*1
AND
IMMIGRATION
v.
BOUTILIER
SERVICE.
NATURALIZATION
May 22, 1967.
14, 1967. Decided
Argued March
440.
No.
petitioner.
for
the cause
argued
Freedman
Blanch
Brown.
Robert
was
briefs
on the
her
With
On
respondent.
cause
argued
Lewin
Nathan
Marshall, Assistant
Solicitor General
brief were
R. Monahan.
Philip
and
Vinson
Attorney General
by
filed
were
reversal,
curiae, urging
amici
Briefs of
H. Levine
Alan
and
Carliner,
Dembitz
Nanette
David
by
and
al.,
et
Liberties Union
Civil
American
for the
Society
America.
Law Reform
Homosexual
the Court.
opinion
delivered
Clark
Mr. Justice
deported
ordered
has been
alien,
an
petitioner,
country
this
entry into
upon
as one
to Canada
psychopathic
“afflicted
and therefore
a homosexual
of the
(a) (4)
212§
under
and excludable
personality”
182,
Stat.
1952, 66
Nationality Act of
Immigration
from the
appeal
Petitioner's
(a)(4).*
S. C. §
8 U.
Act,
provided in this
Except
(a)
as otherwise
212.
*“Sec.
visas
ineligible to receive
be
shall
following
of aliens
classes
States:
into
United
from admission
shall be excluded
epilepsy,
personality,
or a
psychopathic
afflicted with
“(4) Aliens
. . . .”
defect
mental
Nationality Act,
Immigration
241(a)(1)
of the
Section
“Any
provides that:
alien
(a)(1),
C.S.
204,
§
8 U.
66 Stat.
finding of the Special Inquiry Officer was
dismissed
the Board of Immigration Appeals, without opinion, and
*2
petition
his
for review in the Court of Appeals was dis-
missed, with one judge dissenting.
I. Petitioner, a Canadian national, was first admitted to this country on June 22, 1955, at the age 21. His last entry inwas 1959, at which time he was returning from a short trip to Canada. His mother and stepfather and three of his brothers and live in sisters the United States. In 1963 he applied for citizenship and submitted to the Naturalization Examiner an affidavit which he admitted that he was arrested in New York in October 1959, on a charge of sodomy, which was later reduced to simple assault and thereafter on dismissed default complainant. In 1964, petitioner, at the request of the Government, submitted another affidavit which revealed the full history of his sexual deviate behavior. It stated that his first experience homosexual occurred when he was 14 years of age, some years seven before his entry into the United States. Petitioner was evidently pas- a sive participant in this encounter. His episode next age 16 and occurred public in a park in Halifax, Nova Scotia. Petitioner was the active participant in this affair. During the next five years immediately preceding the United . shall, States . . upon the order of Attorney General, deported be (1) at the entry time of was within who — one or more of the classes of aliens excludable existing law at the time such entry . . . .” had petitioner States the United entry into his first times or four average of three on an relations homosexual he had entry to his prior also stated that He year. a four occa- three on relations in heterosexual engaged immediately years and one-half eight During the sions. his second time of toup entry, subsequent re- homosexual have continued statement, petitioner year. or four times three average of on an lations awith apartment an had shared petitioner Since relations. homosexual had had he whom man Health the Public was submitted 1964 affidavit was ex- whether as to opinion for its Service entry. The of his at the time any reason cludable stating in 1964 a certificate issued Service Health Public *3 peti- subscribing physicians the of opinion in the that namely, condition, A class awith afflicted “was tioner of time at the deviate” sexual personality, psychopathic in- then were proceedings Deportation admission. his Inquiry Special the question,” ‘‘No serious stituted. respondent by the either raised “has been found, Officer psychiatrists the [em- counsel here], his [petitioner on reports have submitted by petitioner] ployed Indeed, the deviation.” sexual as respondent the “con- psychiatrists petitioner’s both that found officer a been a homosexual has respondent the cede of such by reason conclude years but number deviation, psychopathic a is not respondent the sexual the facts, on Finding against personality.” purely legal reduced to officer before issue personality” “psychopathic term of whether question illegality because if it suffered homosexuals included vagueness. II. beyond a Act indicates history of the legislative phrase Congress intended a doubt
shadow such homosexuals to include personality” “psychopathic as petitioner.
