Category Feminism, Sexuality, and Politics

Gay Marriage: Precedents, Alternatives, and Politics

In his dissent from the Lawrence decision, Associate Justice Antonin Scalia predicted that overturning Bowers left “shaky grounds” for state opposi­tion to same-sex marriage. At the time, I doubted that Scalia’s fears about gay marriage would soon materialize. Thus, the speed with which same-sex marriage gathered momentum in the United States surprised me. Marriage in Canada or Denmark or civil unions in France all seemed far more pre­dictable. In November 2003, however, when the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health ruled in favor of same-sex couples seeking to marry, its decision unleashed long-pent-up de­mands for state recognition of same-sex unions, and not merely in the guise of the civil unions instituted in Vermont in 2002. Although the Massachu­setts court gave the state legislature six months to respond to the decision, lesbians, gay men, and their straight allies on both coasts acted in advance of the law. Even in my progressive hometown of San Francisco, I had never expected to witness thousands of couples seeking marriage licenses, accom­panied by dozens of city officials, all willing to engage in civil disobedience to facilitate the gay and lesbian weddings that took place in early 2004.

Political battle lines over gay marriage soon formed, and as with abortion and sodomy law, historical research contributed to the ensuing legal cases. Dozens of historians testified, consulted with lawyers, and signed amicus briefs in cases in New York, New Jersey, Oregon, Washington, and Califor­nia. Historians of marriage such as Nancy Cott have been deeply involved in drafting some of the arguments, and I have signed several of these briefs.21 While I both support and seek the extension of full legal rights to lesbians and gay men, I want to acknowledge that my personal response to the exu­berance about same-sex marriage parallels my ambivalence about the legiti­mation of homosexuals in the military—that is, I oppose legal exclusion of gays and lesbians from these institutions, but I would also resist compulsory enlistment in either of them, whether through informal social pressures to marry or a formal military draft. For the historian, though, the gay-mar­riage cases provide another window on how to balance tradition and social change when legal advocates turn to the past.

Both precedent and change in American history can inform the legal de­bates about gay marriage. From the standpoint of precedent, even though re­ligion, law, and public opinion have long defined marriage as a heterosexual institution, we can find social-historical examples to support an alternative tradition of same-sex unions. However, seeking one kind of precedent can obscure other traditions, including opposition to marriage itself. A second and stronger use of historical research asks what social changes have enabled gay marriage to become a possibility at this time in our history.

The arguments from past precedents, while exceptional, attest to histori­cal variations in family forms. Long before the current wave of civil unions and weddings, Americans formed same-sex, extralegal partnerships that included common domicile, financial interdependence, sexual relations, and sometimes parenting. In one manifestation, men and women who crossed genders might live with same-sex partners. For example, some Na­tive American men who felt or dreamed that their true identity was female could wear women’s clothes, work at women’s tasks, and become the wives of men. Among the Mohave, women who crossed genders could acquire wives themselves, establish households, and raise children (either adopted or from a wife’s previous union).22 Although not culturally institutionalized, gender crossing sometimes occurred among Anglo settlers in the nineteenth-cen­tury West, such as “Mrs. Nash,” a man who married several soldiers. In the nineteenth century, as well, newspapers frequently published reports of women who passed as men, often to earn wages, and some of whom married women. In upstate New York, Lucy Ann Lobdell became Reverend Joseph Lobdell and lived for a decade with his wife, Maria Perry. In the twentieth century, some women continued to adopt male identity and to create fami­lies with other women. Thus, midwestern jazz musician Billy Tipton, born a woman, married several times and raised children who did not know until his death that their father was a womanT3

Men and women who retained their gender identity also established marriagelike relationships in the era before homosexual identity. They ex­changed rings or set up common domicile, such as the “Boston marriages” named for the city in which many educated women paired off at the turn of the twentieth century. These women often owned property jointly, planned their travels together, shared family celebrations, and usually slept in the same bed.24 Cultural assumptions of asexuality tended to protect respect­able female couples from scandal. In the early twentieth century, however, male lifelong companions, such as Harvard professor F. O. Matthiessen and his lover Russell Cheney, could not escape the increasing stigma associated with homosexuality; Matthiessen eventually committed suicide. As gay and lesbian subcultures formed in large cities in the twentieth century, oppor­tunities for same-sex unions expanded along with explicit sexual identities.

Among lesbians, working-class “butch-femme” couples often paired off and at least some “married.” In Harlem during the 1920s, African American les­bians staged large weddings, complete with bridesmaids and even marriage licenses (after a gay man applied at City Hall as the surrogate for a lesbian “groom”).25 By the 1950s, a growing gay bar culture in American cities pro­vided public space for butch-femme couples to meet, and many of them subsequently lived together.

Invoking these precedents of same-sex unions, however, raises serious historical problems for legal advocates of gay marriage. For one thing, while these practices imitated marriage, most Americans who acknowledged same-sex erotic desires could not participate in them. Aside from being ex­ceptional, these precedents tend to conflate a range of practices over time under the rubric of “marriage.” In contrast to the strategy in the Lawrence brief, which distinguished between earlier and contemporary constructions, the search for same-sex unions in the past blurs distinctions in order to emphasize continuities. Unlike the logic in the Lawrence brief, too, these precedents rely on an anachronistic, ahistorical definition of gay or homo­sexual, conflating distinctive identities for political purposes. Perhaps for these reasons, historians have not elaborated on precedents for same-sex unions in the amicus briefs concerning gay marriage.

Another problem with searching for precedents to support a tradition of gay unions is the risk of overlooking other precedents that complicate the meaning of marriage and challenge its historical hegemony. In the past, for example, some heterosexuals have ignored, resisted, or questioned marriage as an institution. Not all heterosexual couples formally married. During the nineteenth century, African American slaves who wished to wed could not do so legally. In the southern backcountry, informal marriage was common. For some urban working-class couples, common-law marriage sufficed.26 Utopians living in communities such as John Humphrey Noyes’s Oneida experimented with forms of group marriage. Free-love advocates, including Frances Wright, rejected state-sanctioned marriage on principle because it inhibited individuals. “Free love” referred not to sex with multiple partners but to the belief that love rather than marriage should be the precondition for sexual relations. In his 1852 tract, Love vs. Marriage, Marx Edgeworth Lazarus argued that just as the state thwarted the individual, the “legalized prostitution” of marriage oppressed women and suppressed love. Highly unpopular, free lovers risked arrest for expressing their beliefs. In 1887, for example, when Lillian Harmon “married” Edwin Walker without blessing of church or state, both were imprisoned in Kansas for violating the mar­riage act by living together as man and wife without having been legally married.27

Although they pioneered what would later become the practice of co­habitation, free lovers shared many values with their legally married con­temporaries. They formed long-term committed relationships, and most of them condemned homosexual relations as unnatural. By the early twentieth century, anarchist and free lover Emma Goldman reversed the latter judg­ment by endorsing love in any form, but she still rejected church or state regulation. Even those bohemians and radicals who objected to monogamy often remained deeply rooted in the values of romantic unions, struggling with the jealousies that could erupt when they embraced open relationships. Despite this history of isolated efforts to circumvent marital laws, the insti­tution of marriage has remained a widespread and privileged site for hetero­sexual unions.

The current historians’ amicus briefs in support of gay marriage largely ignore precedents of past gay unions and prior challenges to state-sanctioned marriage. Instead, they concentrate on the historical transformation of mar­riage in American culture that has been well documented in recent scholar­ship. At least three measures illustrate this history. First, reproduction is no longer a primary function throughout the life of a marriage. Average marital fertility rates have fallen from almost eight births in 1800 to around two births in 2000; parents now live longer after children are grown; and many more couples choose to remain childless, even with the availability of tech­nologically assisted reproduction. Second, as marriage has become a route to personal happiness and women have gained greater economic leverage, both partners feel freer to exit. Longer lives, fewer children, and the goal of happiness have all fueled the divorce rates; almost as many marriages end as survive. Rather than forming lifelong unions, most heterosexual couples now practice a form of serial monogamy. Third, the state’s role in privileging marriage has expanded because federal benefits (social security, inheritance, immigration, taxes) flow through this institution^8

While opponents of gay marriage cite the tradition of heterosexual unions, the recent historians’ amicus briefs counter by emphasizing the malleability of marriage over time. In particular, they note the shedding of many of the patriarchal trappings of wifely obedience in favor of a modern, companion­ate model of marriage. For example, the brief of history scholars in a 2005 Washington State gay-marriage case challenged the “traditional definition of marriage” by pointing out that “far from being a rigid institution with a fixed definition, marriage is, and has always been, evolving in response to so­cial and cultural change.”29 Similarly, the “Brief of Professors of History and Family Law” in Samuels et al. v. The New York State Department of Health, a 2005 case before the New York State Supreme Court, described the history of marriage as “a history of change.” To support the point that marriage law has never been static, both briefs recalled the decline of the principle of coverture in favor of a wife’s independent legal identity in the nineteenth century; the latter brief also cited, among other legal changes, the rejection of the marital rape exemption in the 1980s.30

In addition to the shift from patriarchal to companionate marriage, the civil rights movement provides historical context for gay-marriage cases. Recent efforts to legalize same-sex unions parallel earlier claims made by members of minority groups who sought full citizenship through the transformation of marriage law, particularly by challenging prohibitions on interracial marriage. Overturning state “antimiscegenation” statutes took decades, with key decisions in California in 1948 (Perez v. Sharp) and by the U. S. Supreme Court in 1967 (Loving v. Virginia). In Goodridge, the Massa­chusetts Supreme Court cited this history:

In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance — the institu­tion of marriage—because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination31

Similarly, the Washington State amicus brief addressed the relationship be­tween racial equality and marital equality, noting that while “expanding the freedom to choose one’s partner without regard to race was a fundamental change,” the institution of marriage survived the demise of antimiscegena­tion statutes.32

By concentrating on arguments about what might be called a tradition of legal change, the historians’ amicus briefs have not addressed several broader contexts that help explain the current demands for same-sex mar­riage. While heterosexual marriage has changed in law and practice, the campaign for gay marriage would not have gathered legal momentum with­out significant transformation in same-sex partnerships as well. Once rel­egated to a shadowy cultural margin, since the 1970s, gay communities have increasingly replaced the closet with public visibility. The sexualization of women in modern America, which removed the mask that once protected romantic friends, enabled the formation of openly lesbian partnerships. For

men who could once pursue only anonymous, furtive sex, an openly gay culture led not only to the open celebration of pleasure but also to the search for life partners. For both women and men, webs of fictive kin relations help sustain gay identity and community, including former partners who become family and coparents who raise their nonbiological children with friends and lovers. As more lesbian and gay couples began to live together openly in committed relationships, they sought legal protection unavailable to unmar­ried partners.

The explosion of lesbian and gay social worlds, however, is not sufficient to explain the recent quest for marriage. Throughout the 1970s and 1980s, most lesbian and gay activists were more likely to criticize the institution for its patriarchal heritage than for its exclusivity. I would argue that since the 1980s, both the aids crisis and the expansion of gay parenting made legal marriage a more pressing issue. In the wake of the epidemic, political lines diverged over the critique of anonymous sex, with some activists defend­ing an alternative sexual subculture and others calling for more commit­ted marriagelike relationships. More important, life partners who served as caretakers encountered unacceptable limits on hospital visitation and au­thority to determine medical procedures; some could not inherit property they had helped purchase.

In the same era, gay parenting expanded. Since the 1960s, individual les­bians and gay men have appeared in courts to retain custody of or visita­tion rights to children born in prior heterosexual marriages. Increasingly, however, parenting in same-sex relationships has become a matter of choice, given the opportunities afforded by artificial insemination, surrogacy, and adoption. The resultant “gay-by boom” that began in the 1980s and has gath­ered force in the past decade has added another level of similarity between contemporary same-sex and opposite-sex families. Like the personal re­sponse to aids, parenting has unleashed a demand for greater legal protec­tions, including second-partner adoption. Judicial victories by lesbian and gay parents have in turn paved the way for the gay-marriage movement.33

In short, marriage and homosexuality, once viewed as diametrically op­posed, have increasingly converged in recent American history. Marriage is no longer the sole venue for caring, sexual, and reproductive partnerships, nor is it a lifelong or primarily reproductive institution for most Americans. Many heterosexuals still form permanent unions and raise children, but so do lesbians and gay men; the latter, however, do so without protections granted their heterosexual counterparts. Thus, since the 1970s, same-sex couples have appeared in state courts to obtain marital rights. Religious commitment ceremonies, “gay weddings,” domestic partnerships, and, in recent years, civil unions and legally defiant marriage licenses are all re­sponses to demands for public recognition and legal protection.34

So, too, the gay movement has had to respond. Although reluctant to sup­port gay-marriage cases through the 1980s, groups such as Lambda Legal Defense have joined the quest for recognition. New organizations focus solely on the right to marry, buoyed by the decriminalization of sodomy in Lawrence v. Texas and the legalization of same-sex partnerships in parts of Europe and Canada. Even those who do not wish to marry have been forced to take a stand in solidarity with those who do, particularly in the face of legislation such as the Defense of Marriage Act (1996) and the proposed con­stitutional amendment to limit marriage to a man and a woman^5

In the rush to expand or contract access to marriage, however, we should not forget the radical critique launched by free lovers and anarchists and echoed by radical feminists, gay liberationists, and queer activists. Given conservative opposition to same-sex marriage, it has become politically awk­ward for liberals to question the importance of gay marriage. Yet some critics, such as historian Lisa Duggan, ask what alternatives we ignore by focusing solely on marriage. Why not establish social benefits for all forms of caring relations — or for all individuals — rather than privileging marital unions?36 Members of the far left and the far right find some common ground in the concept of civil unions, albeit for slightly different political reasons. Radical critics recommend civil unions for all, separating the religious institution of marriage from state regulation. Some conservatives who desire to preserve for heterosexuals the symbolic sanctity of the term “marriage,” along with at least some of its benefits, have begun to cede ground to once-radical civil unions, even as they seek to outlaw gay marriage federally.

