... having been breathed out

After the Fleuti decision was remanded, the INS again ordered Fleuti’s deportation, asserting that he had been a constitutional psychopathic inferior at the time of his entry in 1952. […] The renewed order for deportation was finally canceled in 1965 when the BIA ruled, in intriguingly broad terms, that [despite three arrests for public fellatio with other men] it did not find compelling evidence that Fleuti was homosexual:

"Respondent has been employed in a responsible position for the past 11 years by one employer who thinks very highly of him, that he has a history of devotion to family and interest in others, that he has sought psychiatric help and has his problem under control, that apart from these arrests resulting in convictions on two occasions, he has not been in trouble with the authorities, that he is well regarded by people who have known him over an extended period of time… While the record reveals that respondent has an inclination toward homosexuality, it appears to be one respondent can control and that he had it under control before he entered. Therefore, we cannot find that the record establishes that he was a homosexual at the time of entry."

What, then, according to the court, made one a homosexual? Fleuti’s sexual acts—unlike Flores-Rodriguez’s or Quiroz’s—were mitigated by other facts that seemed to suggest to the BIA that Fleuti led an upstanding and moral life. In contrast to the image of an out-of-control psychopath, Fleuti’s homosexual urges were held in check. Moreover, he had severed not only sexual but also social contacts with other homosexuals. Fleuti exhibited many of the traits of a good citizen—he was productively employed, a responsible family member who cared for his dependents, well thought of by his associates, and not least, both northern European and male. Interestingly, such traits did not suggest to the BIA that Fleuti was a good homosexual. Instead—the increasing opposition between homosexuality and citizenship made the former conclusion unlikely—they indicated that he was not a homosexual at all.

—Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America

A footnote to this whole debate on Fleuti’s homosexuality, and seemingly unimportant to anyone on either side at at the time, is that in addition to the professedly once-a-month-ish blowjobs he was getting from men in the neighborhood Fleuti was also conducting romantic and sexual relationships with women during the decade in question, some of which resulted in children. But apparently, much like the illogic of the “one drop of black blood” anti-miscegenation laws of the same period, it didn’t matter how much opposite-gender sex a person was having. With no intermediate (bisexual) legal category available, one same-gender sex act in a decade of opposite-gender ones opened an individual up, not just to prosecution for that particular act, but to systematic legal persecution for a homosexual status now held to be intrinsic to that individual’s nature.

There was no way, in other words, to prove heterosexuality. If a single thread of same-sex desire in a tapestry of amorous affairs, irrespective of any other threads, was enough to designate a person “homosexual”—and if the legal conception of homosexuality as status rather than behavior meant that an individual needn’t even act on that desire in order to incur the label and be branded a second-class citizen (at best) or deported, jailed or killed (at worst)—then anxiety-free heterosexuality became an ever-more tenuous and unattainable ideal, especially for populations like soldiers, welfare recipients and immigrants, which were already vulnerable to government harassment. This is a state of affairs which obviously benefited the court and legal system, since it provided one more stick with which to keep the populace in line, even as the government also offered carrots like the GI Bill to Americans who, in its view, sufficiently measured up to the ideal of marriage, employment and reproduction.

Furthermore, as Canaday points out above, the US Court system was so committed to redefining terms in its own image, that when presented with a person who did exemplify that ideal, it decided against all evidence that that person simply wasn’t a homosexual, despite having been observed in the midst of multiple same-gender sex acts. In contrast, it is telling that Sara Harb Quiroz, who was neither northern European nor male, appealed her deportation orders on almost exactly the same grounds that Fleuti did; yet despite a cleaner record and a similarly spotless community reputation, the courts had no problem finding that she was a “psychopathic personality” (the faux-psychiatric legal euphemism used by the US judiciary as synonymous with “homosexual,” despite the objections of actual psychiatrists.)

I must say that reading about the US government’s vested, conscious, and oppressive interest in shifting toward a model of homosexuality that stressed immutable identity and away from one that stressed specific behaviors, leaves me with mixed feelings about clinging wholeheartedly to one model or the other.

Usually, immigration officials used the public charge clause [deportation of those likely to become a burden on the state] against aliens suspected of sodomy without much investigation into their actual economic circumstances. The assumption of these officials was that men who were not self-governing in their sexual practices could not be self-governing in their labor. Sexual perversion, linked in this way to crime and vagrancy, would one way or another lead its practitioners to public charge status. In a reversal of this logic, vagrancy charges against a pair of Latin American aliens stood in for actual evidence that sodomy had been committed. “While there is no direct proof…that these aliens and their associates have been practicing sodomy or other unnatural crimes in…the Mint Hotel,” Assistant Commissioner-General Hampton wrote in the 1916 case of Guillermo Castillo and Marcos Cervellos, “the indications are that the aliens are a worthless lot of vagabonds.”

—Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America

This book continues to be absolutely gripping. Not to mention incredibly useful from a writing-of-historical-fiction perspective. (NB this passage concerns the early decades of the twentieth century: pre-WWI and early 1920s.)