CONTRACTS AND HOMOPHILE LEGAL STRATEGY

Law was central to the homophile movement, the main movement for queer rights between World War II and Stonewall. But examinations of this movement’s engagement with law have exclusively focused on public law. Private law has received virtually no attention. This Note corrects that oversight. It unearths instances in which groups advocating for queer rights invoked contract law during the 1950s and 1960s. These moments reveal contract law’s important—and previously overlooked—role in homophile legal strategy.

Homophile groups’ use of contract law changed over the two decades of the movement. During the 1950s, those in the homophile movement used contract law to avoid legal disputes—a sort of “preventative law” that shielded queer people from the outside world’s scrutiny. But after the movement’s militarization in the early 1960s, queer organizations began making affirmative claims based in contract law. These claims served two purposes. On one hand, they were a tool queer people used to protect their public law rights when those rights were under attack. But organizations also saw the assertion of contract law rights as a goal itself—a key part of queer people’s growing rights consciousness.

This Note thus gives contract law its rightful due in the history of homophile legal strategy. Its findings demonstrate that private law should play a larger role in both our study of social movements’ legal strategy and our vision of a future in which marginalized groups have full equality under the law.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2024, Columbia Law School. For invaluable guidance and insight, I thank Professor Maeve Glass. For helpful feedback during the thinking and writing process, I thank Professor Sarah Seo, Professor Katherine Franke, Professor Eric Talley, Jake Millman, and Mary Claire Bartlett. For excellent editorial support, I am indebted to Kristin Bergeson McCalpin, Susie Emerson, Hafsah S. Hanif, Alexandria Iraheta Sousa, Kyle Oefelein, Zelly Rosa, and the rest of the staff of the Columbia Law Review. Loni Shibuyama at the ONE Archives at the USC Libraries provided archival assistance. This piece would not have been possible without the support of my family and friends and the contributions of queer activists who came before.

Introduction

In its October 1960 issue, ONE Magazine—the United States’ first widely distributed queer publication 1 Rodger Streitmatter, ONE Magazine, in Gay Histories and Cultures: An Encyclopedia 648, 648 (George E. Haggerty, John Beynon & Douglas Eisner eds., 2d ed. 2012) [hereinafter Streitmatter, ONE]. The magazine was founded in the early 1950s by a group of men in Los Angeles and published a collection of personal essays, news stories, and literature related to the queer experience. Id. While the magazine’s publication of queer material was radical for the time, it did not represent all queer people—its authors and audience were largely white, middle-class gay men. Mairead Case, ONE: The First Gay Magazine in the United States, JSTOR Daily (July 15, 2020), https://daily.jstor.org/one-the-first-gay-magazine-in-the-united-states/ [https://perma.cc/4E4M-9A4S] (last updated May 7, 2021). —began promoting a thirty-day, seven-country tour of Europe that it was helping organize. 2 Cruise Through Europe, ONE, Oct. 1960, at 32, 32. Set to depart in September 1961, the “CRUISE THROUGH EUROPE” 3 Id. The advertisement’s double entendre surely wasn’t lost on the magazine’s readership. aimed to bring ONE’s “world-wide readership” 4 Letter from Bd. of Dirs., ONE, to the Readers of ONE, in ONE, Nov. 1961, at 4, 4 [hereinafter ONE Board Letter]. together “Under the Wing of the World’s Outstanding Ceramic Designer.” 5 Cruise Through Europe, supra note 2, at 32. At a time when law enforcement commonly targeted queer Americans for associating with each other publicly—calling it vagrancy, disorderly conduct, solicitation, or something similarly vague 6 See Risa Goluboff, Vagrant Nation 46–52 (2016) (discussing police use of vagrancy laws to arrest queer people); see also Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle Over Urban Gay Life Before Stonewall 101–04 (2021) (“[V]ice squads in the 1950s turned their attention to the more public pockets of queer life. And, conveniently, they found themselves armed with a number of laws to enforce against them.”); Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551, 1564–65 (1993) (“Various sorts of laws have been used to harass gay people.”). Police could also target private queer conduct using sodomy laws, John D’Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940–1970, at 14 (2d ed. 1998), which carried harsh penalties but also high “evidentiary burdens,” Lvovsky, supra, at 104. Sodomy laws were on the books in every state until Illinois repealed its law by adopting the Model Penal Code in 1961. William N. Eskridge, Jr., Dishonorable Passions: Sodomy Law in America, 1861–2003, at 111 (2008) [hereinafter Eskridge, Dishonorable Passions]. —it is no surprise that over 300 ONE readers inquired about the trip 7 See ONE Board Letter, supra note 4, at 4; see also Let’s Cruise Through Europe, ONE, May 1961, at 32, 32 (noting “Only a Few Reservations Still Available”). in hopes of leaving the country and experiencing the “Gay Capitals of Europe” together. 8 Calendar of Events, ONE (Dec. 1969) (on file with the Columbia Law Review). This document, and many others this Note relies on, come from the extensive Gale Archives of Sexuality and Gender. Archives of Sexuality and Gender, Gale, https://www.gale.com/primary-sources/archives-of-sexuality-and-gender [https://perma.cc/MZ8J-BMAT] (last visited Oct. 25, 2023). Some of the sources related to this dispute come from the ONE Archives. ONE Archives at the USC Libraries, Univ. of S. Cal., https://one.usc.edu/ [https://perma.cc/4HND-J6MD] (last visited Feb. 3, 2024).