Now that the first court-mandated same-sex marriages have taken place in Massachusetts, popular opinion, which continues to oppose legalized same-sex unions, may either polarize or adapt, depending in large part on how politicians exploit the issue (as the 2004 elections illustrated well). Historians do best explaining the past, not predicting the future. But it is tempting to extrapolate from the admittedly uneven comparison with race. Like the Supreme Court in Brown, which mandated integrated schools, and in Loving, which legalized interracial marriage, the Massachusetts court ruled in Goodridge to redress an inequality at a time when most Americans opposed the practice that the decision legalized. Just as civil rights leaders once hesitated to press for interracial marriage, many lesbians and gay men have mixed feelings about both marriage as a political priority and the costs of conservative backlash.37 Nonetheless, these prior rulings did encourage gradual shifts in public opinion. And as in the civil rights movement, the sight of thousands of protesters — such as the same-sex couples lined up around San Francisco’s City Hall — can affect national sentiment. In the end, far more than any precedents from the past, it will be couples like these who will determine the next chapter in the history of marriage.

In the meantime, historians continue to weigh in on the question of gay marriage, both as expert witnesses and in amicus briefs. What characterizes their contributions thus far is the interpretation that marriage has evolved as an institution, both socially and legally. One of the New York briefs, in distinguishing between “history as description and history as justification for discrimination,” summarized well the limitations of legal tradition: “The history of the exclusion of same-sex couples from marriage describes but does not explain or justify the continuation of that rule.”3® At times, these arguments prevail, as when the San Francisco Superior Court ruled in 2005 that the California Family Code’s definition of a valid marriage as a “union between a man and a woman” violated the state constitution because that document allowed that “the legislative embodiment of history, culture and tradition is constitutionally permissible” only when an “underlying rational basis” justifies the law. Just as the 1948 California Supreme Court decision in Perez overturned the state’s ban on interracial marriage because of its ir­rational basis, and in light of the Lawrence ruling, the San Francisco court ruled that a tradition of past discrimination alone could not justify a ban on gay marriage.39 Other courts, however, have overruled decisions based on these grounds, and the verdict is far from clear, even in liberal states like California and New York.

I hope these reflections on the role of historical interpretation in cases concerning sexuality and reproduction have complicated the meaning of “history and traditions” in legal advocacy. At times, historians have sup­plied precedents of past practices, from abortifacients to same-sex unions; at other times, historians have insisted on distinguishing between past and present constructions of sexuality, including the shift from sodomy to ho­mosexual identity. Historians have balanced tradition and history differ­ently in each of the legal issues I have reviewed. The Webster brief, submitted during the Reagan administration, relied more heavily on original intent, seeking precedents of original tolerance in support of reproductive rights, a strategy grounded in the absence of anti-abortion statutes at the time the

Constitution was written. In Lawrence, historians applied both precedent and change. While educating the Court about the changing definition of sodomy and the recent appearance of homosexuality as an identity, their brief, as was the case in Webster, appealed to a past marked by relative toler­ance toward behaviors not yet specifically criminalized. Not surprisingly, given the weight of legal precedent in favor of opposite-sex unions, the cur­rent historical arguments in support of gay marriage foreground the past malleability of legal definitions of marriage.

In working on cases in which the history of sexuality can inform contem­porary policies, historians clearly have more to offer to legal advocacy than mere precedents. We bring layers of interpretation, revealing how economic, demographic, and social changes require new public policies. Only some of these analyses may be useful within the parameters of specific legal argu­ments. But as historians continue to collaborate with lawyers, I hope we can challenge any static view of “history and traditions.” Traditions may well guide us, whether in the form of legal precedents or social practices, but history is at heart a study of change. One of our most important jobs as historians may be to educate not only our students but also judges, juries, and policymakers about that dynamic process.

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Sodomy Laws, Tradition, and Social Change

My concerns about the role of historical interpretation in legal advocacy resurfaced in later court cases concerning homosexuality. Just as the op­ponents of abortion had claimed long-standing hostility to the practice, the Supreme Court in Bowers v. Hardwick (1986) based its support for state antisodomy laws on the “ancient roots” of state regulation of homosexual conduct. That decision, which helped justify a range of discriminatory prac­tices against homosexuals, stood until 2003, when the Court heard the case of Lawrence v. Texas, which challenged a state prohibition on sodomy for homosexual but not heterosexual acts. Lawrence provided a critical oppor­tunity for the Supreme Court to reconsider Bowers, and once again, a group of historians collaborated to produce an amicus brief.

In this case, a historian, University of Chicago professor George Chauncey, drafted the document at the request of Lambda Legal Defense, a gay rights organization, and in collaboration with several private attorneys working pro bono. The deadline was even tighter than with Webster. Within two weeks, Chauncey prepared at least three full drafts, circulating each to a small group of scholars. Six of us offered substantive revisions and contrib­uted historical evidence, and nine scholars signed the final brief.17 As with Webster, I raised questions about the framing of the argument and the use of evidence, and Chauncey incorporated into the brief most of my sugges­tions and those of other signers. Successive drafts refined the central argu­ments about the relation of the modern concept of homosexual identity to the historical enforcement of sodomy laws. Some of my concerns — such as introducing the broader context of the regulation of sexuality—could not be fully addressed in the thirty-page brief. Chauncey shared my concern, but as he explained at the time, “it gets really complicated when we try to boil this sort of argument down for this short and consequential a brief.”i8 After reading the drafts of amicus briefs being prepared by the Cato Institute and the American Civil Liberties Union, which addressed more fully the history of sodomy law, I felt reassured about our decision to focus more heavily on the history of homosexual identity.

As in the Webster case, the historians’ brief in Lawrence had to take into account both legal precedents concerning homosexuality and changing so­cial attitudes. For the most part, in response to the static historical logic in Bowers, the historians emphasized change over time rather than tradition. It would have been a much harder task to claim implicit sexual rights than in the Webster case, given the explicit antisodomy laws in early America. Rather, the historians’ brief in Lawrence highlighted changing constructions of and attitudes toward homosexuality. Distilling a generation of scholar­ship, the brief explained that although a range of nonprocreative sodomitic acts — between men and women, men and men, and humans and ani­mals — had been proscribed in colonial America, these laws had not singled out “homosexual sodomy.” Indeed, the term “homosexuality,” referring to a distinct identity, did not appear until the late nineteenth century.

But the document also created its own version of originalism when it pre­sented an alternative legal tradition to counter the “unmitigated hostility” claimed in Bowers, which had held that “homosexual conduct” had been subject to state regulation “throughout the history of Western civilization.” To show that there had been no continuous tradition of singling out gay sex as illegitimate, the Lawrence brief cited biblical and medieval texts that applied the terms “sodomy” and “unnatural acts” “inconsistently to a di­verse group of nonprocreative sexual practices” that could include sex “in the wrong position or with contraceptive intent” (5). For colonial and nine­teenth-century America, the brief used legal sources to document an early focus on bestiality, buggery, and other nonprocreative acts rather than “ho­mosexual conduct.” The Texas ban on homosexual sodomy, it argued, could not be justified in terms of long-term historical precedent.

The brief went on to show that laws specifically penalizing homosexu­als — as opposed to a broader category of nonreproductive sexual acts — were largely a product of the late twentieth century and not the original intent of the framers of the Constitution. Rejecting the logic of Bowers, the brief pro­claimed that “the specification of ‘homosexual sodomy’ as a criminal offense does not carry the pedigree of the ages but is almost exclusively an invention of the recent past” (4). In short, the broad proscription on all nonprocreative acts that dominated colonial laws eventually narrowed to target a relatively new class of individuals — homosexuals. The brief thus applied a version of original intent in reference not to the framers of the Constitution but to the popular construction of sexual categories in early America. Homosexuality per se had not been condemned in the eighteenth century, it argued, since it had not yet been constructed as a sexual category. Rather than claiming an implicit “right” or even a degree of tolerance, the brief suggested a “relative indifference” to sodomy among authorities in the early republic.

Despite this reliance on tradition, a dominant interpretation in this brief concerned the changing historical applications of sodomy laws, which had “varied in content over time.” In response to the growing visibility of lesbian and gay subcultures in the twentieth century, the discriminatory impact of these laws had intensified. As a generation of scholars has shown, height­ened state prosecution accompanied this new visibility, particularly from the 1930s through the 1960s. That era of “public hysteria,” however, should not be read backward ahistorically as a static hostility that could be used to justify laws directed solely at homosexual behavior.

The brief in Lawrence emphasized historical change in other ways as well. It showed how the movement of women into the wage labor force and full citizenship contributed to undermining older medical views of lesbians in the early twentieth century. The brief documented an important shift from a period of escalating persecution of homosexuals after World War II to one of growing public tolerance in media and law since the 1970s. These contexts helped explain why the psychiatric profession eventually removed homo­sexuality from its diagnostic list of pathologies. In sum, change over time rather than original intent required the removal of discriminatory statutes such as the Texas law at issue in this case.

In the process of revising successive drafts of the brief and despite ex­tremely tight time constraints, our dialogue over sources and interpretations was greatly facilitated by e-mail, which had not been available during the Webster case. As in that earlier brief, however, time and space constraints meant that it was not possible to do justice to all of the perspectives that his­torical writing would consider. For example, in documenting the era of inten­sified prosecution, we could only allude to the broader historical context of American sex panics, which periodically targeted groups such as prostitutes and homosexuals in antivice crusades. Another theme that we could only suggest but that influenced the Court’s decision concerned the changing ap­plication of sodomy laws: Had they initially been used primarily to prosecute nonconsensual sexual relations, either between men and men or between men and boys, since rape laws explicitly covered only heterosexual relations?19 If so, the application of sodomy laws may have broadened in the twentieth cen­tury, effectively criminalizing once-tolerated same-sex consensual relations.

Finally, in pointing to a decline in hostility toward homosexuality since the 1970s, the historians’ brief may have been overly sanguine. To claim that “in the last decade, the acceptance of lesbian and gay men as full and equal members of our society has become commonplace” (26) certainly resonates with the experience of living in San Francisco, Los Angeles, or New York. The marketing of queer and lesbian subjects in the national media notwith­standing, I suspect that on the subject of homosexual rights, the battle for public opinion will continue for some time into the future. The brief did acknowledge the persistence of discriminatory laws — the Texas statute among them — but it concluded that such laws “hold no legitimate place in our Nation’s traditions” (29). It may be formulaic to invoke tradition in these constitutional cases, but in Lawrence, perhaps more so than in Web­ster, historians had to counterbalance arguments based on “tradition” with a reliance on social change in order to justify a decision that would overturn discriminatory laws against gay sexual practices.

On 26 June 2003, by a six to three majority, the Supreme Court ruled that the Texas statute against homosexual sodomy violated the due process clause and was thus unconstitutional.20 The decision, which overturned Bowers, stated that the Constitution provides individuals, including homosexuals, the right to choose their personal relationships “without being punished as criminals” (2) and to engage in consensual sexual practices “without inter­vention of the government” (18). One section of the decision drew directly from the historians’ brief to correct the erroneous interpretation of the “an­cient roots” of hostility to homosexuality. The majority opinion, written by Associate Justice Anthony Kennedy, stated, for example, that “there is no longstanding history in this country of laws directed at homosexual con­duct as a distinct matter” (7). Quoting Intimate Matters, it affirmed that “the modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions” (8).

I could not have been more pleased with this use of historical interpreta­tions and of my own work to support legal change. I also felt that the de­cision as a whole endorsed historical process over precedent. In the clos­ing paragraph of the decision, Justice Kennedy commented on those who had written and ratified the due process clause in the Fifth and Fourteenth Amendments: “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every genera­tion can invoke its principles in their own search for greater freedom” (18). It is this principle that can make historical interpretation so central to the process of legal change.

Reproductive Rights and Original Intent

The politics of abortion illustrate well the dilemmas faced by historians who engage in legal advocacy. Ever since the Supreme Court established a limited national right to abortion in Roe v. Wade (1973), a battle over reproductive policies has intensified in American politics. In the courts, lawyers have re­peatedly turned to historical research to establish either a right to abortion or grounds for its criminalization. In the landmark 1973 decision, Justice Harry Blackmun’s opinion in support of abortion rights drew on the avail­able “medical and medical-legal history” to determine “what that history reveals about man’s attitudes toward the abortion procedure.”6 Since that decision, the historical literature on abortion in America has expanded, as have legal challenges to Roe and the use of history in legal advocacy.

In an effort to limit the effects of Roe, conservative state and federal leg­islators imposed restrictions ranging from laws requiring parental consent for minors seeking abortions, to mandatory waiting periods, to limitations on state funding for the procedure. In the 1980s, for example, Missouri leg­islators banned non-life-saving abortions in public hospitals (regardless of the patient’s ability to pay). In response to this law and as part of a broader legal strategy to defend Roe, advocates of reproductive rights challenged the constitutionality of the Missouri statute, and they turned to historians at the appellate level to support their case in Webster v. Reproductive Health Services.

