Prop 8 Trial Re-enactment, Day 2 Chapter 4

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\f0\fs24 \cf0 >> THE COURT: Very well. We will soon be ready for our next witness. Let
me just mention a couple of items. With respect to the proposal for recording these proceedings
and the local rule change, all of the responses that have been received are arrayed in the
jury room. Counsel may inspect them. I have filed those that came from organizations.
These are lawyer organizations, I believe exclusively, but did not file the individual
comments because of their numerosity. I'll be pleased to receive whatever suggestions
counsel have with respect to how we deal with those. And with respect to a letter dated
January 11, that I received from Mr. Cooper, concerning the seating arrangement and the
direction that the camera is -- that is focusing on counsel, is pointed at, and he expressed
concern that he and members of his team could be observed in the background conferring,
I've seen the situation now that you're seated on the other side of the table. And I hope
it's no disappointment to you, Mr. Cooper, but you cannot be observed. (Laughter) You
are out of camera range. So you can consult with your colleagues without fear of being
picked up on the camera. All right. Mr. Boies, are you taking the next witness? \
\ >> MR. BOIES: No, Your Honor. The next witness
is Professor George Chauncey. He is a witness that has some issues that are particular to
the City and County of San Francisco, and also some issues that are broader. In order
to make the presentation most efficient, and avoid having multiple lawyers examine, each
for separate parties, we've agreed that the counsel for the City and County of San Francisco
will do the entire examination. \ \
>> THE COURT: That will be fine. I assume that's without objection, Mr. Thompson. \
\ >> MR. THOMPSON: No objection, Your Honor.
\ \
>> THE COURT: All right. Ms. Stewart. \ \
>> MS. STEWART: Thank you, Your Honor. We would like to call the -- the plaintiffs and
the plaintiff-intervenors would like to call Professor George Chauncey to the stand. \
\ >> THE CLERK: Raise your right hand, please.
\ \
>> GEORGE CHAUNCEY, called as a witness for the Plaintiffs herein, having been first duly
sworn, was examined and testified as follows: \
\ >> THE WITNESS: I do. \
\ >> THE CLERK: Thank you. State your name,
please. \ \
>> THE WITNESS: George Chauncey. \ \
>> THE CLERK: And spell your last name. \ \
>> THE WITNESS: C-h-a-u-n-c-e-y. \ \
>> THE CLERK: And your first name. \ \
>> THE WITNESS: George. \ \
>> THE CLERK: Thank you. \ \
>> DIRECT EXAMINATION \ \
\ \
>> MS. STEWART: Good afternoon, Professor Chauncey. You are here as an expert, and I'd
like to start by asking you a little about the source and the nature of your expertise.
Would you tell us what academic degrees you hold. \
\ >> MR. CHAUNCEY: Yes. I have a B.A., M.A.,
M.Phil, and Ph.D. in historyi, all from Yale University. The Ph.D. in 1989. \
\ >> MS. STEWART: What academic positions have
you held? \ \
>> MR. CHAUNCEY: I had a one-year postdoctoral fellowship at Rutgers University, and then
a one-year assistant professorship at New York University. And then I taught for 15
years at the University of Chicago. The first several years -- started as an assistant professor
of history. And about the last ten years was a full professor of history. And then three
and a half years ago, I moved to Yale, where I'm a professor of history in American studies.
\ \
>> MS. STEWART: Would you tell us about the books that you've authored or edited. \
\ >> MR. CHAUNCEY: One is called Gay New York:
Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940. That was published
in 1994. Another is, Why Marriage: The History Shaping Today's Debate Over Gay Equality.
It was published in 2004. Also co-edited a book called Hidden from History, which was
an early collection of essays in lesbian and gay history. And I'm constantly -- currently
working on finishing a book about post war gay culture in politics. \
\ >> MS. STEWART: Would you also tell us a little
bit about the other kinds of academic publications you have authored. \
\ >> MR. CHAUNCEY: Uhm, I've published something
more than a dozen articles and scholarly journals and collections. \
\ >> MS. STEWART: And how about conference papers?