Prior to the 1952 Act the immigration law excluded “persons of constitutional psychopathic inferiority.” Stat. 875, amended, S.U. C. § 136 (a) (1946 ed.). Beginning in 1950, subcommittee the Senate Com- mittee on the Judiciary conducted a comprehensive study of the immigration laws its report found “that the purpose of the provision against ‘persons with constitu- tional psychopathic inferiority’ will be more adequately served by changing that term to ‘persons afflicted with psychopathic personality,’ and that the classes of men- tally defectives should be enlarged to include homosexuals and other sex perverts.” S. Rep. No. 1515, 81st Cong., 2d Sess., p. 345. The resulting legislation was first intro- duced as S. 3455 and used the new phrase “psychopathic personality.” The bill, however, contained an additional clause providing for the exclusion of aliens “who are homosexuals or sex perverts.” As the legislation pro- gressed (now S. 2550 in the 82d Congress), however, it omitted the latter clause “who are homosexuals or sex perverts” and used only the phrase “psychopathic per- sonality.” The omission is explained by the Judiciary Committee Report on the bill:
“The provisio[n] of S. 716 [one of the earlier bills not enacted] which specifically excluded homosex- *4 uals and sex perverts as a separate excludable class does not appear in the instant bill. The Public Health Service has advised that the provision for the exclusion of aliens afflicted with psychopathic personality or a mental defect which appears in the instant bill is sufficiently broad to provide for the exclusion of homosexuals and sex perverts. This change nomenclature is not to he construed in any way as modifying the intent to exclude all aliens who are sexual deviates.” (Emphasis supplied.) S. Rep. No. 1137, 82d Cong., 2d Sess., p. 9. position the adopted 5678, H. R. bill, a Likewise, House “psycho- phrase the that Service Health Public the and homosexuals entry from excluded personality” pathic shows bill the accompanied that report The perverts. sex adopted Judiciary Committee House that the cléarly “psy- that Service Health of the Public recommendation a Act as in the be used should personality” chopathic homosexuals from admission exclude that would phrase 2d Cong., 82d 1365, Rep. R. No. H. perverts. and sex adopted, the specifically length, at quoted It Sess. that recommended which report Health Service Public “specify to be used personality” “psychopathic the term homosexuality or behavior pathologic types such that therefore, conclude We, perversion.” sexual not personality” “psychopathic phrase Congress used the to ex- purpose its but sense, to effectuate in clinical perverts. other sex entry all homosexuals from clude psy- with only persons that Petitioner stresses afflicted says, is This, he excludable. personality chopathic mani- may be which psychiatric, condition, physical “a including sexual behavior.” ways, in different fested admissions. must fall his own Petitioner’s contention admittedly entry petitioner years prior his For over six homosexual a course of conduct. followed continued found certified doctors Public Health Service entry petitioner “was afflicted time of personality, namely, psychopathic A condition, a class if stipulated that these . . . .” It deviate was sexual testify they case appear would were doctors served purpose “no would be useful to this effect and psychiatric material this additional by submitting [fur- States Pub- by petitioner’s nished doctors] United clearly . .” The . . Government lic Health Service entry. petitioner homosexual at established do now support record, in the we not Having substantial especially finding, since admitted disturb that *5 being a homosexual at the time of his entry. The exist- ence this condition over a continuous and uninter- rupted period prior to and at the time of petitioner’s entry clearly supports the ultimate finding upon which the order of deportation was based.
III.
Petitioner
says, even so, the section as construed is
constitutionally defective because it did not adequately
warn him that his sexual affliction at the time of entry
could lead to his deportation.
It is true that
this Court
has held the “void for vagueness” doctrine applicable to
civil as well as criminal actions. See Small Co. v. Am.
Sugar
Co.,
or standard at all. . . .” In short, the exaction strip must a participant of his rights to come within the principle of the cases. But the “exaction” of § 212 (a) (4) ap never plied to petitioner’s conduct after entry. The section im poses neither regulation of nor sanction for In conduct. therefore, this situation, no necessity guidance exists for so that one may avoid the applicability of the law. The is not being deported for conduct engaged in after his entry into the United States, but rather characteristics possessed he the time entry. Here, when petitioner first presented himself at our border for entrance, he was already afflicted with homo sexuality. pattern was cut, and under it he was not admissible.