A key actor in bringing historical research to reproductive policy, Sylvia Law, had become aware of the Supreme Court’s use of history in civil rights cases. A feminist and professor of law at New York University, Law con­ceived of a historians’ amicus brief urging the Court to reject the Missouri ban in 1988. Realizing that the government’s case against abortion cited re­cent historical research by James Mohr, Law hoped to counter the misuse of his work. In early 1989, she convened a group of scholars with expertise on reproduction, sexuality, and social policy to help draft a brief. Once the Court agreed to hear Webster, a larger group of about a dozen scholars com­mented on successive versions of a document drafted by Law and attorneys Clyde Spillenger and Jane Larson.7 Within two months, they produced a thirty-page brief that carefully recounted the legal status of abortion in the American colonies, the social context for its criminalization in the late nine­teenth century, and the relatively recent appearance of anti-abortion argu­ments concerning fetal life. The brief circulated among historians, and by the time of the decision, over 400 scholars had signed it.8

In 1989, the Supreme Court ruled in Webster v. Reproductive Health Ser­vices, by a five to four vote, to uphold the Missouri law limiting access to abortion. They failed to overturn Roe, however, in part because Associate Justice Sandra Day O’Connor, who issued a separate concurring decision, did not join the decisions of the four other justices voting in the majority, which would have taken the case further to reconsider the issue of state protection of the fetus.9 Although the ruling upheld restrictions on abor­tion, Sylvia Law concluded that the historians’ brief had succeeded in “hav­ing precluded the Court from using history in a shallow and deterministic way.”10 It also set a precedent for collaborations between lawyers and histo­rians to influence the Court.

The apparent unity of purpose among the hundreds of historians who op­posed Webster did not necessarily imply a unity of historical interpretation. Reading the successive drafts of the brief, I often disagreed with particu­lar arguments.11 when I voiced my criticisms to Professor Law, she treated them with the greatest respect and incorporated most of them into revisions of the draft. While I felt satisfied enough to sign the brief and to urge others to do so, I remained intellectually frustrated by the need to simplify and the intense time deadline, which precluded careful historical debate. (The revision process seems even more impressive in retrospect since we were communicating through the mailing or faxing of hard copies rather than by e-mail.)

I had no qualms with the major argument in the historians’ brief that pro­hibitions on abortion had been enacted only since the late nineteenth cen­tury. My chief reservations concerned the opening section of the document, which tried to establish “original intent.” It is important to keep in mind the context for this approach, namely, the political and legal culture of the 1980s, when conservatives insisted on a strict originalism as a constitutional standard. Attorney General Edwin Meese, among others, was insisting that “the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.”12 Even though the Constitution never mentioned abortion, opponents of the procedure argued in defense of the Missouri statute — and with an eye to overturning Roe — that the original intent of those who wrote the Constitution was to outlaw it. In response, those advocating the right to abortion held that the Constitution had incor­porated a tolerance for abortion. In large part, they based their defense of abortion on the constitutional right to privacy and the Ninth Amendment’s assurance that individuals retained all rights not specifically enumerated in the Constitution. In addition, the lawyers working on the Webster brief sought historical evidence to show that an implicit right to abortion existed in America at the time the Constitution was written.

It seemed to me both possible and reasonable to show that abortion before “quickening” — when a woman first felt the fetus move — had not been illegal at the time of the writing of the Constitution and had remained legal during much of the nineteenth century. I had qualms, however, about maintaining that eighteenth-century legal thought incorporated an implicit right to abor­tion. More generally, I worried about seeking an eighteenth-century consti­tutional justification for twentieth-century social needs. For one thing, I felt that historical studies, building on modern constitutional theory, should illuminate the ways in which the law has responded to historical change, not simply the ways that historical precedents justify a particular legal interpre­tation. The original-intent argument, however, was a strategic response to the static argument of opponents of Roe that “unmitigated hostility” to abor­tion ran throughout our history. Although that statement was deeply flawed, I remained uncomfortable about refuting one static historical interpretation with another. Having to rely on less than definitive evidence — such as the silence about abortion in the Constitution and assumptions about its use in the eighteenth century— in order to make a case for either unmitigated tolerance or unmitigated hostility meant overlooking more nuanced inter­pretations of the changing meaning of family limitation over the course of U. S. history.

In Webster, the original-intent argument appeared most boldly in the first draft of the historians’ brief. The title of Argument II read, “For the original constitutional framers abortion was an unremarkable and legiti­mate part of the fabric of ordinary social life.” During the drafting of the amicus brief, I took issue with that statement, and the revised title read, “At

the time the federal constitution was adopted, abortion was known and not illegal.” Nonetheless, the text claimed that “abortion was not uncommon in colonial America.” As evidence, the brief called midwives’ prescriptions of abortifacients “routine.” It also stated that in the 1780s, “at the same time our founders drafted the Constitution, including the Ninth Amendment’s guarantee [of unenumerated rights] . . . the use of birth control and abortion increased” (8).

Despite evidence about the use of abortifacients in the colonial era, I would hesitate to argue that abortion was “not uncommon,” given the strong eco­nomic and religious motives for childbearing within families. In the colonial era, most families relied on neither contraception nor abortion because they hoped to procreate, whether for economic or religious reasons. Moreover, both sermons and court cases condemned not only nonprocreative sexual practices (such as masturbation, bestiality, and sodomy) but also efforts to destroy the fruits of sexual intercourse. The most widely used means to do so, according to court cases, was infanticide, probably more effective than the herbal abortifacients used at the time. Single rather than married women had the strongest reasons for resorting to infanticide. Despite individual efforts to avoid pregnancy, however, the high fertility rates of over eight children per married woman suggest that in seventeenth – and eighteenth – century America, women did not rely on abortion to limit family size. Yet the brief juxtaposed the falling birth rates in the 1780s with the statement that “at the same time our founders drafted the Constitution, including the Ninth Amendment’s guarantee that the enumeration of certain rights ‘shall not be construed to deny or disparage others retained by the people,’ the use of birth control and abortion increased” (7-8).

Behind that statement lies a more complex history. The demographic record reveals that even though pre – and extramarital sexual activity did increase in the late eighteenth century, the rise of both “early marriages” (bridal pregnancies) and illegitimate births suggests — by the very nature of the evidence — that sexually active unmarried couples did not use abor­tion. They married precisely because of pregnancy. At the end of the eigh­teenth century, marital fertility rates did begin their long-term decline, but it was too limited at the time of the constitutional convention to indicate any widespread use of abortion. In short, at the time of the framing of the Constitution, abortion was not subject to public debate in large part because economic and social conditions — particularly the centrality of reproductive family life — discouraged its use. Given this history, the founders may well have ignored, rather than accepted, abortion.

Over time, however, these conditions would change, making abortion more widespread and increasingly controversial. As the historians’ brief explained, in the nineteenth century, a growing commercial and industrial economy encouraged smaller family size, which necessitated greater efforts to limit births. Along with contraceptive use, reliance on abortions increased, especially, James Mohr has shown, among married women.13 By 1900, aver­age marital fertility rates fell to around four children (although the decline occurred later and more slowly among rural, immigrant, and African Ameri­can families). The brief synthesized historians’ arguments that the criminal­ization of abortion in the late nineteenth century represented, along with a consolidation of medical authority, a response to a constellation of fears about white middle-class women’s rejection of motherhood. By the next cen­tury, fears about racially imbalanced birth rates contributed to the charge of “race suicide” leveled at elite white women.

During the century of criminalization, contraception and abortion did not disappear; they largely went underground, often at great personal risk to women and to some providers. Both practices would resurface in public view because of historical changes in the nature of work and family. Over the twentieth century, family limitation became more widespread, abetted by the birth control movement and necessitated by married women of all races entering the wage labor force. Women’s reproductive and economic choices went hand in hand. By the 1960s, the growth of dual wage-earning families who desired to limit and space births paralleled a shift in medical and legal support for decriminalizing abortion. Women’s changing roles as workers and mothers thus help explain the road to Roe; they also framed the initial opposition. Early anti-abortion activists mobilized women whose identities remained rooted in motherhood. Long before they employed claims about the personhood of the fetus, critics of abortion echoed nineteenth-century rhetoric about the value of maternity to American cultural stability/4

Given this historical framework, I wanted the Webster brief to argue more centrally that women needed reproductive choice in the late twentieth cen­tury not because of similarities with women in the eighteenth century but precisely because our lives differ from those of our forerunners, despite our shared reproductive vulnerability. The brief did in fact document the chang­ing context of abortion law, and I agreed with those sections of it. I nonethe­less questioned the overall strategy of relying so heavily on historic rights because this approach did not represent the full range of historical or politi­cal arguments. Aside from my qualms about the representation of late-eigh – teenth-century practices, it seemed evasive to claim abortion as an implicit original right without acknowledging, as Linda Gordon’s scholarship has shown, that late-nineteenth-century women’s rights advocates condemned the practice. For them, abortion symbolized an undue burden on women, who alone paid the price of unwanted pregnancies. Although the brief cited Gordon’s analysis of “voluntary motherhood,” it ignored the feminist op­position to abortion. Recently, however, this history has been used by some opponents of abortion as a precedent for their cause. In invoking this his­tory, they adopt a static interpretation of feminism, ignoring the economic and political disparities that led earlier activists to insist on the fusion of reproduction and sexuality.15

A related political weakness in seeking original, implicit rights to abor­tion is highlighted by contemporary feminist critiques of reliance on a lan­guage of rights that reinforces individual, as opposed to social, responsibility for reproduction in order to defend reproductive choice. By accepting this “right,” we overlook the reasons why women need access to abortion, in­cluding inadequate contraceptive methods and research, unequal economic opportunities, and the lack of social services for mothers and children. All of these gender-based inequalities make childbearing and economic self-suf­ficiency incompatible for women. By arguing for abortion on the grounds of the right to privacy, I felt, the historians’ amicus brief in Webster necessarily oversimplified a range of theoretical (and practical) justifications for abor­tion and neglected a range of related political issues. It had to adopt a liberal feminist politics, emphasizing rights without reconsidering the historical changes, such as wage earning, that have made reproductive choices even more problematic than in the past for many womend6

Working on this brief complicated my notion of a usable past. Citing his­torical research to justify a legal interpretation can imply that past practice is more salient than current needs. This privileging of the past can be and often has been used for conservative ends, and the reverse — that change is more salient than historical precedent — may also be the case. Some ele­ments of abortion history do provide telling precedents for current politics, though often as negative rather than positive models. For example, the his­tory of abortion law illustrates how sex and reproduction have been ma­nipulated politically, as both Mohr and Gordon have shown — whether to advance the authority of medical professionals or to justify state-sponsored eugenic projects that targeted African Americans, Native Americans, and Mexican Americans as well as the disabled. Learning from this history of sexual politics cautions us to be more careful as we reformulate reproductive rights. We should seek to make our policies undermine rather than reinforce

hierarchies of class, race, and gender. Along with such critical explorations of past practice, I felt strongly after the Webster brief, we need to foreground the changing social contexts in which we adjudicate the regulation of sexual­ity and reproduction.

I When Historical Interpretation Meets Legal Advocacy Abortion, Sodomy, and Same-Sex Marriage

On several occasions, I have been asked to speak at historical meetings about contem­porary legal cases related to my scholarship on sexuality. At the American Historical Association meeting in 1989, I participated on a panel on reproductive rights entitled “Women’s History in the Policy Arena”; in 2004, while the Massachusetts state legis­lature was deliberating gay marriage, I was asked by the Organization of American Historians to provide historical context for same-sex unions at a public session on “The Peculiar Institution of Marriage.”1 At both panels, I questioned the search for historical precedents to justify contemporary policies. In this essay, I have revised my earlier talks, along with comments on a landmark sodomy case, to rethink the role of historical interpretation in legal advocacy.

when historians craft interpretations of the past, our usual audience consists of other scholars, students, and a few interested lay readers. In the past few decades, historical expertise has attracted an expanding legal audi­ence as well. To guide their decisions, American judges frequently invoke the phrase “history and traditions,” implying that the past is critical to constitu­tional interpretation. To influence judicial opinions, lawyers have turned to our profession to help strengthen the historical foundations for their argu­ments. At least since the 1954 school desegregation case Brown v. Board of Education, lawyers have incorporated historians’ research, and judges have increasingly used the past to elucidate constitutional meanings. As a result, historians have weighed in on a range of cases concerning contested public policies, including Native American land claims, sex discrimination in the workplace, and welfare reform.2 In this essay, I reflect upon my own experi­ence of collaborating with other scholars and lawyers in legal cases concern­ing reproductive and sexual rights.

Historians’ contributions to legal advocacy take several forms. When schol­ars provide paid expert testimony at trials, they instruct the judge or jury on historical points relevant to the case and are subject to cross-examination by

the opposing legal team. In the 1980s, for example, women’s historians testi­fied in the sex discrimination suit brought by the Equal Economic Opportu­nity Commission against the retailer Sears Roebuck. As that case illustrated, historical experts can serve on both sides.3 Some historians submit affidavits, declarations, or an “offer of proof” that summarizes research relevant to a case without necessarily testifying in person. Another form of historical in­terpretation applied to the legal process is the friend of the court, or amicus curiae, brief filed at the appellate level. Professional and advocacy groups, such as the American Bar Association, the National Association for the Advance­ment of Colored People, and the American Civil Liberties Union, have sub­mitted these briefs since the early twentieth century. Multiple amicus briefs have become common in Supreme Court cases in the past decades, including those written by academics in association with lawyers.4 In contrast to the interrogatory format of expert testimony given by an individual witness, his­torians’ amicus curiae briefs resemble scholarly papers, but they also depart from typical patterns of historical writing. Produced collaboratively in a short period of time, the briefs apply historical research to support particular legal claims, necessarily leaving out much of the context and complexity so valued in our craft.

As a participant in drafting several amicus briefs related to the history of sexuality, I have noticed a recurrent tension between turning to the past as precedent and interpreting the dynamics of social change. This tension reflects a broader debate among legal scholars over the merits of stressing “originalism” — the intent of the framers of the Constitution — as opposed to reinterpreting the law over time.5 Recent legal cases concerning the right to abortion, the decriminalization of sodomy, and the legality of gay marriage illustrate these distinctions. These subjects raise questions about whether certain reproductive or sexual acts, such as abortion or homosexuality, were tolerated at the time the Constitution was written; when and why each act was criminalized; and what the implications of this history offer us as we shape current social policies. At the outset, I want to be clear that I per­sonally support both reproductive and gay rights; the effectiveness of argu­ments for those rights, however, depends on maintaining a delicate balance between the use of historical precedents and the recognition of historical change.