\ \
>> MR. CHAUNCEY: And I've given many conference papers and chaired sessions at the major professional
meetings of the American Historical Association, Organization of American Historians, American
Studies Association. And have been invited to give lectures across the United States,
in Europe, Latin America, China, and Australia. \
\ >> MS. STEWART: Have you received any awards
for your scholarly work? \ \
>> MR. CHAUNCEY: Uhm, Gay New York, which was my dissertation at Yale, received two
awards there. One was for the co-winner of the best -- prize for best dissertation in
American history. And then it won the University's top dissertation prize for a dissertation
in any department. And, then, as a book it won two awards from the Organization of American
Historians. One was for the first best book in any field of history. And the other was
for the best book published in the previous two years in American social history. Won
the Los Angeles book times -- sorry, the Los Angeles Times book prize, and a couple of
other prizes. \ \
>> MS. STEWART: Would you tell us a little bit about the kinds of sources that you study
in the work that you do in your research and writing and your teaching. \
\ >> MR. CHAUNCEY: Well, as a social historian,
I draw very widely on sources. So I've looked at court records, police records, probation
department records, records of various private moral reform societies, records of gay organizations,
social service agencies. I've also looked at diaries, correspondence. I've interviewed
-- actually, sort of lost track, but I think it's about 180 elderly gay men, about their
experiences. I've also looked at films, advertising, so forth. The sorts of things that I also
teach in my teaching. Of course, I assign a range of studies by historians and other
scholars, and then primary documents which would be drawn from all these fields, as well
as films. I often teach films in my classes, and teach students how to interpret them in
the context of the historical period. \ \
>> MS. STEWART: And how about government or political materials? \
\ >> MR. CHAUNCEY: Well, in addition to the
records of the courts and the police I've mentioned, I've looked at Congressional records
and reports, publications put out by mayors' offices, and their correspondence, and so
forth. \ \
>> MS. STEWART: Would you just quickly describe for the Court the kinds of courses that you've
taught, summarizing, given the 20-year history of your teaching? \
\ >> MR. CHAUNCEY: Sure. Broadly, courses in
20th century American history. The broadest being a 2-semester lecture course of the United
States since 1919. And, then, more specialized courses on post World War \
\ >> II American culture in society, urban history,
social history, the history of gender and sexuality. Lesbian and gay history is a lecture
course and is a seminar. \ \
>> MS. STEWART: Your Honor, we would like to offer Professor Chauncey in the subjects
that he just described. That is, in the history of -- 20th century U.S. history, broadly,
but with specialization in gender and sexuality, and the social, cultural, and political history
of lesbian and gay men, and their place in American society. \
\ >> THE COURT: Mr. Thompson. \
\ >> MR. THOMPSON: We have no objection, Your
Honor. \ \
>> THE COURT: Very well. You may proceed, Ms. Stewart. \
\ \
\ >> MS. STEWART: Dr. Chauncey, before we go
into the substance or the details, if you will, of your opinions, could you just give
the Court a brief summary of the expert opinions that you're going to offer to the Court today.
\ \
>> MR. CHAUNCEY: Well, most broadly, I guess, my reading of the historical record is that
lesbians and gay men have experienced widespread and acute discrimination from both public
and private authorities over the course of the 20th century. And that has continuing
legacies and effects. This has been manifested in the criminalization of sexual intimacy
and association; the discrimination in public accommodations, in employment; censorship
of images about gay people and speech by gay activists; stereotyping and demonization of
lesbians and gay men. And that all this has been drawn on and reinforced sustained patterns
of prejudice and hostility. \ \
>> MS. STEWART: I'd like to turn, then, to the first of those things that you mentioned,
criminalization. Could you tell us, give me an example of one of the major ways that gay
people have been criminalized. \ \
>> MR. CHAUNCEY: Well, the first obvious example would be sodomy laws. Although, there is a
complicated history there. They were enacted in one form or another in the early American
colonies. Typically, they didn't specify homosexual conduct and only homosexual conduct. Though,
some of the Puritan colonies did actually just quote Leviticus, prohibiting a man from
lying with a man. But, very often, they prohibited a range of non-procreative forms of sexual
course between men and men, me and women, men and animals in some cases. They also didn't
criminalize all forms of homosexual conduct. Relatively few of them criminalized female
interactions, for instance. But these laws were reformulated after independence; changed
over the course of the late 19th century. They were enforced more in the colonial period;
and then relatively little for some period after that. Enforcement increased in the late
19th century. And, then, even then, they often focused on particular kinds -- certainly,
some people who engaged in consensual homosexual relations were prosecuted. They typically
went after sex with minors, sex involving violence, and so forth. What's striking about
the development of those laws over the course of the 20th century is that even though they
were broadly construed, of course, they came to symbolize the criminalization of homosexual
sex in particular. Ironically, this was probably most striking in the Supreme Court's decision
in Bowers v. Hardwick, where they were deciding about a Georgia statute, which actually criminalized
anal and oral sex between men and women, heterosexuals, as well as homosexuals, and yet they describe
that case as if it were simply bearing on homosexual sex. And I think that, broadly,
that's been the way that sodomy has come to be understood. And, of course, some of the
laws did penalize just same sex. And in the 1960s, and especially '70s, as more and more
states decriminalized sodomy as part of their general reform of the moral code, they --
several states actually enacted new legislation that specified homosexual conduct, such as
the Texas statute. \ \
>> MS. STEWART: Were there other ways, besides the sodomy laws, that gay people have been
criminalized, as you have used that term? \
\ >> MR. CHAUNCEY: Well, beginning again, in
the late 19th century, when you had the emergence of highly-developed and more visible lesbian
and gay subcultures in large American cities, there was a stepped-up policing of those communities
and people. And the police began to enforce a range of laws that didn't specifically mention
homosexuality, but could be used against -- I will just give you one example. The disorderly
conduct statute as, of course, a very broad rubric, could be used by the police and courts
to penalize a wide range of behavior that they considered disorderly. And in New York
City, which I've studied -- although, there are comparable laws in California -- we can
see that these laws began to be applied more and more to homosexuals. (Reporter interrupts.)
Sorry. The disorderly conduct statute began to be applied more and more to homosexuals.
And, actually, at some point, the police started registering disorderly conduct, parentheses,
degenerate, in their own police record books. And then in 1923 or '24, the New York state
legislature specified as a form of disorderly conduct one person standing about in a public
place for purposes of soliciting a man for unnatural sexual acts. And so this law then
was used both, certainly, to literally criminalize one man trying to pick up another man, to
ask him to have sex, but was also used to arrest people who were found in a bar or a
club, a restaurant. Sometimes it was used against people who were simply found at a
gay party, in a private home. And over the course of period from 1924 until 1966, when
New York's mayor, John Lindsay, stopped the police from using entrapment to enforce this
law, there were approximately 50,000 arrests under this charge. And the -- the scale of
this, I guess, came home to me when I -- at some point when I had interviewed 75 or
a hundred gay men. Actually counted up and realized that half of them had been arrested
at least once on a gay-related charge in their lives. And this was the most common charge.
