Queer Border Crossings

Abstract

Judge Leonard Moore surely made some enemies when he submitted his dissent in the Second Circuit's 2-1 ruling in the 1966 case Boutilier v. INS. The case involved a gay Canadian citizen who faced deportation because U.S. policy viewed homosexuality as constitutive of a "psychopathic personality" and thus an excludable trait at the border. This unsuccessful appeal, which failed again when the U.S. Supreme Court reviewed and affirmed the decision the following year, found Moore sympathetically citing Alfred Kinsey's Sexual Behavior in the Human Male (1948), which revealed Americans engaged in far more sexual practices-including homosexuality-and with greater frequency, than most believed. Moore maintained that the immigrant's due process rights had been violated, adding, "I cannot impute to Congress an intention that the term 'psychopathic personality' … be construed to cover anyone who had ever had a homosexual experience." He argued, "To label a group so large 'excludable aliens' would be tantamount to saying that Sappho, Leonardo da Vinci, Michelangelo, Andre Gide, and perhaps even Shakespeare, were they to come to life again, would be deemed unfit to visit our shores." Moore must have really shaken the court's decorum when he levied the veiled indictment: "Indeed, so broad a definition might well comprise more than a few members of legislative bodies." Moore's argument, which sought to genealogically link the likes of Sappho with people in the mid-twentieth century who crossed the border, intimated that such a draconian and shortsighted policy violated constitutional protections and had the potential to keep exceptional foreigners from entering, and contributing to, the United States. 1 As this suggests, the experiences of queer foreigners-or those whose gender presentation or sexuality marked them as transgressive and outside the rubric of the "normative"-proves particularly insightful for understanding the checkered ways in which immigrants have been both welcomed and scorned in the modern United States. Framing some foreigners as sexually transgressive and perverse has been central to the mythologies that fueled U.S. immigration policy for well over a century. But at the same time, this history has been punctuated by moments of acceptance as well as queer resistance and defiance. The ways in which markers of transgressive gender and sexuality have been regulated at the U.S. borders, and the ways in which constructs of desirability and undesirability have fluctuated across place and time, reveal a jagged relationship between the state and queer border crossers. The federalization of immigration law in the late nineteenth century was rooted in efforts to preserve and define normative and heteropatriarchal conceptions of marriage and the family. In 1875, U.S. Congress passed the Page Act targeting Chinese women suspected of seeking to enter for "lewd and immoral purposes," largely understood as engaging in prostitution and polygamous relationships. As Kerry Abrams has argued, the 1875 Page Act proved an effecti...