I initially attributed the tension I noticed between arguments based pri­marily on precedent and those emphasizing change over time to an inherent conflict between the goals of legal advocacy and the practice of historical in­terpretation. I feared that historical complexity would be lost in the process of fitting evidence to legal arguments. After further collaborations on am­icus briefs, I came to recognize that both lawyers and historians struggle to balance past precedents and changing historical contexts. I now believe that historians can engage in legal advocacy without oversimplifying the past, but we need to be careful about the ways we apply our interpretive tools. As I hope this essay will illustrate, our profession has a great deal to offer in elucidating the different meanings of “history and traditions,” a phrase that too often treats these distinct terms as if they were identical. When historical interpretation meets legal advocacy, static interpretations of “tradition” can be enriched by exploring historical silences, contingencies, and exceptions to apply the dynamics of social change to legal arguments.

Rumors

Why, then, the burning of letters? Even if Van Waters did not consider her­self a lesbian, the world around her was not as thoroughly convinced. Al­though her close associates insisted to me that the relationship was much too spiritual to have been homosexual, Van Waters’s partnership with Thomp­son made her increasingly vulnerable to the insinuations of her political opponents.

In the conformist atmosphere after World War II, accusations of com­munism, often conflated with homosexuality, fueled an attack on liberalism. Thus, in 1948, claims that Van Waters tolerated homosexuality at the Mas­sachusetts women’s reformatory facilitated her dismissal from office. Aside from the widely publicized claims about the “doll racket” among inmates, rumors about Van Waters’s sexuality circulated underground, though never in print. For example, Eleanor Roosevelt— a friend of Thompson’s and sup­porter of Van Waters — learned of the whispering campaign when she re­ceived several “vile” letters that were so disturbing that she destroyed most of them. Similarly, a hostile postcard sent to supporters referred to Van Wa­ters as “supt. (or Chief Pervert)” of the reformatory.32 It was at this time that Van Waters burned most of Thompson’s correspondence, carefully locking away only that one year of “courtship” letters.

Despite the private insinuations that led her to burn Thompson’s letters, Van Waters survived the attempt to fire her. The publicity surrounding prison lesbianism during her hearings, however, contributed to a national preoccupation with homosexuality and to the naming of lesbianism as a social threat. No matter how confident Van Waters may have been that she was not a lesbian, outside observers often assumed that she was. Late in my research, after years of waiting to receive Van Waters’s fbi file, I found a 1954 document that seemed to place an official government seal upon Van Wa­ters’s identity. While carrying out surveillance on Helen Bryan, a suspected communist sympathizer with whom Van Waters had a romantic friendship later in life, a local FBI informant read the correspondence between the two women. Shocked by the “unusual” nature of the letters, which contained “numerous repeated terms of endearment and other statements,” he came to “the definite opinion that Dr. van waters and bryan are Lesbians.’^ It

was to prevent just such a conclusion from being drawn that Van Waters had earlier burned Thompson’s letters.

That identity formation is often a social as much as an individual phe­nomenon is further revealed by a final anecdote from my research on Van Waters, a coda of sorts that brings the story into the 1990s. My book com­pleted, I turned to the task of acquiring permission to quote from sources, including Geraldine Thompson’s courtship letters. With trepidation, I sent a permission form to Thompson’s eldest surviving granddaughter, who soon called to discuss the request. Her initial words, “I will not grant permis­sion,” struck further terror in me, until I absorbed the rest of her sentence: “I will not grant permission to repeat any lies; I want the truth.” Too much had been concealed in her family, she explained, too much smoothed over. By the end of our conversation, she had told me with confidence that her grandmother had been a lesbian and that she was sure that Thompson and Van Waters were lovers because they had shared a bed during family vaca­tions. “Do you know what we grandchildren called Miriam when she came to visit’?” she asked. “Grammy Thompson’s yum-yum.” She gladly granted permission to quote when I seemed willing to reveal “the truth.”34

I would like to close this retrospective account of my construction of Miriam Van Waters’s sexuality with several reflections on the burning of letters. My research affirms the insights of such historians as Blanche Cook and Leila Rupp who claim that we cannot depend on either labels or direct evidence of sexual behavior to locate the subjects of lesbian history. At the same time, however, we need to be historically specific about the meaning of sexual identity. For many middle-class women of Van Waters’s generation, lesbianism connoted a psychopathology that did not resonate with their ex­perience of loving women. Rejecting the label did not mean rejecting the practice, but it did mean distancing themselves from other women — no­tably the working-class and African American women who were forging an explicitly erotic lesbian community in the postwar era. Class and race privilege thus took precedence over sexuality as a source of identity, espe­cially for women in public office. Ultimately, however, even Van Waters’s resistance to labeling could not prevent the public discourse on homosexu­ality from imposing an identity on her that seemed to be at odds with her self-understanding.

Social-construction theory emphasizes how either medical, legal, and literary discourses or economic and familial relationships create the pos-

Подпись:burning of letters continues

sibilities within which individuals can act out and interpret their sexuality. One weakness of social-construction theory, however, is that as a collective argument it tends to flatten individual differences and does not account well for individual agency. Writing a biography of Miriam Van Waters allowed me to explore an individual case study of identity formed both in tandem and in conflict with the social construction of sexuality.

Van Waters came of age at a transitional moment when the social possi­bilities for romantic and sexual love between women increased but also when medical labeling pathologized these relationships. As an educated, profes­sional woman exposed to such sexologists as Ellis and Freud, she was both conscious of the erotic and aware of the psychopathic label then attached to same-sex relationships. At the same time, Van Waters was attracted to women; she was able to live outside heterosexual institutions; and she could and did take advantage of the opportunity to establish a partnership with another woman, even as she fiercely resisted lesbian identification.

Perhaps the fear of losing her job and her social standing kept Van Waters from identifying as a lesbian. But her rejection of lesbianism as an identity was not merely self-serving because she just as fiercely resisted the labeling of working-class prison inmates as lesbians, and during her dismissal hearings in 1949, she more or less placed her class and race privilege on the line to defend these women from such charges. In the end, it was Van Waters’s privileges — combined with her distinguished career of service and her upper-class political connections — that protected her from public disgrace. The work­ing-class women she tried to protect would forge their own public lesbian identity, one that equally rejected the pathological discourse of the early twentieth century.

I suspect that Miriam Van Waters would have liked to live in a world that no longer existed, one in which neither labels nor stigma surrounded women’s passionate relationships. To contemporary feminists who value our own historically constructed ideal of the openly lesbian sexual subject, Van Waters seems anything but progressive. Yet if we are serious about the femi­nist scholarly enterprise of recognizing women’s historical agency, we have to be willing to accept beliefs, and possibly behaviors, that go against the grain of a “progressive” narrative that embraces categories we have claimed for ourselves. And we must keep in mind that this narrative rests heavily upon a highly class – and race-specific lesbian identity constructed since the 1960s, one that depathologized white middle-class women’s love for women but simultaneously failed to recognize a range of other sources of identity.

For complex reasons, then, I think that historians must be careful not to impose upon the past identities constructed in our own times. Rather, we must read for past constructions and consider where they originated, how they changed, and how multiple layers of meaning — intellectual, emotional, and political — could influence individual identity. Miriam Van Waters’s case suggests the ways that some women could simultaneously internalize, resist, manipulate, and ignore the cultural constructions of sexuality in their times. Above all, her story reminds us to look beyond our sources, to read both silences and speech, and, at times, to accept the historical integrity of elusive personal identities.

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Evidence of Subjectivity

When Superintendent Van Waters evaded the labeling of homosexuality during her dismissal hearings, she also sidestepped implicit questions about her own sexual identity. Just as she had refused to label her long-term ro­mantic partnership with New Jersey philanthropist Geraldine Thompson, Van Waters avoided applying the term “lesbian” to other women. She re­served the homosexual label to refer to women’s pathological, though cur­able, sexual aggression toward other women.22

What of her internal consciousness of her own sexuality? The private story of Miriam Van Waters’s own relationships with women both parallels and contradicts her public pronouncements. Beginning in adolescence, she fell deeply in love with other women and, for the most part, preferred their company to the attentions of male suitors. Never a sexual prude, Van Waters recognized the importance of the erotic, especially in the poetry and fiction she wrote in her late twenties. But she also placed great stock in the power of sublimation for harnessing erotic energy into expression as art, spirituality, or public service. Thus, upon reading Radclyffe Hall’s The Well of Loneliness in 1929, Van Waters commented in her journal that had Stephen Gordon’s parents been more loving, instead of becoming a lesbian, Gordon might have “run a girls camp,” become a high school counselor, or supervised a juve­nile protective agency, all activities remarkably similar to those Van Waters chose.23

The detailed introspective journals Van Waters kept as an adult provide further clues about her subjective experience of sexuality, despite the fre­quently coded and intentionally obscure nature of her writing.24 Tantaliz­ing passages in Van Waters’s journals made little sense to me until late into my research, when I gained access to a cache of personal papers that had not been deposited in the archives. Literally locked away in a rusting trunk and forgotten in an attic, that cache included passionate letters from two of Van Waters’s ardent admirers: one set was from Hans Weiss, a young Swiss social worker who wished to marry Van Waters; the other, a year’s worth of daily letters from Geraldine Thompson, the older, wealthy, married phi­lanthropist whose subsequent correspondence Van Waters burned in 1948. Working with both the journals and the “courtship letters,” as I called them, I learned how Van Waters struggled to balance the erotic, the emotional, and the spiritual in each of these relationships.

Despite significant differences between the Weiss and Thompson corre­

spondence — his letters were more erotic, hers more spiritual; he was more emotionally demanding, she longed to be of service to her beloved — I was struck by the consistency in Van Waters’s response to her male and female suitors. In each case, she remained publicly silent, restrained in her re­sponses to passion, and conflicted about making any lifelong commitment. The two relationships did present separate challenges to Van Waters’s sexu­ality. The younger, less established Weiss frequently articulated his erotic longings; in response, Van Waters struggled to incorporate physical passion while subsuming it to her ideal of a spiritualized romantic friendship. The older, wealthier, and more powerful Thompson longed for “the Justice of the Peace and church bells” to signify their commitment; in response, Van Waters feared the dependency that could result from their union.25

In both cases, the management of passion was a recurrent theme for Miriam Van Waters. Although her journals were characteristically obscure about sexual experiences, one passage written after a visit with Weiss al­luded to an unidentified young “Beloved” with whom she had experienced both a spiritual epiphany and a “yielding to love.” In one entry, she recalled a candlelit scene in which her “hands were flung up by a strong clasp of young hands on my wrists — and with another soul — I plunged down a glittering waterfall immeasurably high, and sunk at last — into a pool — where two floated in weariness and content.’^6 More typical, however, was her insis­tence on limiting their intimacy. “As a lover I yield to no one in sustained worship,” she wrote in her journal. To Weiss, she explained that their spir­itual union transcended the need for physical proximity, suggesting that unrequited love could yield the “deepest spiritual gain.”27 By 1930, she had successfully encouraged Weiss to wed someone else and had informed him of another unnamed attraction.

The Thompson courtship, begun during the late 1920s, overlapped with the waning of Van Waters’s intimacy with Weiss. Both women valued ro­mantic and spiritual intimacy, and neither wrote explicitly about their sexual experiences. Yet Van Waters left hints about her consciousness of lesbianism and her continuing management of erotic impulses. In 1930, she read an ar­ticle about Katharine B. Davis’s 1929 study of female sexuality, which found that a quarter of unmarried women college graduates acknowledged a sexual component in their intense emotional relationships with other women. Van Waters placed a star next to the statement that these were normal, not patho­logical, women, as if to differentiate her experience from the perversions she had earlier identified among juvenile delinquents^8 As in her relationship with Weiss, however, Van Waters continued to place limits on erotic expres­sion. Thus, when Thompson expressed a desire “to ‘catch your soul’s breath’ in kisses,” Van Waters questioned the impulse in her journal: “What one calls appetite — satisfaction of warmth needs — hunger needs — is not just that. . . . In maturity some times in some circumstances — to feed hunger fully— is to lose hunger. There are other ways of quenching the fire — and all must be escaped.” Professionally, she had recommended channeling youth­ful sexual energies, whether heterosexual or homosexual. But her personal ideal suggested that desire should not only be sublimated but also could be maintained best by leaving it largely unfulfilled. While staying at Thomp­son’s home, she again alluded to the value of control: “The secret of life is manifested in hunger — it can’t safely be quenched — neither by denial, nor complete feeding, nor running away, nor escape — but by a new way.”29

Whether or not she discovered this “new way” of managing desire, by the time she and Thompson pledged their love at the end of 1930, Van Wa­ters recognized that she had crossed some line. “The object which arouses love — cannot be foreseen or controlled,” she wrote in her journal. “All we know is — that same force which engulfs us, and makes us ready for service to husband and children — some times — to some persons — flows out to a man, woman, child, animal, ‘cause,’ idea.” Van Waters did not, however, acknowledge her love publicly nor claim a lesbian identity. When Geraldine longed to “shout about” their love so that her family would “know what life through you is giving me,” Miriam counseled discretion.30 Similarly, when an acquaintance who lived openly with another woman later asked Van Wa­ters in public about the ring she wore — a gift from Thompson — Van Waters seethed at the impudence of this inquiry into her private life. Perhaps her status as a civil service employee and as the guardian and later adoptive mother of a child made Van Waters more cautious than her independently wealthy partner, Thompson. Equally likely, Van Waters struggled to recon­cile her passion with the psychological construction of lesbianism she had already formed.