And so it was a really a very pervasive form of policing. \
\ >> MS. STEWART: You mentioned New York. And
I take it that was just an example. Did this happen elsewhere? \
\ >> MR. CHAUNCEY: Yes. There was a similar
law used in California. The vagrancy law was often used in California. And these sorts
of laws, general-purpose laws, were sort of tailored to deal with homosexuals in a variety
of states. \ \
>> MS. STEWART: What effects did the discrimination of gay people, of which you have given these
examples, have on gay people? \ \
>> MR. CHAUNCEY: Well, I think one effect was simply to register the society's disapproval
of their behavior and make that abundantly clear. And the idea -- especially this idea
that sodomy laws were anti-homosexual laws, has been used in recent years to justify a
range of forms of discrimination. You couldn't let openly-gay soldiers serve in the military
because what they do, what defines them in some sense as being homosexual, is a criminal
offense. It was mobilized in some of the anti-gay-rights referenda of recent decades. But it stood
as a sign of social disapproval of homosexuals. And then, of course, it just had palpable
effects on people's lives. As I said, it meant that a phenomenal number of people, at one
point or another, ran across the law, and that they knew that the police were out there
looking for them. \ \
>> MS. STEWART: Did some people -- did it affect their willingness to go out and be
in public? \ \
>> MR. CHAUNCEY: It did for some. There were certainly many very bold people who went out
and about; went to gay meeting places; certainly, developed gay social networks and the like.
But, at times when there were police crackdowns -- and periodically these would happen in
major cities, even small towns around the country -- and the heat was on, as it were,
people were then much more likely to be careful about going out and associating, especially
-- \ \
>> MS. STEWART: What -- (Simultaneous colloquy.) \
\ >> MS. STEWART: -- if you did get arrested?
\ \
>> MR. CHAUNCEY: Well, one of the biggest fears -- disorderly conduct itself, of course,
is not that significant. A misdemeanor. But it -- it opened up much more consequential
dangers to people. So that both the lawyers I've talked with, who represented men who
had been charged this way, and some of the men I've interviewed, who faced these charges,
all agree that their first concern was that the fact that they had been arrested on this
would lead the police to call their relatives to confirm their identity, call their landlord
to confirm their address, call their employer to confirm their workplace. And so the biggest
fear, really, was that this would expose them as being gay, and that that would lead to
much more significant social consequences: The loss of a job or a home or of social respect;
rip ties with their family. \ \
>> MS. STEWART: And did it lead to those kinds of losses, in fact? \
\ >> MR. CHAUNCEY: It certainly did sometimes,
yes. \ \
>> MS. STEWART: You mentioned as the second topic or item that you were going to discuss
today was discrimination, is the word I think that you used. And I wondered if you could
describe the discrimination or give some examples of the discrimination that has been perpetrated
on gay people. \ \
>> MR. CHAUNCEY: Right. I was going to discuss discrimination in public accommodations and
employment. Start with public accommodations. Probably one of the most important instances
of this was the fact that in 1933, with the repeal of prohibition, first New York state,
and then successively many other states, issued regulations that prohibited bars from serving
-- sorry, bars, restaurants cabarets, or anyplace with a liquor license, from serving
drinks to lesbians or gay men, or allowing them to congregate on the premises. And this,
of course, just had a profound impact on lesbian and gay sociability for lesbians and gay men,
as well as for heterosexuals. Bars and restaurants were places to go to meet your friends, to
socialize. But they were particularly important for lesbians and gay men, because they had
to be so careful to hide their gay identities in so many of the social settings, at the
workplace, often with their biological families, and so forth. So that they were really keen
to find places where they could go and be more open, just socialize with people of their
own kind. And what it meant was that this criminalization meant that, a, when people
went to a regular bar or restaurant, a normal bar or restaurant, they typically had to be
very careful to hide the fact that they were gay, for fear of being excluded. And so they
often sought out places that had decided that they could make money with the snitch market;
would pay higher prices for drinks. So there were so few places where they could go and
be open. But those places, to survive, had to pay bribes to the police, or often to organized
criminal syndicates which had relationships with the police, or were even run by organized
criminal syndicates. So it meant that gay life was just inmeshed in a web of criminality
because of the criminalization of gay and lesbian sociability. \
\ >> MS. STEWART: Did any of the bars sort of
explicitly exclude people in light of the law? And how did they do that? \
\ >> MR. CHAUNCEY: Well, they did it in a range
of ways. Certainly, bartenders in a normal bar, quote/unquote, if they realized that
someone was gay, could simply 86 them, as they put it; refuse to serve them a drink;
tell them they are 86'd, they had to leave the bar. Which could be quite embarrassing.