The constitutional requirement of fair warning has no applicability to standards such as are laid down in § 212 (a) (4) for admission of aliens to the United States. It has long been held that the Congress has plenary power to make rules for the admission of aliens and to ex- clude those possess those characteristics which Con- gress has forbidden. See The Chinese Exclusion Case, *6 124 that Congress commanded Here (1889). 581 S.U. was petitioner The enter. to allowed not be
homosexuals ordered was characteristic that have found his order was deportation The basis deported. e., entry, i. prior of time long period for a affliction may be, as entry. It his before years one-half six and is a medi- personality” “psychopathic that claim, some separate including several term, ambiguous cally Psychiatry Clinical Modern Noyes, afflictions. distinct what the Con- But the test here is 1948). (3d ed. may differing psychiatrists what not intended, gress but an test, a clinical laying down not It was think. to be inclusive which it declared exclusionary standard characteristics. perverted having homosexual of those history of legislative disputed that hardly can be It Congress so intended. (a)(4) clearly § shows warning he no and that says that had petitioner But come down at the interpretation of the section had no entry. he he was Therefore, argues, time of his 1955 engaged fact homosexual conduct unaware of the entry deportation. after could lead to his We do not petitioner’s post-entry believe that conduct is the basis deportation entry order. At the time of his first continuously he had been homosexuality afflicted with years. for over six us the To statute is clear. It fixes “the entry” time of as the crucial date and the record shows findings of the Public Health Service doctors Special and the Inquiry Officer all were based on that date. We find no indication that the post-entry any evidence was of consequence in the ultimate decision of the doctors, hearing officer or the court. Indeed, the proof was uncontradicted as petitioner’s character- istic entry at the time of and this brought him within the excludable A class. standard applicable solely to entry time of hardly could vague be as to post-entry conduct. raises other points, including the claim
that an “arriving alien” under the Act is entitled to medi- cal examination. Since he is an “arriving alien” not. subject to exclusion, but a deportable alien within an ex- cludable class—who through error permitted entry— it is if doubtful requirement would apply. But we not go need into the question since petitioner was twice offered examination and refused to submit himself. He can hardly be heard to complain now. The remaining *7 contentions are likewise without merit.
Affirmed. Mb. Justice Brennan dissents for the reasons stated by Judge Moore of the Court Appeals, 363 F. 2d 488, 496-499.
Me. Justice Douglas, with whom Me. Justice Foetas concurs, dissenting.
The term “psychopathic personality” is a treacherous one like “communist” inor an day earlier “Bolshevik.” A label of this kind when freely used may mean only an unpopular person. It is much too vague by consti- tutional standards for the imposition of penalties or punishment.
Cleckley defines “psychopathic personality” one as who has the following characteristics:
(1) Superficial charm and good “intelligence.” (2) Absence of delusions and signs other of irrational “thinking.” (3) Absence of “nervousness” or psycho- neurotic manifestations. (4) Unreliability. (5) Un- truthfulness and insincerity. (6) Lack of remorse or shame. (7) Inadequately motivated antisocial (8) behavior. Poor judgment and failure to learn by experience. (9) Pathologic egocentricity and incapacity for love. (10) General poverty in major affective reactions. (11) Specific of insight. loss rela- interpersonal general Unresponsiveness (12) uninviting behavior and Fantastic (13) tions. rarely Suicide (14) without. sometimes and drink and impersonal, trivial Sex life (15) out. carried life any to follow Failure (16) integrated. poorly (1941). 238-255 Sanity Mask The Cleckley, plan. “a means according some “psychopath” word The Psychiatry Weihofen, & Guttmacher mind.” sick (1952): Law 86 of the knowledge, most present light “In the should personalities psychopathic called individuals neurotic from suffering considered be probably part, most are, They disorders. character anxiety, by tension harassed persons, unhappy conflicts unconscious against struggling years early very during the created which were existence even nature The childhood. restlessly on are drive them which conflicts these anxiety rises When to them. unknown anti- through relief some they seek pitch, certain pattern this with which frequency act. social *8 upon part in dependent is individual the recurs in upon the conflict, unconscious the intensity of the environ- upon chance anxiety, for tolerance decrease heighten or may which situations mental type of this diagnostic criteria of chief the it. One repeti- is the delinquency neurotically determined of as explanation, The usual the pattern. of tiveness has check-writer the recidivistic example, checks’ is writing bad of habit in ‘got the just Id., at 88-89. meaningless.” designa- meaningless is a it think that experts Many agreement ... common any there yet is “Not tion. Clin- Noyes, Modern etiology.” .. or . to classification only conclu- 1948). “The ed. (3d Psychiatry ical or that, some time warrantable seems sion other by reputable some authority, psycho- term pathic personality has been used to designate every type conceivable abnormal character.” Curran & Mallinson, Psychopathic Personality, 90 J. Mental Sci. 266, 278. See also Guttmacher, Diagnosis and Etiology of Psychopathic Personalities as Perceived in Our Time, in Current Problems in Psychiatric Diagnosis 139, 154 (Hoch & Zubin ed. 1953); Tappan, Sexual Offences and of Sexual Treatment in Offenders the United States, in Sexual Offences 500, (Radzinowicz 1957). ed. It is much too treacherously vague a term to allow high penalty deportation to turn on it.