Another cryptic journal entry suggests how powerfully that psychological construction influenced her. In a dream, she wrote, she had enjoyed a feeling of “Understanding” that derived in part from “the recent Rorshak [sic] and integration.” Van Waters used the Rorschach test to detect “innate homo­sexuality” among inmates; in 1938, a trusted friend administered the test to her, and the results made Van Waters feel confident and optimistic. One line in this passage was crossed out heavily in pencil, especially over someone’s name, but the entry continued, “Geraldine and I shall learn together.’^1 In my reading, the Rorschach test proved to Van Waters that she was not an in­nate homosexual, thus freeing her of the deviant label and, ironically, grant­ing her permission to integrate her love for Thompson without adopting a lesbian identity.

Discourses

In the early twentieth century, highly educated women such as Miriam Van Waters might have been exposed to published literature that clearly named both male and female homosexuality. Only a generation earlier, even roman­tic female friends and women who passed as men perceived their experiences within frameworks largely devoid of sexual references. The “female world of love and ritual” mapped by historian Carroll Smith-Rosenberg allowed same-sex attractions to “pass” as sexually innocent, whether they were or not. Beginning in the late nineteenth century, a modern conception of ho­mosexuality emerged, articulated first as a form of gender inversion and later as an expression of erotic desire.13 Gradually, an explicitly sexual language characterized the literature on same-sex relationships. Helen Horowitz’s in­sightful interpretation of M. Carey Thomas provides a good example of the transition. In the 1870s, Thomas’s reading of romantic and pre-Raphaelite poets afforded her an initial and asexual framework for understanding pas­sion between women; after the 1890s, however, the Oscar Wilde trial and the availability of works by sexologists such as Richard von Krafft-Ebing al­lowed Thomas to name sexual acts between women. Similarly, Lisa Duggan’s analysis of the Alice Mitchell trial suggests that during the 1890s the popular press helped create a complex—and contested — erotic lesbian subject, as­sociated in part with insanity and crimed4

As a graduate student at Clark University between 1910 and 1913, Van Wa­ters easily discovered the scholarly literature on sexuality. She read Havelock Ellis, Krafft-Ebing, and some Sigmund Freud, as well as the work of her ad­viser, psychologist G. Stanley Hall. Her own writing recognized the power of sexuality and stressed the importance of sex education and the strategy of channeling youthful energies into recreation and social service. She also became curious about gender identity and same-sex relationships, as a ques­tionnaire she designed reveals. The survey of adolescent girls asked, for ex­ample, “Did you wish to be a boy?” and “[Was your first] love for some one you knew closely, or for some distant person. . . or for some older woman or girl friend?” A separate questionnaire for teachers asked if “crushes” be­tween girls were “based on mutuality of interest and inclination; or are they more likely to exist between ‘masculine,’ and excessively ‘feminine’ types?”15 The questions suggest Van Waters’s interest in whether same-sex attractions correlated with gender identity, an inquiry prompted in part by Ellis’s notion of sexual inversion, which associated “mannish” women with lesbianism.

Although Van Waters never conducted this survey, her intellectual cu­riosity about gender nonconformity and its relationship to homosexuality recurred in her doctoral dissertation, “The Adolescent Girl among Primitive People.” At this time, she consciously rejected Freudian interpretations of sexuality and adopted Ellis’s language of inversion — albeit without the path­ological notions of deviant sexuality. Her views also reflected the cultural relativism of Franz Boas. After describing institutionalized gender-crossing among North American Indians, for example, Van Waters concluded that “among primitive peoples, a useful and appropriate life-role is commonly furnished the inverted individual. . . . It is quite possible that modern policy could profitably go to school to the primitive in this regard.”i6 Similarly, in an appendix on contemporary American approaches to adolescent de­linquents, Van Waters analyzed the case of a cross-dressing young woman accused of being a “white slaver” because she brought girls to her rooms at night. Reluctant to label the girl a “true homosexual,” she reported that “it is impossible for her to earn an honest and adequate living while dressed as a woman” and claimed that sympathy for women of the underworld rather than sexual proclivities accounted for her behavior/7

During her subsequent career working in juvenile and adult female refor­matories, Van Waters retained a liberal tolerance for homosexuality, even as she increasingly incorporated Freudian views of sexual psychopathology. When she discussed the management of “ ‘crushes’ and sentimental attach­ment” among reformatory inmates in her 1925 book, Youth in Conflict, she advised that a trained social worker should draw out the girl and replace un­healthy attachments with healthy ones through a beneficial “transference.” A harsher passage reflected conservative medical views of sex and gender when she labeled as the most perverse juvenile case she had encountered a narcissistic girl whose “emotional life will be self-centered or flow toward those of her own sex” and who would “never wish to live the biologically normal life.”i8

Despite these published critiques of unhealthy homosexual attachments, as superintendent of the Massachusetts Reformatory for Women in Fram­ingham from 1932 to 1957, Miriam Van Waters consistently resisted the label­ing of prison relationships as homosexual. Her liberal administration em­phasized education, social welfare services, psychiatric counseling, and work opportunities outside prison for the 300 to 400 women inmates, the large majority of whom were young, white, Catholic, and working class. Although the criminological literature at the time identified black women in prison as the aggressors in interracial sexual relationships, Van Waters and her staff did not draw a racial line around prison homosexuality. Even when staff discovered two women in bed together — of any racial combination — they hesitated to label them as homosexual.

Van Waters’s tolerance of prison homosexual liaisons contributed to the conservative assault on her administration in the 1940s. The commissioner of corrections who dismissed her from office charged that she had failed to recognize or prevent the “unwholesome relationship” he called the “doll racket.”19 Van Waters evaded the charge, invoking psychiatric authority to draw a distinction between a homosexual act and a possibly repressed ho­mosexual tendency.20 Thus, she protected the mannish women and female friends in prison without directly questioning the view of homosexuality as pathology.

In the 1950s, partly in response to her reading of the Kinsey reports and partly in the wake of accusations about prison lesbianism during her dis­missal hearings, Van Waters’s public lectures urged greater tolerance. Ho­mosexuality, she explained, could be “found in all levels of society,” in all types of people. Her emphasis, however, was on treatment. Once revealed through use of the Rorschach test, she believed, homosexual tendencies could be reversed with the aid of psychiatry.21

In short, for Miriam Van Waters, lesbianism was a curable social prob­lem not unlike alcoholism. Although she initially encountered lesbianism among working-class, immigrant, and black reformatory inmates, she rec­ognized that it occurred within other groups as well. Rather than empha­sizing a heterosexual solution, Van Waters placed great faith in “healthy” female bonding as an alternative to lesbianism. In this sense, whether or not she had internalized modern medical categories, she strategically invoked an earlier discourse of sexually innocent and nurturing female friendships as a corrective to the increasing stigmatization of women’s love for women as a form of perversion.

I The Burning of Letters Continues Elusive Identities and the Historical Construction of Sexuality

The story behind Miriam Van Waters’s burning of her personal correspondence illus­trates the problem of interpreting sexual identities historically. Like the working-class lesbians in prison, the administrators and staff of women’s reformatories were vulner­able to charges of sexual deviance. Long before I became her biographer, I had heard rumors about Van Waters’s personal life, so the question “Was she a lesbian?” lurked in the background as I wrote. Each discovery of new sources contributed to my analy­sis. When I finished the book, I wrote this essay to retrace my interpretive process. I wanted to show not only what the evidence revealed about Van Waters but also how I came to reframe the question of lesbian identity by breaking it into historically useful components. This essay, more than my earlier work, acknowledges the inseparable layers of subjective, discursive, and social meanings that constitute sexuality.

on a clear June morning in 1948, the controversial prison reformer Mir­iam Van Waters made a painful and momentous decision. For months, she had been embroiled in a political struggle with conservative state officials who wished to dismiss her as the liberal superintendent of the Massachu­setts Reformatory for Women. Local newspapers headlined the claims that Van Waters coddled prisoners, hired ex-inmates, and condoned homosexual behavior in prison. Investigators from the Department of Corrections inter­rogated her staff and seized inmate files as evidence.

As she sat before a glowing fireplace in her home that June morning, Van Waters fueled the blaze with some of her most precious possessions. “The Burning of Letters continues,” she wrote in her journal that day. “One can have no personal ‘life’ in this battle, so I have destroyed many letters of over

Previously published as Estelle B. Freedman, “‘The Burning of Letters Continues’: Elu­sive Identities and the Historical Construction of Sexuality,” Journal of Women’s History 9, no. 4 (Winter 1998): 181-200. © Journal of Women’s History. Reprinted by permission of The Johns Hopkins University Press.

22 years.” Van Waters had met her patron and romantic partner, Geraldine Thompson, twenty-two years earlier. Since the late 1920s, they had corre­sponded almost daily, sharing their thoughts, their activities, and their love during the weeks between their regular visits with each other. All but a few of the daily letters Thompson had addressed to her “Old Sweet,” her “Dear­est Dearest Love,” went up in flames that day. As she burned the letters, Van Waters recorded her sense of loss: “They might have been inspiration, history, joy, style — to me in ‘old age.’” Instead, she resolved to keep their message within herself: “The letters are bone and sinew now in my carnage. Doubtless my character has been formed by them.”1

As Van Waters’s biographer, I felt deeply mixed emotions when I read this passage in her journal.2 On the one hand, my empathic pain for her loss quickly turned to anger at the politicians and the society whose condemna­tion of love between women forced her to destroy this personally meaning­ful correspondence — and, in the process, prevented me from reading this significant historical evidence. On the other hand, uncovering the revela­tion that she had destroyed the bulk of her correspondence from Thompson provided in itself an important clue in my quest to understand Van Waters’s elusive sexual identity. “The Burning of Letters” passage offered a smoking gun of sorts to explain the absence of evidence documenting the intimacy of the Van Waters-Thompson relationship. Furthermore, that threats of political scandal had prompted the burning helped confirm my interpreta­tion of Van Waters’s ordeal as a precursor of the sexual surveillance of the McCarthy era.

Van Waters’s decision to destroy the record of her intimate relationship with another woman was not unique among professional women of her gen­eration. Born in the late nineteenth century, just as the modern concept of homosexuality emerged within European and American medical literature, educated women like Van Waters bridged two eras in the social construc­tion of sexual identity. Although they came of age in a world that still valued female intimacy, over the course of their lifetimes, romantic friendships lost the sexual innocence they had once enjoyed.3 That so many women in public life destroyed their correspondence with close female friends or partners in­dicates their awareness of the process of stigmatization that took place in the early twentieth century. As a result, self-censorship — apart from familial or historical suppression of evidence — has created historical silences that speak worlds about the relationships between such women as Miriam Van Waters and Geraldine Thompson, Alice Paul and Elsie Hill, Molly Dewson and Polly Porter, M. Carey Thomas and Mamie Gwinn, and Frieda Miller

and Pauline Newman, to name a few who burned all or part of their per­sonal papers.4

Van Waters’s conscious effort to conceal her relationship with Thompson represents only one of the many challenges I faced as a feminist biographer committed to interpreting private as well as public life. Two related problems complicated this task: evasion and contradiction within existing historical sources and the weaknesses of my own preconceived historical categories.

These problems surfaced even before I became Van Waters’s biographer. Years ago, a historian who knew of my interest in women’s prisons suggested that I write about Miriam Van Waters. When I seemed uninterested, he added the tantalizing comment, “She was a lesbian, you know.” Although I did not undertake a biography at the time, I did become intrigued a few years later when I looked up the heading “lesbian” in the Schlesinger Library card catalog and found a lone reference to files in the Van Waters Papers. Catalog drawer in hand, I walked into the archivists’ office, mentioned that someone had once told me that Miriam Van Waters was a lesbian, and asked, rather naively, “Was she?” An archivist responded — I paraphrase slightly—“We don’t say that about anyone without proof.” The implication, in tone and words, was that I was making an unpleasant accusation.

In retrospect, I realize that my penchant for naming and the library’s reluctance to do so were equally problematic. Each of us acted upon certain assumptions about lesbian identity. My modern “lesbian feminist” impulse sought to reject what Blanche Cook has called “the historical denial of lesbi­anism” in favor of restoring the lesbian element to women’s history, without questioning the historical meaning of the term “lesbian.” Or perhaps I was unconsciously adopting Adrienne Rich’s concept of a lesbian continuum, which generously labeled a range of woman-centered behaviors as lesbian.5 The archivist, it seemed to me, adopted a modern homophobic response, seeking to protect historical subjects from accusations of identities that might have offended them (or, I suspected, her). The library’s policy, I later learned, was that only self-identified lesbians would be categorized as such.