I have interviewed people who have who had that experience in front of their friends,
and found it really humiliating. But, then, in the lesbian and gay bars themselves, particularly
-- well, actually, not just in those. In bars in neighborhoods with a gay reputation,
bar owners sometimes put a sign over the bar itself that would say -- I've heard various
signs described, and seen them in the literature -- "If you are gay, please stay away." Or
"It is against law to serve homosexuals. Please do not ask us to serve homosexuals." And so
this conveyed a very clear message to both gay and straight customers that homosexuals
were a despised category to be excluded. And they were also part of the way the bars tried
to protect themselves from the police, to show that they were being vigilant to exclude
gay people. \ \
>> MS. STEWART: So how did the authorities enforce those laws? \
\ >> MR. CHAUNCEY: Well, they -- the beauty
of the liquor licensing and the licensing system was that it meant that a small business
owner who ran a bar had to get a license to sell, or a restaurant, cabaret, had to get
a license to sell liquor, and had to enforce the regulations imposed by whatever the liquor
authority was; and knew that he or she always risked losing that license and really losing
that investment if the liquor authority realized they were not enforcing those regulations.
So, first of all, the licensing system itself meant that every single bar had a staff that
was trying to make sure the bar wouldn't get in trouble. But, secondly, local patrolmen
could step in periodically, would sort of look in, see what was happening in your place,
make sure it wasn't disorderly. And then the liquor authorities themselves had a staff
of special investigators who would go undercover into restaurants and bars, and so forth, to
just make sure that a range of regulations were being followed, including the prohibition
against serving homosexuals. They, then, if they saw them, would report this. And this
could lead to the closure of a place. \ \
>> MS. STEWART: Did other authorities besides the police, the local police or the liquor
authorities, get involved in that policing effort? \
\ >> MR. CHAUNCEY: Well, bars that were close
to military bases, certainly in the big cities during the war, were also put under surveillance
by a sort of coalition task force of military officials and police officials, because the
military was quite keen to make sure that its sailors and soldiers weren't going to
such places. So they joined with the police in investigating them; had their off-limits
list; tried to get places closed. So other forces were brought in. \
\ >> MS. STEWART: So if you were police officer
and you were enforcing this effort, or a military person, how did you know the bar was serving
gay people? \ \
>> MR. CHAUNCEY: Well, it's a good question. There were two major techniques used. One
was to record, take note of an act of one man picking up another man. And it was usually
a man in this case, since that was a sure sign that homosexuals were there. So what
the police and the liquor authority agents did, often, was to send plainclothes policemen
into the bars, who would strike up conversations with customers, lead them on, and then, at
some point, when an invitation was issued to leave the bar and go home, bring out the
handcuffs and arrest them. So that would lead to the arrest of the bar goer. And they would
also be the best proof possible that homosexuals were at the bar. And so it would then be reported,
and that would lead to proceedings to revoke the liquor license. The other way that was
used -- and I've seen this in a bunch of court records, where a bar has resisted, has tried
to challenge the revocation of its license. The police would actually point to stereotypical
gender behavior or cross-gender behavior that was associated with lesbians and gay men,
and use that as evidence that a bar was patronized by them. So, for instance, a police woman
might report that she had seen two women dancing together, or women with short hair, or women
who were wearing some articles of masculine clothing, or women who seemed to stagger,
swager around a bar in a way that was more masculine than a woman should walk. Or, likewise,
they would point to men whose clothing was just a little too unconventional, a little
too colorful, whose hair was too long, who addressed each other in effeminate ways. The
most startling example, to me, was sort of one of the signs the police officer gave that
a bar was gay was that he had overheard two men talking about the opera; something that
no real man would do in the 1950s. (Laughter) So there were just a range of ways that sort
of unconventional behavior, gender behavior, stereotypically associated with lesbians and
gay men was used to identify them. I think it's actually a kind of striking thing, because
it's one of the clearest examples of how the policing of homosexuality has often been used
in a very specific legal sense, and then broadly and culturally, to police gender norms so
that, actually, people who went into bars, who behaved in unconventional ways, cross-gendered
ways, could be suspected o being homosexual. And a bar might push them out for that very
reason. \ \
>> MS. STEWART: Did any of the bars or restaurants who -- where the liquor authorities tried
to enforce the law, resist or endeavor to fight the charge? \
\ >> MR. CHAUNCEY: Yes. Some did. I'd have to
say that most just closed quietly, because they realized that they weren't going to be
able to beat this charge. But many did try, either by appealing to the liquor authority
itself, or by going to the courts. Usually, the first line of defense was simply that
they didn't know and they couldn't be expected to know that there were gay people there.
Thus, the signs, "It's against the law." You know, "Don't ask us to break the law." But,
periodically, people did pose a challenge to the idea of this law, that you could actually
discriminate against a class of people on the basis of their homosexual status. And
in both New York state and in California, in the 1950s, there were rulings by the states'
highest court that invalidated that kind of discrimination. So a famous case in California,
the Black Cat Cafe, here in San Francisco, which lost its license, I think, around 1949,
filed a suit. It got a state Supreme Court ruling in '51 that said, actually, you couldn't
discriminate in this way. And, then, for several years there are was relative peace and quiet
for bars in San Francisco. And then the San Francisco Police Department started a campaign
against homosexuals, '54, '55, sweeps of streets and parks, cracked down on bars. In '55, the
state legislature circumvented that ruling by passing a law that outlawed bars or restaurants
that became what it called resorts for sex perverts. And the Alcoholic Beverage Commission,
which was just then established, then launched a campaign against such bars and restaurants,
which led to many more being closed. Finally, there was another state Supreme Court ruling
which said, no, they meant it; you couldn't do this. And, nonetheless, Mayor George Christopher,
here in San Francisco, had had a tough reelection campaign in '59. And his opponent had charged
that he had allowed San Francisco to become a mecca for homosexuals. And he was so determined
to show that wasn't true, that once he was reelected he launched a two-year-long campaign
against gay life in the City. Which led to, by one historian's account, 40 to 60 arrests
a week, and about a third of the bars being shut down. \
\ >> MS. STEWART: After the Supreme Court ruling?
