Historians for the defense
The use of gay and lesbian history has already been extremely effective in high-profile cases, including the Supreme Court’s 2003 decision Lawrence v. Texas, which overturned the country’s sodomy laws, and the Massachusetts SJC’s 2004 Goodridge decision, which legalized same-sex marriage in the Bay State. When New York–based Lambda Legal Defense argued Lawrence, it presented an amicus brief by historians George Chauncey, Nancy F. Cott, and John D’Emilio, among others. By carefully examining and deconstructing biblical sources as well as American history, they demonstrated how prohibitions against certain types of sexual activity were never universal, nor consistently even regarded as immoral or illegal. Justice Anthony Kennedy substantially referenced the historians’ brief in his decision to find Texas’s sodomy laws unconstitutional. In Goodridge, Chauncey, Cott, and other historians cogently argued that, despite right-wing political and religious rhetoric, marriage has been an evolving institution throughout European and American history, and that only some of its forms have been rooted in romantic love or raising children.

In like fashion, to bolster Healy’s attorney’s arguments, Boston-based Gay and Lesbian Advocates and Defenders (GLAD) has filed an amicus brief that details how the cultural and political attitudes of the early 1980s essentially set the stage for Healy’s conviction. Surveying the legal terrain — in the ’80s, without anti-discrimination laws and given the fact that all homosexual acts were criminal, Healy could have lost his license and job if revealed to be gay — the GLAD brief uncovers a mostly hidden history of how gay people were conceived as dangerous criminals. This includes the infamous “sexual psychopath” laws, passed in the post-war years in more than half of the states, which allowed gay men to be arrested — and labeled “sexual psychopaths” — simply for being homosexual; articles in popular magazines stating that homosexuality can lead to “drug addition, 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). Most strikingly, the brief discusses the films Deliverance (1972) and Cruising (1980) as popularly promoting images of homosexual sex as equivalent to rape and murder. Relying on academic historians and theorists such as Chauncey, Cott, Martha Nussbaum, Richard Posner, Elisabeth Young-Bruehl, and Alan Wolf, GLAD’s brief painstakingly delineates how legal decisions are linked not only to due process but also to the cultures in which they are formulated.

Although District Court judge Posner called for Healy’s 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 will depend not only on the weight the court gives to the suppression of chief pathologist Wakefield’s evidence, but — as important — also on the court understanding that American justice in this instance was as much a product of ingrained homophobia as it was of the rule of law.

On the Web
"People With a History: An Online Guide to Lesbian, Gay, Bisexual and Trans History": //www.fordham.edu/halsall/pwh/

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