Four days before the group’s scheduled departure, however, Continental Travel Service—the travel agency helping ONE, Inc. organize the trip—abruptly canceled it 9 See Bd. of Dirs., Let’s (Not) Cruise Through Europe, ONE, Oct. 1961, at 32, 32. “on the pretext that too few had signed up to make the tour profitable.” 10 ONE Board Letter, supra note 4, at 4. After the cancellation, ONE’s Board of Directors published a letter that both accused the travel agency of “grossly violat[ing] . . . standards of honorable conduct” and urged the magazine’s readers to “completely shun[]” the service “as unreliable.” 11 Id.

But the Board did more than express anger; it countered Continental Travel Service’s actions using the law of contracts. The Board alleged that the travel agency sent ONE a signed statement saying that “the tour would take place in any event, even should registrations fall below the hoped-for quota.” 12 Id. The actual contract involved a question ONE posed to Continental Travel Service asking about “[t]he obligations of the Corporation, or its representative, should fewer than the thirty-two persons you have designated as the quota sign up for the tour.” Letter from William Lambert, Bus. Manager, ONE, to Continent Tour (June 7, 1961) (on file with the Columbia Law Review). The agency responded: “If fewer than 32 sign up, the tour will still go.” Letter from Newt Deiter, Exec. Vice-President, Cont’l Travel Serv., Inc., to William Lambert, ONE (June 14, 1961) (on file with the Columbia Law Review). The Board then asserted: “[T]he above constitutes a contract. . . . It is our intention to prosecute this view to the fullest possible extent.” 13 ONE Board Letter, supra note 4, at 4. In private correspondence to the travel agency, the Board demanded either that a ONE representative be sent “on the identical itinerary specified . . . at no cost” or that Continental Travel Service compensate ONE $5,000 for its losses. 14 Letter from George Mortenson, Chairman, ONE, to William Kraker (Sept. 21, 1961) (on file with the Columbia Law Review).

Engaging with legal concepts was not new to ONE. Its magazine discussed the law in nearly every published issue. 15 For some of the magazine’s notable discussions of law, see, for example, Lyn Pedersen, An Open Letter: Do Constitutional Guarantees Cover Homosexuals?, ONE, Jan. 1956, at 6, 6–8 (arguing for protection of queer people’s “basic legal rights”); E.B. Saunders, Reformer’s Choice: Marriage License or Just License?, ONE, Aug. 1953, at 10, 10 (wondering—in an issue whose cover read “Homosexual Marriage?”—if queer people would be “subject to marriage laws” in 2053 if “homosexuality were accepted to the point of being of no importance”); Don Slater, Victory! Supreme Court Upholds Homosexual Rights, ONE, Feb. 1958, at 16, 16–17 (explaining the recent Supreme Court case, One, Inc. v. Olesen, 355 U.S. 371 (1958), in which the Supreme Court found the magazine was not obscene); The Law, ONE, Jan. 1953, at 21, 21 (discussing the law of entrapment in its very first issue); Your Rights in Case of Arrest, ONE, Mar. 1953, at 16, 16 (conveying queer people’s criminal procedure rights to readers). It even litigated a case before the Supreme Court and won a seminal ruling declaring its queer material not obscene. 16 One, Inc., 355 U.S. at 371; see also Gregory Briker, The Right to Be Heard: ONE Magazine, Obscenity Law, and the Battle Over Homosexual Speech, 31 Yale J.L. & Humans. 64, 69–70 (2020) (outlining the history of the case); Slater, supra note 15, at 17 (“By simply not finding ONE Magazine obscene, the Supreme Court has completely and unanimously reversed the Post Office ban on the mailing of our October 1954 issue . . . .”). And ONE wasn’t alone. Engagement with the law was a crucial component of the homophile movement, the main movement for queer rights during the 1950s and 1960s. 17 See D’Emilio, supra note 6, at 2 (periodizing the homophile movement); Cain, supra note 6, at 1559–64 (highlighting litigation that organizations at the time brought); see also infra section I.B. For an explanation of why the leaders of the movement chose the term, see Cain, supra note 6, at 1558 n.42; see also Donald Webster Cory, History of the Homophile Movement, in East Coast Homophile Organization Conference ’64, at 1, 1–2 (1964) (on file with the Columbia Law Review) (using the term “American homophile movement” to describe the broad movement for queer rights at the time); The Ladder, The Ladder, Oct. 1956, at 1, 2 (using the term “female homophile”).