\ \
>> MR. CHAUNCEY: After. After this ruling. And after that, things slowed down in San
Francisco. But there continued to be such raids in Los Angeles. \
\ >> MS. STEWART: So when did these sort of
bar raids and, you know, this kind of activity end? \
\ >> MR. CHAUNCEY: Well, they -- they continued
periodically, even in places where they had been ruled unconstitutional. I mean, most
famously, of course, in 1969, the police raided the Stonewall Bar, in Greenwich Village, in
New York, after in fact the courts had already ruled that it was legitimate to serve lesbians
and gay men. In that case, they were going after mob-oriented bars. These raids periodically
happened, certainly in San Francisco and L.\ \
>> MR. CHAUNCEY:, into the '60s and '70s. Later in L.\
\ >> MR. CHAUNCEY: And, actually, last summer,
in Fort Worth, Texas, the police went into a bar and arrested seven of the patrons. And
there was quite a controversy about that. So, obviously, the number of such events has
dramatically fallen off, but it happened at very different rates across the country.
\ \
>> MS. STEWART: So can you describe the effects of that practice of basically shutting down
places where gay people gathered, on gay people? \
\ >> MR. CHAUNCEY: Well, it -- it just meant,
again, that they had -- it was one more way it was conveyed to them that they were a despised
class of people and a group of outlaws in the eyes of the law; and that they had to
take great care in protecting or keeping secret the fact that they were gay. And I think
-- and I've said this already, but it sort of more broadly helped -- not just for gay
people, but sort of in the public at large, associated gay life with criminality. There
were periodically campaigns against gay bars. And they often talked about the police corruption
that was required to keep these bars going. And instead of pointing to the criminalization
of them as the predicate of that, they talked about gay bars as corrupters of the police.
And it contributed to the growing sense on the part of many people that gay people were
dangerous and a part of the violent -- seedy, violent criminal underworld. \
\ >> MS. STEWART: So, earlier you mentioned
you were going to talk about employment discrimination, and give some examples of that. Can you turn
to that subject now? \ \
>> MR. CHAUNCEY: Sure. I guess the first striking example I'd mention was in the military itself.
There had have been various regulations affecting homosexual conduct and homosexuals in the
military before the second World War, but it was really at the beginning of the second
World War that for the first time, facing the necessity of mobilizing literally millions
of people very quickly to fight the war, that the military decided to absolutely exclude
all homosexuals and to institute screening procedures that would keep homosexuals out.
And so this became a part of the induction process, the screening process for everyone
who was volunteered or drafted to serve in the war. Not surprisingly, they didn't ferret
out many people, despite this policy. I think it was only five or six thousand. Most young
gay people, like their heterosexual peers, were deeply concerned to defend the country
in the face of Japanese and German attacks. And they -- so they, you know, found ways.
They were quite accustomed, at this point, finding how to pass as straight. So they got
passed through. And, of course, people in smaller towns were afraid that if their Selective
Service Board learned that they were gay, word would spread very quickly to their families
and neighbors about this. And so they were very concerned to keep that hidden. But the
military was sort of aware of this, and so it had various procedures in place to try
to discover homosexuals, and discharged homosexuals during the war. And, actually, the discharges
increased during the period of demobilization at the end of the war, when the manpower needs
were not quite so pressing. And this regulation, well, in one form or another, is continuing
to the present day. \ \
>> MS. STEWART: So what happened to soldiers who had served but were discharged, at some
point along the way, for being gay? \ \
>> MR. CHAUNCEY: Well, first, of course, they faced the stigma of not serving their country,
those who were not allowed into the military. If you were a man of a certain age, and you
weren't in the military or a critical defense industry, people really had questions about
why you weren't. And so this was really humiliating to people. And then people who were either
kept out or were discharged -- actually, including people who had served in combat, who were
discharged -- were then denied benefits under the GI Bill after the end of the war. And,
of course, the GI Bill was just a phenomenally important piece of social engineering in the
post-war years. It gave virtually an entire generation of young men privileged access
to education, financial support for continuing their education, preferential access to jobs,
help in buying a home. A lot of the post war suburban building boom was financed through
the GI Bill. It had profound consequences. And it meant that homosexuals who were kept
out of the military, or discharged as homosexuals, were prohibited from getting those benefits,
and so in many ways were kept from that citizenship right. \
