as "homosexuals" (even though it seems like a scientific, Latinized word for the people who engage in the behavior, it sounds wrong). I hope it's obvious when I'm giving voice to a person living two to four generations ago versus when I'm using my own language. 

*Imagine a vice patrol kicking down the door of an elderly gay couple, shouting "Freeze, police!" and barking orders. The couple would appear as harmless, decent folk who'd been needlessly terrified. I could imagine at least some of these cops having second thoughts about their mission after a few of these. This is a different mindset than someone who regularly catches homosexuals in the middle of the act in a public place. The undercover vice cop who routinely has a man proposition him by running a hand up his leg probably feels a sense of moral disgust. A more domestic gay lifestyle just isn't part of his world, so he never sees it.

**With an important difference. I think "gay" as an identity is possible if it's legalized in a way that it's not when homosexuality was criminalized. I don't know if "drug user" or "gambler" can or should become parts of your identity in the same way.