What was new in ONE’s response to the canceled Europe tour, however, was the Board’s decision to frame its response in terms of contract law. Homophile groups usually focused exclusively on public law topics like administrative law, constitutional law, and criminal law in their engagement with the law. 18 See supra note 15 and accompanying text. ONE’s Board, however, recognized both the importance and novelty of using contract law: “Our intention . . . is to make it as clear regarding commercial matters, as ONE has for years been doing concerning civil . . . rights, that homosexuals cannot be trampled under foot with impunity.” 19 ONE Board Letter, supra note 4, at 4. With this, the magazine announced contract law as an important legal tool queer people could use to assert their rights.

ONE’s response to the cancellation of the 1961 “Gay Tour of Europe” 20 The magazine adopted this name for the tour a few years later. See Gay Tour Triumphs, ONE, Jan. 1965, at 21, 21. invites us to turn our attention to the role of contract law (and private law more broadly) in the fight for queer rights. How did queer people use private law, and specifically contract law, in their fight for equality and dignity under the law? How effective was contract law in this fight? What are the implications for queer people today?

Reading the archive’s statements and its silences, this Note unearths previously unstudied instances of homophile groups invoking contract law in their fight for queer rights. These moments reveal contract law’s important role in homophile legal strategy. Over the course of the two-decade movement, however, homophile groups’ use of contract law changed. During the 1950s, homophile groups urged queer people to use contract law to avoid legal disputes and keep the outside world from invading their private lives. 21 See infra section II.A. But after the movement’s militarization in the early 1960s, queer organizations began making affirmative claims—like ONE’s—based in contract law, some of which had limited success. 22 See infra section II.B. These contract claims served two purposes. On one hand, they were a tool queer people used to create space to exercise and advocate for their public law rights. 23 See infra section II.B.2. But queer people also sought to advance and protect contract rights for their own sake, mirroring their approach to advocating for public law rights. 24 See infra section II.B.3. Contract law was thus a key part of queer people’s growing rights consciousness. 25 Rights consciousness is usually considered in the constitutional context, but this Note injects contract law into the discourse. For a foundational work on the topic, see Hendrik Hartog, The Constitution of Aspiration and “The Rights That Belong To Us All”, 74 J. Am. Hist. 1013, 1014–16 (1987) [hereinafter Hartog, Constitution of Aspiration] (outlining what it means to study “constitutional rights consciousness” and calling it “the mark of groups engaged in constitutional struggles”); see also Ely Aaronson & Arianne Renan Barzilay, Rights-Consciousness as an Object of Historical Inquiry: Revisiting the Constitution of Aspiration, 44 L. & Soc. Inquiry 505, 506 (2019) (reflecting on how Hartog’s foundational work has shaped the field). Studying rights consciousness involves locating “law[] in the changing aspirations of diverse groups within the society,” which this Note applies to the homophile movement. See Hartog, Constitution of Aspiration, supra, at 1034.

This Note gives contract law its rightful due in the homophile movement’s story. Imbuing contract law into the existing narrative both nuances our understanding of homophile legal strategy and calls attention to the porous divide between doctrines of law commonly studied in social movement histories (public law) and those often neglected (private law). 26 See infra Part I. These lessons suggest that private law should play a larger role in our vision for a future in which queer people have full equality under the law. 27 See infra Part III.

This Note is the first study to examine queer people’s assertion of their contract law rights in the pre-Stonewall era. 28 See infra section I.B. Part I surveys previous scholarship on homophile legal strategy, uncovers blind spots that arise from the field’s almost exclusive focus on public law, and explains this Note’s novel approach. Part II then illustrates the role of contract law in homophile legal strategy, beginning with the 1950s and continuing to the 1960s. Part III considers the present-day implications of these findings, offering potential avenues for further research and inviting today’s movement lawyers to increase their focus on private law as a tool to serve the queer community.