\ >> MS. STEWART: And what about the several
thousand that were ferreted out, I think is the word you used? I know you mentioned that
they could be found out by family members or people in their towns, but did it affect
their ability to, you know, sort of participate as Americans in any way in our society? \
\ >> MR. CHAUNCEY: Well, you know, at sort of
the most basic practical level, in the early days, especially after the war, people wanted
to see your discharge papers when they were going to hire you, very often. And they would
see that was what you were discharged for. And that was not a very good thing if you
were looking for a job. I think, in a way, it also had sort of a very -- well, and it
certainly impressed upon people that they were being denied their membership in the
community, their citizenship, really. And I think, in some way, it really conveyed that
to the whole country. I mean, the war was such an important moment in bringing people
together, and bringing together people who had been really divided during the first World
War. There had been a lot of demonization of Catholics during the war, and a lot of
antisemitism. In the first world war, that is. And the second World War really brought
this -- I mean, think of the kind of classic movies that come out of World War II, where
you've got the Jew from Brooklyn, and the Irish guy from Chicago, and the Italian from
San Francisco. And homosexuals were not a part of that group. There was a really profound
way in which gay people were being excluded from the cultural image of the nation. \
\ >> MS. STEWART: And you said, I think, earlier
that the policy has continued in one way or another to this day. But I wonder if you could
explain what Don't Ask, Don't Tell, what that policy did. \
\ >> MR. CHAUNCEY: Well, of course, President
Clinton, as a candidate, had promised to repeal the prohibition on lesbians and gay men serving
in the military. And, then, when he assumed the presidency, there was such a firestorm
of opposition to that, on the part of the leadership of the military and grassroots
groups across the country, that he retreated from that, and produced a compromise: Don't
Ask, Don't Tell. Which, theoretically, said that so long as gay people didn't tell the
fact that they were gay, the military wouldn't go around anymore asking if they were. In
fact, it didn't quite work out that way. People were found out. And something like about 9500
people were discharged in the first decade of the policy of Don't Ask, Don't Tell. \
\ >> MS. STEWART: Were there -- let me just
ask it this way. What were the effects on the country, of its exclusion of gay people
from military service, either more recently or in the past? \
\ >> MR. CHAUNCEY: Well, as a number of people
have pointed out, it -- it meant that the country lost the services of patriotic citizens
who wanted to join in the country's defense. And so the -- you know, in some cases, those
were quite important services. There's been a lot of attention given, recently, to a number
of people who have been discharged who were translators of Arabic. Something pretty important
right now. But, broadly, it meant that the country lost the services of large groups
of people, and had the financial cost associated with that of recruiting people to take their
place and training of people to take their place. \
\ >> MS. STEWART: I'd like to ask you, now,
to look at the Plaintiffs' Exhibit that's marked 872, in your binder, if you would.
\ \
>> MR. CHAUNCEY: Would that be this binder? \
\ >> MS. STEWART: I think it would be -- \
\ >> MR. CHAUNCEY: This is Cott's Direct binder.
These are Nancy Cott's binders? \ \
>> UNIDENTIFIED SPEAKER: May I approach, Your Honor? \
\ >> MS. STEWART: Have we given the Court --
sorry, Your Honor. \ \
>> THE COURT: This is PX872? \ \
>> MS. STEWART: Yes, Your Honor. \ \
\ \
>> MS. STEWART: 872. \ \
>> MR. CHAUNCEY: The thin one? \ \
>> MS. STEWART: In the fat binder. \ \
>> MR. CHAUNCEY: Yes. \ \
>> MS. STEWART: Dr. Chauncey, are you familiar with this report? \
\ >> MR. CHAUNCEY: Yes. This is a report by
the U.S. Government Accountability Office, to Congressional requesters. And it's titled,
"Military Personnel Financial Cost and Loss of Critical Skills Due to the Department of
Defense's Homosexual Conduct Policy Cannot be Completely Estimated." \
\ >> MS. STEWART: Have you reviewed this report?
\ \
>> MR. CHAUNCEY: I have looked at this report. \
\ >> MS. STEWART: Does this report indicate
at least some of the costs that the military incurred by virtue of the Don't Ask, Don't
Tell policy? \ \
>> MR. CHAUNCEY: Yes. It estimates that over the first ten-year period of enforcement of
that policy, they estimated that it may have cost the Defense Department about $95 million
in 2004 dollars, to recruit replacements for service members separated under the policy.
And then they estimated it cost approximately another 95 million to train their replacements.
\ \
>> MS. STEWART: Your Honor, I would like to move this document into evidence. \
\ >> MR. THOMPSON: No objection, Your Honor.
\ \
>> THE COURT: 872 will be admitted. (Plaintiffs' Exhibit 872 received in evidence.) \
\ \
\ >> MS. STEWART: So, Professor Chauncey, besides
the discrimination in employment in the military, was there other employment discrimination?