Eventually, my simplistic question “Was she a lesbian?” would evolve into a more complex inquiry into Van Waters’s sexual subjectivity. By the time I made the commitment to write a biography of Van Waters, I recognized the need to historicize my own inherited categories, particularly those — such as homosexuality—that derive from modern, Western notions of the self, identity, and politics. The very category of sexual identity often rests upon concepts of a unified self and describes the consciousness of a bourgeois (male) historical actor, for whom the taken-for-granted privileges of gender,

class, and frequently race permit the foregrounding of sexual subjectivity. For many women, class, race, or ethnicity may be more salient than sexu­ality in the formation of modern identities. Moreover, as scholars such as Earl Lewis and Dana Takagi argue, for many women and people of color, multiplicities of identities are perpetually uncertain and in flux. Whether in the case of visible ethnicity or invisible sexuality, identity categories mask the complexity of incoherent identities. Recognizing this fact, however, does not preclude the need to understand the historical construction of identities, which in practice wields significant power on the levels of both individual and social relationships. Studies of sexuality thus face a dilemma similar to those that address ethnicity: should scholars and activists discard or claim social categories that we admit to be unstable?6

I believe that exploring the concept of sexual identity remains a critical task for historians, despite the difficulty of pinning down our subject. Let me briefly survey the historiographical landscape to contextualize my ap­proach. While the historical denial of homosexuality has recently given way to extensive scholarly inquiry, competing theories continue to character­ize the literature. At one extreme lie essentialist notions of a transcendent “gay” identity that disregard historical and cultural specificity. These theo­ries range from the biological/hormonal/genetic to the historical argument that “gay” people have always existed, from the Greeks to the moderns, as a unique category. At the other extreme lies a postmodernist tendency to frag­ment identity into a category so fluid and unstable that it threatens to return, curiously enough, to the denial with which we began. In short, we cannot study lesbians in the past because the term is too modern and limiting, too falsely universalizing, and too much a figment of discursive imagination.7

A middle ground, where I am most comfortable, draws on the model of social construction first articulated by the British sociologist Mary McIn­tosh. This account of the historical transition from homosexual acts to ho­mosexual identities emphasizes the impact of economic and social relations within Western industrial societies. John D’Emilio and I applied elements of this model to our survey of American sexual history, arguing implicitly against theories of the discursive creation of homosexual identity by modern medical and psychiatric authorities. Rather, we suggested, within an emerg­ing capitalist society, the separation of reproduction and heterosexuality, along with the growth of wage labor, provided economic and social spaces for the emergence of self-conscious same-sex relationships, which were then

labeled homosexual. The possibilities for these relationships, outside tradi­tional family controls, in turn made possible, and likely, the formation of gay identity and eventually modern gay politics.8

As feminist scholarship reminds us, however, the timing and meaning of this transition differed by gender. Trying to fit women into the (traditional)- acts-to-(capitalist)-identity model raises problems, given women’s continu­ing reproductive responsibilities and their economic dependence within both middle – and working-class families in the nineteenth century, when this transition was occurring. Nonetheless, distinct female constructions of same-sex relationships did emerge in response to new economic roles. These included but were not limited to women who passed as men and married other women, usually associated with the working class; romantic friend­ships, usually associated with middle-class women; and mutual households, known as “Boston marriages,” largely associated with educated women but adopted by working women as well.9

Only in the twentieth century, however, as the U. S. consumer culture in­creasingly sexualized women of all classes, did an explicitly lesbian identity emerge, first within black and white working-class cultures and later among middle-class feminists. As I have suggested elsewhere, racial and class con­structions of female sexuality deeply influenced this process. Given the sexual objectification of African American and working-class women and the denial of sexual agency to middle-class white women, the lesbian label was often applied to black and working-class women who were already as­sociated with criminality and prostitution.10 Despite their practices of same – sex love, white middle-class women rarely claimed lesbianism as an identity before the 1940s, with the notable exception of some artists, writers, and bohemians.11

This social-constructionist account of the emergence of lesbian identity remains, I feel, too abstract. Its very insistence on the social, as opposed to individual, meaning of sexuality risks overlooking the fact that identity for­mation is in fact as much an individual as a social phenomenon. Indeed, the two are often in conflict, especially in periods of transition, when individu­als raised with the sexual categories of an earlier culture partake in the social changes that redefine their behaviors. Historians too rarely acknowledge either the complications of contradictory and competing identities in their subjects or the dilemmas we face in handling elusive identities/2

In the interest of becoming more explicit about how historians grapple with the elusive subject of sexual identity, I want to reflect on my own pro­cess of research and interpretation by recalling three kinds of evidence that

combined to shape my understanding of Miriam Van Waters’s sexuality: first, what her professional writings reveal about her intellectual catego­ries — that is, the authoritative discourses she encountered and may have internalized or modified; second, how personal sources such as letters and diaries provide clues to her subjective experience of sexuality; and third, how rumors, accusations, and assumptions enter the historical record and influence the historian. Together, these sources help explain why the burn­ing of letters continued in Van Waters’s lifetime and what it meant for her identity.

I The Prison Lesbian Race, Class, and the Construction of the Aggressive Female Homosexual, 1915 -1965

I first encountered references to lesbianism in women’s prisons during my dissertation research in the 1970s, but when I later uncovered rich accounts of sexual relations between prisoners in the papers of Miriam Van Waters, I decided to look more closely at this phenomenon. The prison lesbian, like the male psychopath, seemed to supplant the prostitute as a threat to social order during a period when the white female chas­tity ideal was declining. The psychopath remained a racially stable diagnosis applied to white men, but the prison lesbian transformed from a primarily African American threat to include both white and black working-class women. New historical research on both women’s prisons and homosexuality among incarcerated men in the twenti­eth century may help clarify the intriguing associations between race and gender roles in single-sex institutions.

in the mid-twentieth century, the subject of lesbians in prison began to attract both scholarly and popular attention in the United States.1 After World War II, criminologists depicted lesbian inmates as menacing social types. In popular culture as well, women’s prisons became synonymous with lesbianism. The emergence of the prison lesbian as a dangerous sexual pred­ator and the changing contours of this category over time provide a unique historical window on the social construction of homosexual identity.

The prison lesbian also reveals a complex reconfiguration of the class and racial meanings attached to sexuality in modern America. In the early twentieth century, most prison literature equated female sex crime almost entirely with prostitution and rarely inquired into the homosexual activi­ties of delinquent women. As criminologist Charles A. Ford puzzled in 1929, despite widespread evidence of lesbian relationships within women’s refor-

Previously published as Estelle B. Freedman, “The Prison Lesbian: Race, Class, and the Construction of the Aggressive Female Homosexual, 1915-1965,” Feminist Studies 22, no. 2 (Summer 1996): 397-423. Reprinted by permission of Feminist Studies, Inc.

matories, very few studies had been written about the subject. When authors did mention homosexuality, they usually identified black women as lesbian aggressors and white women as temporary partners. By the 1960s, psycholo­gists and criminologists had become intrigued with lesbianism in prison, publishing books and articles on the subject and suggesting that homosexu­als “present the greatest sexual problem” in women s prisons. Unlike the earlier literature, the later studies extended the lesbian label to white women, emphasizing the threat of their aggressive homosexuality.2

The following exploration, first of the criminological literature and then of the records of the Massachusetts Reformatory for Women in Framing­ham, analyzes these simultaneous shifts in the conception of the prison les­bian. From an initial association with African American women, the image of the aggressive female homosexual extended after World War II to include white working-class prisoners as well. At the same time, greater public scru­tiny of prison lesbianism and concern about its “contaminating” effect on the society at large intensified the process of labeling female homosexuality in women’s prisons and beyond their walls.

a small body of historical literature provides a context for investigat­ing the prison lesbian. Alongside earlier studies of middle-class women’s romantic friendships and the medical reclassification of these relationships as perversion in the twentieth century, a rudimentary narrative of work­ing-class lesbian identity and community is now emerging. In brief, it sug­gests that in industrializing America, economic necessity led some work­ing-class women to “pass” as men and sometimes marry other women; in the early twentieth century, some single working-class women pooled their resources and lived together as couples in urban, furnished-room districts. For African American women, the Harlem Renaissance fostered a sexually experimental subculture that offered a measure of tolerance for homosexual relationships. During World War II, women’s work force and military par­ticipation intensified a process of homosexual community formation. Even in the postwar decade, when the hostile Cold War climate condemned ho­mosexuals as subversive, a public, working-class lesbian bar culture became increasingly visible.3

The prison system provides another location for understanding not only working-class lesbian history but also the importance of race and class rela­tions within this history. By the 1920s, almost every state and the federal government had established a separate adult women’s reformatory.4 The majority of inmates came from working-class backgrounds and were often daughters of immigrants; only a small minority were African American.5 Most of the reformatory inmates had been sentenced for “crimes against public order,” including drunkenness, vagrancy, and a variety of prostitu­tion-related offenses once labeled “crimes against chastity.” Many of the educated and professional women who worked in the reformatories sought to “uplift” the sexual morality of female inmates. Until the 1940s, however, women’s prison authorities concentrated on diverting inmates from hetero­sexual acts prohibited by law — especially prostitution. They rarely men­tioned lesbianism as a problem, and most women’s prison officials ignored evidence of homosexuality among inmates. This lack of interest contrasted with the approach of administrators of men’s prisons, who frequently la­beled and punished homosexuality.6

The one exception to the disavowal of lesbianism in women’s prisons highlights the racial construction of the aggressive female homosexual in the early twentieth century. Beginning in 1913, criminologists, psychologists, and state officials denounced one form of lesbian relationship — romances between black and white inmates — for disrupting prison discipline. These accounts usually represented African American women prisoners as mascu­line or aggressive and their white lovers as “normal” feminine women who would return to heterosexual relations upon release from prison. The earliest criminological study of lesbianism in prison described the practice of “nigger loving” by young white women committed to reformatories. Author Marga­ret Otis explained that “the love of ‘niggers’ ” had become a tradition in which black inmates sent courtship notes to incoming white inmates. The ensuing relationships ranged from casual to those of an “intensely sexual nature.” Despite this intensity, Otis claimed, once released, the white women rarely had contact with “the colored race,” nor, presumably, with women lovers.7

Observations of interracial lesbianism recurred within women’s prisons over the following decades. An officer at the New York State Reformatory for Women at Bedford Hills testified in 1915 that “the colored girls are extremely attractive to certain white girls.” Another official explained that these rela­tionships had existed since the founding of the reformatory in the nineteenth century, but recent overcrowding had made them more frequent. Blaming unrest at the reformatory on these liaisons, an investigative committee rec­ommended the segregation of black inmates at Bedford Hills. Their rationale echoed the sexual fears that underlay Jim Crow institutions in the South. The committee held that segregation was necessary not simply “because of the color line” but because “the most undesirable sex relations grow out of this mingling of the two races.” Even though these homosexual relation­ships did not lead to the kind of amalgamation most feared by white su­premacists — namely, mixed-race offspring — the thought that white women would reject heterosexuality entirely—and thus reject their racial duty to reproduce — was intolerable. Even segregation, however, did not discour­age interracial homosexual unions or lessen the mythology surrounding black women’s sexual aggression. Black-white relationships persisted notice­ably in New York prisons, for example, fifteen years after the Bedford Hills investigation.8

In writing about interracial lesbian relationships, criminologists empha­sized the ways that race substituted for gender in women’s prisons. Black women took the role of “husbands,” white women of “wives,” in the New York reformatory Charles Ford studied in the 1920s. Samuel Kahn later quoted a New York City inmate who claimed that “there are more colored daddies and more white mamas” among women in the city jails. In 1943, one scholar reasoned that “Negroes” were sexually attractive to whites “because the White girls interpret the Negro aggression and dominance as ‘male­ness’” and because the blacks’ “uninhibited emotional expressions and some of their physical characteristics (dark skin) seem to enhance the sex attraction of the Negro girls.”9 In a 1941 fictional portrayal of a segregated women’s reformatory in the South, novelist Felice Swados incorporated the stereotype of black lesbian aggression. Inmate lore described “a cute blonde with dimples” who “got to going around with niggers.” The woman wound up in the hospital after “a great big black” woman “got too hot. Went crazy. Just tore her insides out.”10

Explanations of interracial attraction in terms of “male” aggression by black women mirrored in part the then-dominant theories of homosexual­ity as a form of gender inversion." At the same time, assigning the male – aggressor role to black women and preserving a semblance of femininity for their white partners racialized the sexual pathology of inversion. In this interpretation, white women were not really lesbians because they were at­tracted to men, for whom black women temporarily substituted. Thus, the prison literature racialized both lesbianism and butch/femme roles, implic­itly blaming black women for sexual aggression and, indeed, homosexuality by associating them with a male role.

Whether or not these explanations accurately reflected women inmates’ own erotic systems, the official interpretations reinforced long-standing as­sociations among race, sexuality, and gender roles. In the nineteenth cen­tury, for example, medical authorities had regarded African women’s geni­tals as pathological, and according to Sander Gilman, they even associated “the concupiscence of the black” with “the sexuality of the lesbian.” Because “lesbian” then connoted both maleness and a lack of feminine virtue, the label effectively denied gender privileges to black women. Like the cultural assignment of strong, even insatiable, sexual desire to African American women, the identification of black women as aggressive butch lesbians rested on a denial of their womanhood.12

Similarly, twentieth-century criminologists often correlated race, sexual deviance, and aggression. Theories of black women’s greater criminality rested in part on a model of sexual inversion, in which black women more easily engaged in “male” aggressive behaviors. As one criminal psychiatrist explained in 1942, “colored females” predominated among aggressive women criminals because the “accepted ideological codes of Harlem” condoned vio­lence on their part, especially if related to a love triangle. The writer identi­fied one other category of aggressive female felonies, which he labeled “les­bian homicides.” Presumably committed by black or white women, in these cases, “murder obviously afforded an unconscious destruction of the mur­deress’ own homosexual cravings.” Another study of working-class black women suggested that homosexuality was prevalent among black prostitutes because both prostitution and homosexuality stemmed from a “fundamen­tal inability” to accept the “feminine role.”i3

White women clearly participated in lesbian relations in prisons, and no doubt they had white as well as black partners. Yet the early-twentieth – century criminological literature on white women’s sexuality invariably discussed prostitution, not homosexuality. Even as psychoanalytic concepts filtered into American criminology, it was white women’s heterosexual de­viance that attracted attention. As historian Elizabeth Lunbeck has shown, in the early twentieth century, the new diagnosis of sexual psychopathy— a term implying uncontrollable libidinal instincts that would later become a code for male homosexuality— at first applied to heterosexually active white women. Because psychologists presumed that black women were naturally promiscuous, they did not label them as diseased psychopaths/4 Through­out the 1920s and 1930s, the growing literature on psychopathic crime rarely addressed lesbianism. A 1934 study of psychopathic women, for example, found that only a few cases could be classified as homosexual. As late as 1941, one criminologist argued that juvenile homosexuality was more common among male than female offenders, while “heterosexual delinquency is by far the girl’s premier offence.” Even as a “lesbian taboo” in marital advice literature warned middle-class women to remain heterosexual or risk be­coming abnormal deviants, few writers portrayed white lesbians as danger­ous criminals.15

