It’s 1958 and the Supreme Courts Convened to Face a Gay Rights Decision
The road to gay rights at the U.S. Supreme Court began not in San Francisco or New York, but in a small downtown Los Angeles office, where volunteer writers and editors in 1953 launched a new "magazine for homosexuals."
ONE, as it was called, offered thoughtful articles, defiant editorials and none of the racy photos or sex ads often found in the gay press. "The first issue was sold in bars in the Los Angeles area for 25 cents, about the price of a draft beer," said Michael C. Oliveira, an archivist at the magazine’s archives housed at the USC Library.
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Yet in an era when FBI Director J. Edgar Hoover was routing out "sex deviates" from the government and homosexuality was a crime in every state, the journal quickly drew negative attention, culminating with a U.S. Post Office ban of the magazine as "obscene." The cover story of the first issue censored by the postmaster proved decades ahead of its time, asking "Homosexual Marriage?"
To the rescue came a young, straight California attorney fresh out of law school.
The result was a little-noticed, one-line Supreme Court ruling in 1958 that didn't mention the word "homosexuality" and was largely forgotten until recently, but nevertheless scored the first gay rights victory at America's highest court.
Fifty-seven years later the high court is expected to revisit the gay rights issue, deciding soon whether to hear a case to determine whether gays and lesbians have a constitutional right to marry nationwide.
But the story of ONE vs. Olesen, hailed by the gay rights movement as a forgotten landmark, remains "the seminal gay rights case in America" because it extended free speech protection to the gay press, said Jonathan Rauch, a scholar at the Brookings Institution. “It put gay people on the path to freedom."
Eric Julber, now 90 and living with his wife in Carmel, Calif., is a surprising hero in the ONE saga. A new attorney with an interest in civil liberties, he was asked to write an article for ONE about the threat of government censorship and how to avoid it. His piece, titled "You Can't Print It!," became the cover story of the October 1954 issue — and the second target of a postal service seizure.
Julber, who was 30 at the time, promptly agreed to represent the magazine's editor pro bono.
"I said I would take their case, and I wouldn't charge a fee," said Julber, who grew up in Los Angeles, where his musician father worked at a Hollywood studio. "I thought they had a strong case. They were not running a night club. They were writing a magazine. It was a very conservative magazine. It was just the subject matter — homosexuality — that made it 'obscene.'"
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Few other legal experts at the time agreed. Fellow attorneys ribbed him for representing a gay journal and predicted no judge would take his side. Even the American Civil Liberties Union office in Los Angeles rebuffed him. "I guess it was too hot to handle for them," Julber said.
Undeterred, Julber filed suit against Los Angeles Postmaster Otto Olesen, contending the seizure of the magazine violated the constitutional principles of free speech and equal protection. His suit contended ONE was subjected to discriminatory treatment because of prejudice against gays.
Federal judges in California were not ready to approve this type of magazine. U.S. District Judge Thurmond Clarke in Los Angeles handed down a two-page opinion in March 1956 upholding the Post Office's decision that ONE was "non-mailable matter." As evidence of obscenity, he cited one piece of fiction in which a woman recalls an affair with her college roommate and decides to live with the woman rather than marry a high school boyfriend.
This was "obviously calculated to stimulate the lust of the homosexual reader," Clarke said. He also cited as "filthy" a bawdy poem called "Lord Samuel and Lord Montagu" and an ad for a Swiss magazine which could, he said, "lead to the obtaining of obscene matter."
Clarke concluded: "The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected."
Julber appealed to the U.S. 9th Circuit Court of Appeals in San Francisco, but lost in a 3-0 decision handed down in February 1957.
The 9th Circuit's decision could well have been a death sentence for ONE, whose circulation had reached 2,000. The magazine was having trouble delivering issues to its readers. To get around the postal ban, ONE continued to sell copies on news stands and sent copies in brown envelopes from various post offices in other locations, Oliveira said.
Julber persuaded ONE's founding editors, Dale Jennings and Don Slater, to appeal the 9th Circuit's decision to the Supreme Court. "They agreed to pay my expenses to travel back to Washington. That's the way you had to do it then. I took along a copy of the magazine," he recalled.
He told them the rulings by the California-based judges reflected an intense prejudice against homosexual people and predicted the Supreme Court would take a "rational view of the matter."
Julber wrote a petition asking the high court to consider, for first time, whether homosexuality could be openly discussed in literature without being automatically banned as obscene.
Lower courts had allowed publications advocating nudism and polygamy, he argued. So why had the 9th Circuit "singled out and discriminated against" ONE because it dealt with homosexuality, he asked.
His petition was filed on June 13, 1957. By coincidence, the Supreme Court was struggling at the same time with the question of obscenity in a case involving Samuel Roth, a New York book dealer, who was appealing his conviction for selling sexually explicit books. In a 6-3 decision, the justices upheld his conviction, but also sharply narrowed the definition of what is considered obscene.
"All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties" of the 1st Amendment, said Justice William J. Brennan in Roth vs. United States, handed down on June 24, 1957. "Sex and obscenity are not synonymous," he added.
First Amendment experts cite the decision as a landmark. "Roth was a revolution in obscenity law," said Robert Corn-Revere, a Washington law who specializes in the 1st Amendment. In its wake, the court limited prosecutions to sexually explicit, "hard core" pornography.
With that ruling fresh in their minds, several Supreme Court law clerks read Julber's petition — as well as the magazine itself — and advised the justices it was not obscene.
"This was an easy one for the liberal justices. It was a speech case," recalled Norman Dorsen, who was then a law clerk to conservative Justice John Marshall Harlan and would go on to lead the national ACLU from 1976 to 1991. But even the conservatives were not in favor of censorship practiced by the Post Office.
"The conservatives on the court then — Felix Frankfurter, Potter Stewart and Harlan — were not like the real conservatives we have now. They were more tolerant,” he said.
Brennan, the author of the Roth opinion, looked at all the petitions on his own. He would have seen the magazine and its supposedly obscene articles. After taking several votes, the justices decided on a simple, one-line ruling issued on Jan. 13, 1958, reversing the 9th Circuit decision.
The magazine reported the "electrifying news" in the next issue. “For the first time in American publishing history, a decision binding on every court now stands … affirming in effect that it is in no way proper to describe a love affair between two homosexuals as constitut(ing) obscenity."
USC law professor David Cruz said the ONE decision was most important not as a matter of legal doctrine but because of "its on-the-ground effects."
"By protecting ONE," he continued, "the Supreme Court facilitated the flourishing of a gay and lesbian culture and a sense of community at a time when the federal government was purging its ranks" of suspected gays.
Julber said he was delighted to win, but disappointed the court had not issued a written opinion explaining its reasons. He was honored at a banquet sponsored by ONE, and he went on to have a long career as a personal injury lawyer. But he never again had a case go to the Supreme Court.
Though his high court victory garnered little attention at the time, Julber said he was proud of what he had accomplished. "I always thought it was a major case because it said homosexuals had a right to express their own views and a right to their own literature."
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