Or can you give another example of employment discrimination that was significant in our
country's history? \ \
>> MR. CHAUNCEY: Well, after the second World War, the employment of homosexuals in the
civilian sectors of employment also became a major issue. And in 1950, Senator Joseph
McCarthy announced that he knew the names not only -- or had a list of names not only
of Communists in the State Department and other agencies, but of sex perverts. This
led to a couple of Congressional committees investigating this charge. And one of them,
a standing committee, subcommittee which produced a report called, "On the Employment of Homosexuals
and Other Sex Perverts in Governme in 1950." And this report surveyed, was based on investigation
of the way the government was dealing with this problem, and took note of the fact that
checking Civil Service Commission records, they found that since this had become more
of an issue in 1947, two and a half years that they looked at, some 1,700 people had
been prohibited from getting civilian jobs because it had been discovered that they were
homosexual. They were concerned that the procedures for identifying homosexuals were inadequate,
and for ferreting them out and discharging them. So they recommended a tightening of
procedures. And in 1953, shortly after Dwight Eisenhower became president, one of his first
executive orders decreed that civilian -- that homosexuals would be prohibited from
civilian as well as military employment in the federal government. And it actually also
required private companies, which had contracts with the government, to ferret out and fire
their homosexual employees. \ \
>> MS. STEWART: When -- well, first, let me ask you, how did the McCarthy senate's treatment
of gay people in their investigation compare to their treatment of Communists? \
\ >> MR. CHAUNCEY: Uhm, well, they -- they gave
a lot of attention, of course, to Communists, and were quite concerned about Commun infiltration
into the State Department in particular, and other agencies of the government. But the
historian who has done the closest study of this policy estimates that at the height of
the McCarthy period in the 1950s, the State Department actually dismissed more suspected
homosexuals than Communists. \ \
>> MS. STEWART: I'd like to ask you, Dr. Chauncey, to look at Plaintiffs' Exhibit 2337. I think
it's towards the end of your binder. Can you identify that exhibit for the Court? \
\ >> MR. CHAUNCEY: Yes. \
\ >> THE COURT: 2337? \
\ >> MS. STEWART: Yes, Your Honor. \
\ >> THE WITNESS: Yes. This is the report I
mentioned, "Employment of Homosexuals and Other Sex Perverts In Government." \
\ >> MS. STEWART: Your Honor, I would like to
move this document into evidence. \ \
>> MR. THOMPSON: No objection, Your Honor. \
\ >> THE COURT: 2337 is admitted. (Plaintiffs'
Exhibit 2337 received in evidence.) \ \
\ \
>> MS. STEWART: Turning for a minute to the -- we'll come back to that one at a later
point. But I wanted to turn to President Eisenhower's executive order. I think you said it required
that employees who were in the federal government, who were found to be gay, would be discharged.
And I think -- did I understand, also not hiring? \
\ >> MR. CHAUNCEY: Right. \
\ >> MS. STEWART: When did that policy end?
\ \
>> MR. CHAUNCEY: Uhm, that policy ended for most federal agencies in 1975, when President
Carter rescinded that policy. Though, it continued to be in effect for some of the highly-sensitive
intelligence agencies, and so forth. And then it was only in the 1990s that President Clinton
both ended the policy bearing on intelligence agencies, and also prohibited discrimination
in federal employment. \ \
>> MS. STEWART: Can you explain the difference between what President Carter did and what
-- I mean -- \ \
>> MR. CHAUNCEY: Sure. \ \
>> MS. STEWART: Besides the scope. \ \
>> MR. CHAUNCEY: Right. So, basically, President Carter said that federal agencies were no
longer required to dismiss their homosexual employees or keep homosexuals from their employ.
And, then, President Clinton enacted anti-discrimination order that they could not discriminate. So
in that intervening period, agencies were not required to discriminate, but they could
discriminate. \ \
>> MS. STEWART: Was the discrimination in public employment limited to the federal government?
\ \
>> MR. CHAUNCEY: No. There -- across the country, state governments took up this issue and,
in a variety of ways, tried to institutionalize employment discrimination against lesbians
and gay men. Just give you one example. In the late '50s, state legislature had a legislative
investigation committee which launched an investigation of homosexuals in the state
university system, which eventually led to the firing of more than a dozen members of
the faculty and other staff. And I think more than 300 people were interrogated over the
course of that investigation, which lasted several years. And so there were a variety
of ways that this sort of campaign was carried on at the state level. And at the city level,
I mean, I've seen in my own research that, for instance, the Welfare Department in New
York City had to fire several of its welfare workers in the 1950s, when it was brought
to their attention and they had been discovered as being gay. \
\ >> MS. STEWART: Did the mandated discrimination
in the federal government or other government affect access to jobs for gay people in the
private sector? \ \
>> MR. CHAUNCEY: Well, as I said, President Eisenhower's executive order required private
companies with government contracts to ferret out and fire their homosexual employees. I
would say that more broadly, though, gay people faced customary discrimination and a range
of -- from a range of employers. And so it was -- the degree of -- the enforcement of
this varied from occupation to occupation and company to company. But, certainly, most
people realized that they had to be very careful to hide their homosexuality at the workplace,
for fear of losing their jobs. \ \
>> MS. STEWART: Did employment discrimination in any sector, private, public, federal, state,
what have you, limit gay people's job choices, or channel them into particular professions?
\ \
>> MR. CHAUNCEY: Well, of course, we have no real statistical evidence to base this
on. But I would say that, based on the interviews I've done, that, certainly, there were a good
number of gay people who just took the risk and pursued the profession that they wanted
or the line of work they wanted, and did what they needed to, to hide their identities at
work. But there were also a good number of people who just didn't want to risk that,
and didn't want to have to put up with that. And so, in effect, sort of funneled into the
kinds of low-status jobs where people were less likely to care that they were gay. Someone
who was sort of stereotypically associated with gay people even today. But, being a waiter.
Being a hair dresser. Taking on being a low-level clerical worker. Kinds of niches in the employment
sector where people felt they would be somewhat safer. \
\ >> MS. STEWART: So what were the effects of
this widespread discrimination in employment on gay people generally? \
\ >> MR. CHAUNCEY: Well, I guess I'd have to
say that, broadly, it meant that gay life really was pushed underground, indeed, and
sort of everything I've described so far. And I think some people interpret that to
mean that there was very little organized gay life at all. And that's simply not the
case. There in fact were meeting places. There were parties in private apartments. People
did have a gay social life. But they had to be very, very careful to hide it. And although
this had already been true earlier in the 20th century, most people didn't want to take
this risk. It really increased the stakes for people. And so it meant that a -- they
really became sort of a world within a world. It was very secretive, had its own codes,
so that people could talk with one another without alerting outsiders. Actually, the
word "gay" itself is probably the best example of this. Gay liberationists in the 1970s were
determined to bring gay people out of the closet. And so they used -- they called themselves
gay liberationists. But in the 1940s, and '50s, and early '60s, very few straight people
realized that gay people, homosexuals, had given "gay" a sort of homosexual meaning.