The paucity of either scholarly or popular attention to lesbianism among women in prison did not necessarily reflect the extent of the practice between 1915 and 1940. The few criminologists who did observe women’s relation­ships in prison documented a sexually active and often racially constructed lesbian subculture. In the New York City House of Detention, for example, women prisoners engaged in “bulldiking,” and their love affairs included regular tribadism. At other institutions, “wives” and “husbands” found ways to send sexually explicit love letters to each other. “You can take my tie / You can take my collor / But I’ll jazze you / Till you holier,” one black “husband” wrote to “My dearest Wife Gloria,” who responded, “Sugar dady if I could sleep with you for one little night, I would show you how much I hon[es]tly and truly I love you.” Other inmates scratched their “friend’s” initials on their skin and smuggled contraband presents in their bras. The administra­tor of one reform school recalled that white girls aggressively pursued black girls, a pattern rarely reported in the criminological literature^6

For the most part, women’s prison administrators either tolerated these lesbian relationships or denied their existence. When physician Samuel Kahn published the first book-length study of prison homosexuality in 1937 (based on research conducted a decade earlier), he seemed dismayed to re­port that at the New York City Women’s Workhouse, in contrast to the men’s division, “the homosexuals have been unclassified and are not segregated. . . so that they all mingle freely with the other inmates.” When Kahn sought out lesbians to interview, neither the woman warden nor the male priests at the workhouse were willing to identify inmates as homosexuals. In Five Hundred Delinquent Women, the classic 1934 study of women prisoners con­ducted at the Massachusetts women’s reformatory, criminologists Sheldon Glueck and Eleanor Glueck never referred to lesbianism/7

Women’s prison administrators may have been reluctant to call attention to the subject of homosexuality because many of them were single profes­sional women who maintained close personal bonds with other women and could be vulnerable to charges of lesbianism. According to the superinten­dent of several reform schools for girls, in the 1920s women’s prison workers recognized the problem of homosexuality but never openly talked about it. One superintendent who lectured inmates of a girls’ reformatory about the dangers of homosexuality was pressured into resigning in 1931, in part be­cause she addressed such an “embarrassing subject” and in part because she accused both staff members and local businesswomen of having “immoral relationships.” In 1931, officials preferred to be silent about these possibilities of lesbianism rather than call attention to them.18

The disinclination to acknowledge lesbianism in prison lasted until the 1940s, when both prison administrators and criminologists began to express more concern about female homosexuality. The reasons for a gradual shift in awareness included increased arrests for prostitution during World War II and consequent prison overcrowding. Some prostitutes were also lesbians, and the doubling up of women in cells may have intensified lesbian activity. A growing lesbian subculture centered around predominantly white, work­ing-class bars may have heightened lesbian identity for some women who wound up in jails and prisons. Aside from any actual increase in lesbian activity in prison, fears about the dangers of female sexual expression esca­lated during wartime, especially targeting white women as the purveyors of venereal disease to soldiers or as seductive saboteurs. It was in this context that female homosexuality in general and lesbianism among white women in prisons came under closer scrutiny.

A new consciousness about prison lesbianism appeared, for example, among the superintendents of women’s institutions, who met annually to discuss common problems. Several of them had acknowledged black-white sexual liaisons in institutions previously, but for the most part, the super­intendents had been concerned about heterosexual irregularities among inmates. Only during the 1940s did they introduce the topic of how to man­age homosexual relationships in institutions. At one annual conference, for example, they questioned their guest speaker, Margaret Mead, about “how much we should worry about homosexuality.” Although Mead advised them to “keep it down as much as possible,” the anthropologist — who had herself been sexually involved with women — also argued that female homosexu­ality was much less socially dangerous than male homosexuality because women tended toward “more or less permanent relationship^] in which one person looks after the welfare of the other, makes them silk underwear, etc. The male homosexuality, on the other hand, is exploitive and promiscuous — it is not a paired sexuality.” Mead believed that women’s relatively benign institutional homosexuality was a temporary substitute for heterosexual re­lations. Unlike earlier writers, however, she did not identify any racial pat­terns in lesbian role-playing. Her tolerant attitude, echoed by other speak­ers, counseled adequate recreation and social stimulation as diversions from homosexuality in prison/9

In the postwar decade, however, the relative tolerance that had character­ized the treatment of prison lesbianism gradually gave way to greater sur-

veillance and ultimately to condemnation. The shift from lack of interest to fascination with the prison lesbian can be seen within U. S. popular and political culture shortly after World War II. In the 1950s, True Confessions magazine sensationalized accounts of “love-starved girls in reform school,” while pulp novels incorporated women’s prison seduction scenes. Hollywood produced a series of women’s prison films, replete with lesbian innuendo. In contrast to the earliest women’s prison films, in which the lesbian was por­trayed as comic and benign, a dangerously aggressive lesbian criminal now threatened the innocence of young women, as in the 1950 film Caged. At the same time, politicians began to target “aggressive female homosexuals” in prison as a serious threat to moral order. During the 1950s, they invoked im­ages of lesbians in prison as part of a larger Cold War campaign to discredit liberal reformers for being soft on perversion, as on communism.20 By the late 1950s, women who formed homosexual relationships in prison had be­come stock cultural characters associated with threats to sexual and social order. At the same time, black women ceased to be the primary suspects as prison lesbians. Class marking seemed to be replacing earlier race mark­ing, making both black and white working-class women more vulnerable to charges of deviance, while still exempting middle-class women. By the 1960s, the criminological literature no longer relied on an exclusively ra­cial definition of lesbians and emphasized the social threat of white lesbian activity.

These changes coincided with a larger cultural emphasis on both the power of female sexuality and the need to contain it within domestic rela­tionships among white and middle-class Americans. Reflecting the rhetoric of Cold War America, which sought to identify internal enemies who threat­ened social order, the postwar clinical literature on lesbianism elaborated upon the image of the aggressive female homosexual, but it rarely targeted black women. The new stereotype drew upon earlier concepts of the male sexual psychopath, whose uncontrolled, often violent, sexuality threatened to disrupt social order. In contrast to earlier studies that had posited little re­lationship between psychopathy and lesbianism, writers now suggested “the possibly greater tendency of the [female] psychopaths to engage in sex acts with other girls.” New psychoanalytic theories also contributed to the image of a dangerous, promiscuous lesbian. One writer, for example, differentiated between female homosexuals who simply preferred the company of women and a rarer group containing “the more dangerous type — the promiscuous Lesbian who passing quickly and lightly from affair to affair, usually with physical relations, may cause great harm and unhappiness.” Just as the male psychopath was invariably portrayed as white and often middle class, the dangerous lesbian was no longer marked as a racial minority but appeared to be white, although usually working class.21

Along with serious psychological studies, pseudoscientific works of the 1950s conflated the lesbian and the woman criminal. In her study of postwar lesbian imagery, historian Donna Penn has summarized the portrayal of the lesbian found in popular works such as Frank Caprio’s Female Homo­sexuality as the “promiscuous, oversexed, conquering, aggressive dyke who exercised masculine prerogative in the sexual arena.” Like the prostitute, the lesbian now spread moral contagion. In Penn’s view, the demonization of the sinister, working-class lesbian helped shift the meaning of female homosex­uality away from the “Boston marriages” and innocent romantic friendships of middle-class women.22

The prison literature confirms Penn’s analysis but suggests a racial, as well as class, realignment in the demonology of lesbianism. The dangerous lesbian was less identified with a racially specified aggressive invert. Even though interracial unions continued to characterize women’s prison life, by the 1950s, it was the homosexuality of white women prisoners that became the object of intense scrutiny. Larger social trends contributed to this racial shift, including the gradual sexualization of white women in popular cul­ture and the emergence of visible white, working-class lesbian institutions in the postwar period, such as the bar culture studied by Madeline Davis and Elizabeth Lapovsky Kennedy” The prison lesbian now appeared not primarily as an African American but more typically as a white woman, albeit one who may have sexually crossed a racial boundary in the process of becoming homosexual. Of either race, she became the “unnatural woman” personified, a threat to other inmates and to women outside the prison. If earlier tolerance had rested on an assumption of the natural depravity or inherent sexual inversion of black women, it is not surprising that the revela­tion of white women’s lesbianism in prison would sound an alert, a warn­ing about the potential degeneration of theoretically “true” womanhood. Indeed, by the mid-1950s, institutional tolerance gave way to a call to “sort out the real homosexual” in prison through psychological testing and to

“segregate those who show strong homosexual inclinations,” with no refer­. "74

ence to race.

A good example of the new attitude toward prison lesbianism appeared in a popular 1956 book written by Katharine Sullivan, a conservative member of the Massachusetts parole board. According to Sullivan, “No age or race is immune to the temptations of homosexuality in prisons.” Moreover, the prison lesbians she described had violent, almost animalistic, characters. Jealousies led to “hand-to-hand fights or even free-for-alls.” If separated from a lover, Sullivan warned, the surviving partner “may suffer an acute attack of homosexual panic, with violent screaming and frothing at the mouth, followed by a period of wan anxiety.”25

In contrast to earlier writers, Sullivan firmly believed that once a woman engaged in homosexual acts in prison, she quickly became “addicted” and built her life around the practice after release. In one example, a young, white parolee named Mary learned about the “doll racket” in prison and now wanted nothing to do with men. Visited on parole, she sported a new boyish haircut, no makeup, and boys’ clothes, and, significantly, had set up a household with two black women. Unlike the “nigger lovers” described by Otis in 1913 who rejected interracial relations after release, Mary continued to associate with black women on the outside. She even adopted a butch identity that had been racially specific to black women in the past. Earlier racial stereotypes continued to operate as well. Sullivan depicted Mary’s black roommates as the antithesis of natural women: they were “large,” “rangy,” and sloppily dressed in jeans and T-shirts. Mary, she implied, had descended into an interracial netherworld from which she would emerge an addicted lesbian. Indeed, Mary declared that when she turned twenty-one, she intended to “leave home and go to live permanently in one of the big cit­ies in America, where Lesbians flourish.” Sullivan clearly wished to prevent white women like Mary from being exposed to homosexuality in prison; she seemed much less concerned about the black women who adopted male styles.26

By the time the prison lesbian became the subject of extensive academic inquiry in the 1960s, race had practically disappeared from the scholarly research agenda. Sociological accounts of the “problem” of the prison lesbian described widespread homosexuality in women’s institutions and focused on the butch-femme role system that organized prison life, but like other supposedly “race-blind” works of the period, they evaded race, even when it influenced their findings.27 The two classic case studies that appeared in the 1960s — David A. Ward and Gene G. Kassebaum’s Women’s Prison: Sex and Social Structure and Rose Giallombardo’s Society of Women: A Study of a Women’s Prison — avoid mentioning race in their descriptions of prison social life and sexual roles. Giallombardo’s discussion of fictive marriage patterns among women prisoners never referred to race, even though her kinship diagrams, read closely, reveal that the majority of “marriages” were interracial.28 In short, race may have continued to play a role in the erotic

life of prisoners, but observers presented a lesbian world that, lacking racial markers, appeared to be entirely white.29

The racial shift in the construction of the prison lesbian, taken together with other evidence of postwar moral panics, suggests deep-seated cultural anxieties about the instability of white heterosexuality. Although focused on working-class women who wound up in prison and those who were forming a lesbian subculture in various cities, the discourse reached a broader public. Literary critic Lynda Hart has argued that the historical construction of the lesbian has often projected a “secret” sexual identity onto working-class women, as well as women of color, while it simultaneously speaks loudly to fears about the sexuality of middle – and upper-class white women. In post­war America, as popular and commercial culture elaborated upon white women’s sexual availability and effective medical treatment of venereal dis­ease made prostitutes seem less threatening than in the past, several new boundaries appeared to help shore up white, marital heterosexuality. The outlaws included the frigid career woman, the black welfare mother, and the prison lesbian.30 a case study of the Massachusetts Reformatory for Women further illus­trates both the changing racial construction of the aggressive female homo­sexual and the shift from a period of institutional denial or tolerance to one of labeling and strict surveillance. The reformatory, founded in 1877, typi­cally housed between 300 and 400 adult female prisoners, the vast majority of whom served two – to five-year terms for minor offenses against public order, such as drunkenness and prostitution (often coded as vagrancy or “lewdness”). As in most northern reformatories, until the 1960s, the popula­tion was overwhelmingly white. The institution had a scattered history of liberal administrations aimed at uplifting so-called fallen women. Miriam Van Waters, who became the reformatory superintendent in 1932, expanded upon this mission by providing education, social welfare services, psychiat­ric counseling, and work opportunities outside prison.

As in other institutions, the earliest references to lesbian relations at the Massachusetts reformatory noted attractions between white and black in­mates. In the 1930s, when Van Waters detected “black-white manifestation of homosexuality,” she followed the advice of writers such as Charles Ford and attempted to divert the black inmates by “stressing their prestige in Dra­matics, Spirituals, [and] Orchestra.” Other staff members also learned of romantic liaisons between inmates during the 1930s. One officer informed

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Van Waters of inmate gossip about the “doll” situation — the prison code for lesbians — and noted “the fuss the white girls make over the colored girls.” A few years later, when Van Waters commented that she observed no “overt white-white” relationships, she identified several interracial couples.31

Van Waters and her staff distinguished between true homosexuality and temporary attractions. They believed the former could be detected by the Rorschach test; in the absence of such “positive evidence,” they assumed that the boredom of prison routine stimulated unnatural interest in same-sex relationships. By offering an active program of classes and clubs, they at­tempted to channel the energies of both black and white prisoners into what the staff considered healthier recreations. Nonetheless, underground homo­sexual unions survived. Newcomers quickly learned about “dolls,” and love letters circulated among inmates. In 1938, for example, when an inmate tried to use her fear of sexual advances to convince the parole board to release her from the reformatory, she submitted love letters from other women to support her case. In addition, officers occasionally discovered two women in bed together, a problem that escalated during World War II, when increased prison commitments led to overcrowding^2

Prison records also reveal contradictory attitudes toward lesbian rela­tionships on the part of reformatory and court officials. The former were reluctant to label women as homosexuals, while the latter were willing to impose harsh penalties for openly lesbian relationships. The case of Marie LeBlanc, a white woman of French Canadian background, illustrates psy­chiatric tolerance within the institution and the punitive response of parole boards and courts.33 LeBlanc had become sexually involved with Eleanor Harris, another white inmate. The prison psychiatrist who “treated” her saw no reason not to recommend her for parole. When parole agents learned that, after release, LeBlanc had been sleeping with Harris and her husband, they revoked LeBlanc’s parole “for the best interests of herself and the com­munity.” She returned to prison for a year, then left on parole again. This time, she reportedly became involved with another former inmate, Jane MacGregor. The court convicted LeBlanc of “Open and Gross Lewdness” and sentenced her to another two years in the reformatory because of her lesbian relationship^

Jane MacGregor’s records further highlight the conflicting policies toward lesbianism. According to a reformatory psychiatrist, MacGregor had “no preference” between “hetero – and homosexual experience.” Because she was “not the aggressive one” in the latter, the psychiatrist did not consider her a true lesbian. Even after officers discovered MacGregor in bed with another inmate, the psychiatrist emphasized her need for motherly love and recom­mended that “it is far better to have some of these intense feelings directed toward an officer where the activity can be controlled than toward another student [inmate].” Only after MacGregor was repeatedly found in bed with other women did prison officials fear that she was “in danger of becoming a true homosexual.” Despite efforts to divert her interest in women into ath­letics and the care of animals (to “help take care of her need to demonstrate affection”), the psychiatrist eventually concluded that MacGregor was in fact “strongly homosexual.” Nonetheless, he supported her request for parole. The more conservative parole board revoked her release, however, explain­ing that she “engaged in homosexual activities to such an extent that she is unable to adjust in employment.”35

The inmates clearly knew that reformatory officials were reluctant to label same-sex relations, as the case of Barbara Jones illustrates. A white woman, Jones had been committed to prison for idle and disorderly conduct, which may have meant prostitution. At the reformatory, she tended to pair off with a “colored inmate,” laboring to maintain the relationship by “coveting favor with small gifts.” The staff tried to discourage the pairing by transferring Jones to a housing unit apart from her friend. Annoyed by the move, Jones wrote to a staff member with the expectation of tolerance and understand­ing. “You told me one time if I didn’t want people to complain to you about my actions I shouldn’t make them so obvious,” she explained. “I didn’t this time. It was purely what people thought. True, I was carrying on an affair, but I certainly wasn’t loud about it.”36

The relative tolerance toward homosexuality among the staff at the Mas­sachusetts Reformatory for Women could not survive long after World War II. Just as the psychological and popular literature began to emphasize a sinister, even predatory, lesbian, conservative Massachusetts politicians seized on the prison lesbian to discredit the unusually liberal reformatory administration. The investigation of an inmate suicide in 1947 led to reports of a “doll racket” at the reformatory, giving the Massachusetts Department of Corrections an opportunity to launch a series of probes of Superinten­dent Van Waters’s administration. Among their complaints, they charged that “many of the inmates receiving special favors are ‘known’ homosexuals or dangerous psychopaths.” Although Van Waters denied the charges, the politicians exploited them in the press, using prison lesbianism as a sensa – tionalistic wedge with which to expose Van Waters’s liberal attitudes toward rehabilitation.

Like the federal officials who soon outlawed the employment of homo­sexuals on the grounds that they spread corruption in the government, Mas­sachusetts officials claimed that homosexuals corrupted the young women of the state. Instead of prostitution, which had so disturbed an earlier gen­eration of Americans, homosexuality now represented the great destroyer of young women’s virtue. As Senator Michael LoPresti told the press, “Supt. Van Waters’ administration of the Women’s Reformatory has been more damaging to the morals and mental health of young girls than has the op­eration of White Slavery in all New England over the same period of time.”37 In 1949, when the commissioner of corrections dismissed Van Waters from office, he charged that she had “known of and failed to prevent the continu­ance of, or failed to know and recognize that an unwholesome relationship has existed between inmates of the Reformatory for Women which is called the ‘doll racket’ by inmates and some officer personnel; the terms ‘stud’ and ‘queen’ are used with implied meanings, and such association has resulted in ‘crushes,’ ‘courtships,’ and homosexual practises [sic] among the inmates in the Reformatory.’^8 Although the grounds for dismissal included Van Waters’s allowing inmates to work for pay outside the institution and hiring former inmates on the reformatory staff, the homosexual motif ran through­out the charges, fueling sensational newspaper coverage of the issue.

During several months of public hearings, Van Waters successfully de­fended her policies, in part by minimizing the existence of homosexuality at the reformatory, and in part by deferring to psychiatric authorities when asked about homosexual tendencies among inmates. Typical of her strategic evasion was this response to hostile interrogation about whether certain acts or personal styles revealed homosexual tendencies: “That, sir, is so distinctly a medical and technical question that I would not presume to answer it. One of the first things we are taught is that a homosexual tendency must be distinguished from a homosexual act. A homosexual tendency may be com­pletely repressed and turned into a variety of other expressions, including a great aversion to emotion.” By invoking the power of psychiatry, Van Wa­ters acknowledged the shifting meaning of homosexuality from an act to an identity and from a crime to a mental disorder. At the same time, she tried to avoid a labeling process that would mark close friends, mannish women, and those who had crushes on other inmates as confirmed homosexuals. Responding to further questions, she explained that a woman’s mannish dress and preference for men’s jobs resulted from early childhood neglect, not homosexual desire^9

Whether consciously or not, Van Waters’s testimony represented a form of resistance to the use of accusations of homosexuality to discredit non­conforming women. Rather than sacrifice some “mannish” women or close female friends by calling them homosexuals, latent homosexuals, or women with homosexual tendencies, she firmly opposed labeling. At the same time, like psychologists of the period, she did so by accepting a definition of true homosexuality as a pathology.

When the superintendent evaded the labeling of homosexuality, she also sidestepped implicit questions about her own sexual identity. In her per­sonal life, Van Waters had refused to label her love for a woman as a form of homosexuality, despite her long-term romantic partnership with Geraldine Thompson, who was known publicly only as a wealthy benefactor and a supporter of Van Waters’s reforms. Thus, she hesitated to assume that other women who appeared to fit the definition really were homosexuals, a term she reserved for women’s pathological, although curable, sexual aggression toward other women.40

In March 1949, a special panel appointed by the governor exonerated Van Waters of all charges and reinstated her as superintendent. During the two years of publicity concerning the “doll racket” at Framingham, however, the image of the homosexual woman criminal had been widely disseminated by both local and national media coverage of the Van Waters hearings. In the aftermath of the Van Waters case, prison lesbianism came under greater scrutiny, with white as well as black women subject to the charge. A few months after the hearings, for instance, the Massachusetts parole board taunted a white woman they suspected of homosexuality by asking whether she ought to have a sex-change operation because of her “boyish swagger.’^1 In addition, popular media further stereotyped inmates as lesbians. The Van Waters case directly inspired Caged, the prototypical women’s prison film, in which older, aggressive lesbians compete for access to an innocent young inmate. The lurid True Confessions tales of reform school lesbians also fol­lowed in the wake of the Van Waters case.

The image of the “aggressive homosexual,” along with greater surveillance by the Massachusetts Department of Corrections and the public, helped erode the earlier tolerance toward prison lesbianism among the Framingham staff. In the 1950s, despite Superintendent Van Waters’s continuing belief that healthy recreation could divert women from situational homosexuality, the reformatory capitulated to the antihomosexual climate by attempting to transfer lesbians out of the institution. Previously, even evidence of homo­sexual relations did not disqualify an inmate as a candidate for parole. Now, however, when a white woman on parole “made a connection with a married woman with the result that the woman left her husband,” Van Waters’s staff

refused to keep her at the reformatory. Labeled “hard-core,” these women were now transferred to county jails to serve their additional terms without benefit of reformatory programs.42

These efforts to weed out hard-core lesbians did not protect the Mas­sachusetts Reformatory for Women from further political scrutiny. In July 1957, an escapee fighting extradition claimed that alcohol, drugs, and ho­mosexuality made her afraid to return to the reformatory. Newspapers had a field day with the ensuing investigation. “Charge Sex Fiends, Boozers Run Wild in Women’s Prison” and “Girl Inmates ‘Wed’ in Mock Prison Rites,” the headlines read. A committee chaired by a conservative woman legisla­tor accused “aggressive homosexuals” of “escaping, assaulting officers and practicing unnatural acts!” The committee recommended greater security as well as the segregation of “aggressive homosexuals and belligerent non­conformists.” Even though such activity was “not rampant” at the reforma­tory, the legislators argued that the “real factor to be considered here” was “not the extent but the fact that it appears to have been overlooked.” They stated that “there have been mock marriages; there have been unnatural acts witnessed and reported by members of the staff, and there have been numerous indications of parolees carrying this type of activity outside the institution in association with others who had never participated in such actions before.”43

Because these lesbians — significantly unidentified by race — were be­lieved to corrupt other inmates and spread homosexual contagion into the broader society, officials now called for sexual, rather than racial, segrega­tion. By 1959, after Van Waters had retired, the Massachusetts Reformatory for Women instituted a lecture on sexuality for young inmates in which a psychiatrist warned them about experimenting with lesbianism because “it is a sick way of life” and one that could never lead to happiness.44 as in the larger society, in which McCarthy era campaigns identified homosexuals as the source of communist subversion and moral ruin, in the microcosm of the women’s prison, the lesbian became a scapegoat for the demise of institutional order and gender propriety. The very term “women’s prison” would long evoke an image of lesbian aggression. The association of lesbianism and criminality may have served as a warning to women who might be tempted to acknowledge their homosexual desires. To do so meant to lose both class and, for white women, race privilege, to descend into a criminal underworld vulnerable to the control of police and parole agents.

The prison lesbian thus represented an inverse of the ideal white woman of the 1950s, the “reprivatized” suburban housewife who served rather than challenged men.45

The shifting racial construction of the prison lesbian, in which the role of sexual aggressor extended from black to all working-class inmates, raises larger historical questions about race and sexuality. Although the sources reveal little about how either black or white lesbians constructed their own identities or about racial distinctions in the treatment of lesbians in prison, they do point toward a fluidity in the racial construction of sexual boundar­ies. After the 1940s, prostitution and promiscuity seemed less problematic for white working-class women than they had before; white unwed moth­ers, for example, could now be forgiven and “cured.” In contrast, homo­sexuality among white working-class women loomed larger as a threat to social order, as evidenced by the negative portrayals of bar dykes, lesbian athletes, and prison lesbians. At the same time, for working-class black women, homosexual aggression now attracted less attention than did the newly emergent image of the black unwed mother on welfare. The literature on deviance reacted against both white women’s rejection of reproductive heterosexuality (lesbianism) and black women’s “excessive” reproductive ac­tivity (illegitimacy)^6

Specific historical contexts in the postwar period can help explain this shift, including the development of penicillin, which lessened fears about prostitutes, and the increased social costs of out-of-wedlock births in light of the establishment of government aid to dependent children. The pattern of reaction, however, can be found much earlier in American history, espe­cially during the race suicide scare at the turn of the twentieth century, when mass immigration triggered admonitions to middle-class white women to bear children lest the foreign-born dominate American society. Similarly, the shifting sexual and racial demonizations during the 1940s responded in part to the continued northern migration of blacks. In addition, wartime economic opportunities may have contributed to fears about women usurp­ing male prerogatives, so that the aggressive white lesbian became a symbol of excessive female independence.

The representation of the prison lesbian also suggests how class became a clearer marker of sexual identity. Middle-class women who resisted the labeling of lesbianism— as did Miriam Van Waters— may have avoided so­cial stigma for themselves and protected some of the women under their supervision. Nonetheless, the image of the aggressive female homosexual made these reformers vulnerable to political attacks that eventually weak­ened their moral authority and lessened their ability to protect working-class lesbians in prison. At the same time, the emergence of the malignant image of the criminal lesbian widened the class gulfs among women. Many white women who loved other women gladly claimed their race and class privilege by disassociating themselves from a category that included bar lesbians and criminals. In the process, these middle-class women often denied their own desires or insured their own social isolation. For those who did acknowledge their lesbianism, maintaining middle-class status meant rejecting any affili­ation with working-class lesbians and the butch-femme roles that had been pathologized by the 1950s.47

It was the prison lesbian, however, who paid the highest price for the greater cultural recognition of women’s sexual desires and the weakening of middle-class women’s public authority. Once ignored or tolerated, the prison lesbian became a symbol of social disorder, not unlike the prostitute of an earlier period. Even as subsequent generations of middle-class women first rejected the models of criminality and sickness in favor of lesbian feminism and more recently have elaborated a subversive “outlaw” identity, women in prison have continued to suffer from the older cultural construction. Prison lesbians, a 1987 study proclaimed, are “more criminalistic, more feministic and more aggressive” than other prisoners. These stereotypes help explain why lesbians serve longer terms than nonlesbians and why prison officials continue to treat lesbians more harshly than other women. The greater vul­nerability of prison lesbians is suggested, as well, by the fact that implica­tions of lesbianism have been part of the prosecution strategy in 40 percent of the cases of women currently awaiting execution in the United States^ The serious consequences of the persistent conflation of lesbianism and ag­gressive criminality are rarely addressed by either contemporary feminists or penologists because working-class women in prison remain largely invis­ible in critiques of sexual injustice. Ignoring the historical construction of the aggressive female homosexual, however, allows the specter of the prison lesbian to continue to police class and sexual boundaries, both inside and outside prison walls.