So that a lesbian standing at the office watercooler could say to another woman that she had gone
to a gay place the night before, had a gay time, met a gay gal, and really communicate
quite a lot to the person she was talking to, without worrying that someone next to
her would overhear this and understand what was going on? But it just meant that there
was a level of secrecy required. Of course, this also meant that fewer heterosexuals,
or relatively few heterosexuals, thought that they knew gay people. And in the context of
that is a variety of studies have shown sort of ignorance, lack of contact with people,
has increased this prejudice. So it's easier for demonic stereotypes to develop of gay
people, given that real-living gay people had to be so careful to hide themselves.
\ \
>> MS. STEWART: Did the -- or, I should say, has the discrimination in employment in the
state and local public arena ended? \ \
>> MR. CHAUNCEY: Uhm, no. It's not ended. It's -- certainly, I think it's clear that
it has lessened since the 1950s. And there have been a series of laws passed at the local
and state level that prohibit such discrimination. There are a lot of complaints of such discrimination
brought under those laws. But there's still -- I believe these are the right figures
-- 20 states that do not prohibit discrimination in public employment. And another -- and 28
that don't prohibit it in private employment. \
\ >> MS. STEWART: The third area that you mentioned
you would talk about today was censorship. And I'm wondering if you could explain what
you mean when you said that gay people have been subject to censorship. \
\ >> MR. CHAUNCEY: Well, one of the most significant
examples of this would be the censorship of the representation of homosexuality in the
movies. In the early '30s, there was the mass censorship campaign, led by a group called
the "Legion of Decency," led by Catholic leaders, with Jewish and Protestant support, which
was concerned about what they considered to be the immorality of Hollywood films. This
was, of course, very early in the history of Hollywood and the film industry. And so
they pressured the -- the Hollywood studios to enact some sort of censorship code, which
it eventually did, in order to try to forestall federal censorship. And, then, in 1934, under
more pressure, they really started enforcing this code with the Production Code authority.
And this code imposed certain rules on how certain delicate issues would be dealt with:
Crime, adultery. These could be represented, but in certain ways. Usually, crime had to
pay, et cetera. The offender needed to be punished. But there were certain things that
they prohibited from being included in the movies at all. For instance, interracial relationships
were absolutely forbidden from being represented. And lesbian and gay characters, or the discussion
of homosexuality, or even, as the code put it, the inference of sex perversion was prohibited.
So that this meant that for a generation, until the code began to fall apart in the
late '50s and early '60s, Hollywood films, the dominant medium of the mid 20th century,
could not include gay characters, could not explore gay lives. \
\ >> MS. STEWART: You mentioned that the code
was enforced, got more enforced, I think you said, in 1934? \
\ >> MR. CHAUNCEY: '4. \
\ >> MS. STEWART: How was it enforced? \
\ >> MR. CHAUNCEY: The Hollywood studios were
required to submit their scripts to the Production Code administration, the Hays Office, which
would review the scripts and bring to their attention anything that they thought was problematic.
So there would often be a back and forth -- I've read some of these exchanges -- a
back and forth between the studios and the Production Code about exactly what could or
could not be included. So it wasn't just a kind of general, informal regulation. It was
very strictly managed. \ \
>> MS. STEWART: Did the Hays code affect television? \
\ >> MR. CHAUNCEY: Uhm, the Hays code itself
didn't. But, in some ways, there was even more concern about television in its early
years. Television expanded very rapidly into American homes in the early 1950s. But, in
those days, way before cable, there were, you know, only a handful of networks. Most
people had access to just two or three stations. So there was a lot of concern about what it
meant to bring that into the home, where children might see things that parents wouldn't necessarily
be able to supervise. So the television networks were actually much more constrained than even
Hollywood, in dealing with certain issues. So that there were very few, very few characters
who could even be hinted at as being gay, in the first several decades of television.
And, you know, there began to be -- certainly, there were some, and some discussion of homosexuality
that began to increase in the -- really, just in the 1980s. And as recently as 1989 --
so just over 20 years ago -- a very popular TV series called Thirtysomething did actually
have a scene written in, where it showed two men in bed together, with the sheets pulled
up to here (indicating), for about 15 seconds. And this was so shocking, that various religious
-- conservative religious organizations organized boycott threats. And the sponsors withdrew
from that segment. And a lot of local affiliates either didn't show it at all, or bumped it
out of prime time, to midnight. And that sort of briefly put a chilling effect on the inclusion
of gay characters. But by the mid '90s, the numbers had begun to increase. And as recently
as 1996, there was so astonishing that Ellen Degeneres would come out as a lesbian as a
character on her show and as a person, that it put her on the cover of Time Magazine.
This idea was so -- it's almost, for the young people who might hear this, probably unpossible
to believe that this was the case. But this was sort of the way that for several generations
that people just did not have gay characters in the major medium -- media of their culture.}