When it comes to sex, problem is complex. Those “who fail reach sexual maturity (hetero-sexuality), and who remain at a narcissistic or homosexual stage” are products “of heredity, glandular dysfunction, [or] of environmental circumstances.” Henderson, Psycho- pathic Constitution and Criminal Behaviour, in Mental Abnormality and Crime 105, (Radzinowicz & Turner 1949). ed.
The homosexual is one, some freak, is the product of an development: arrested
“All people have originally bisexual tendencies which more less developed and which the course of time normally deviate either in the direction of male or female. This may indicate that a trace homosexuality, no matter how weak may it be, exists in every human being. It is present in the ado- lescent stage, where there is a considerable amount sexuality.” undifferentiated Abrahamsen, Crime Human Mind 117 (1944). Many homosexuals become involved in violations of laws; many do not. Kinsey reported:
“It possible is not to insist that any departure from sexual the mores, or any participation in so- cially taboo activities, always, or even in- usually, histories case psychosis, or a neurosis volves who most individuals that demonstrate abundantly satisfactory social make in taboo activities engage adult few actuality, in are, There adjustments. their over disturbed particularly are who males psychologists, clinical Psychiatrists, histories. sexual maladjustment, cases who deal and others diffi- find people most feel that come sometimes is a clinic lives; but their sexual adjusting in culty incidence The figures. incidence to secure no place no is sanitarium a tuberculosis in of tuberculosis popu- in the of tuberculosis of the incidence measure of disturbance incidence and whole; lation as come persons among the activities, sexual over of similar frequency measure is no clinic, ato impression of clinics. outside disturbances masturba- as ‘excessive’ irregularities’ ‘sexual such pre- for a responsibility intercourse, tion, pre-marital mouth- intercourse, extra-marital pregnancy, marital or animal activity, homosexual contacts, genital abnormal and psychoses always produce intercourse, per- fact upon is based personalities for advice sources professional go who do sons things. by these upset are types particular believe “It is unwarranted psy- expressions always of sexual behavior more they are actuality, In neuroses. choses in biologically basic of what expressions often a de- and of behavior, anthropoid mammalian Many of social convention. disregard for liberate per- intellectually significant most socially educators, scientists, histories, successful our in sons persons men, clergymen, business physicians, socially affairs, have governmental high position among histories, and sexual in their items taboo range nearly the whole accepted have they them
129 of so-called sexual abnormalities. the so- Among cially most successful and personally adjusted best persons who have contributed present study, to the there are some whose rates outlet high are as any those in case labelled nymphomania satyriasis or in the literature, recognized as such in the clinic.” Kinsey, Sexual in Behavior the Human Male 201- (1948). 202 knowledge
It common in this century homo- high sexuals have risen in public our own service—both in Congress and in the Executive Branch —and have served with distinction. It is not therefore credible that Congress deport wanted to everyone and anyone who a deviate, sexual no matter how blameless his social conduct had been nor how creative his nor work how valuable his contribution society. agree I with Judge Moore, dissenting below, legislative history should be read Congress not as imputing to a purpose to classify heading under the “psychopathic personality” every person who had ever had a experience: homosexual Kinsey
“Professor estimated ‘at per least 37 cent’ of population the American male has at least one experience, homosexual defined in phys- terms ical point contact to the of orgasm, between the be- ginning of adolescence and age.1 Pom- Kinsey, old 1 activity “Homosexual in the frequent human male is much more ordinarily than is In youngest realized .... group, unmarried quarter (27.3%) more than a of the males have some homosexual activity point orgasm to the among .... The incidence these single age groups males rises in successive until it reaches a maximum per years 38.7 cent age. between 36
“High frequencies do not occur they as often in the homosexual as do in activity some other kinds of Populations sexual .... are more homogeneous regard in may to this outlet. This reflect the diffi- having frequent culties in regular involved socially relations a activity. Nevertheless, taboo younger there are a few of the ado- frequencies lescent who have males homosexual per of 7 or more Male in the Human Behavior Martin, Sexual eroy & one ranged from had Earlier estimates (1948). at 616-622. Id. per cent. per cent homo- bill on reform current of Britain’s sponsors 25 is *11 male in that one indicated sexuality have large group a so To label in Britain.2 homosexual saying to be tantamount aliens’ would ‘excludable Michelangelo, Yinci, da Leonardo Sappho, were Shakespeare, even perhaps Gide, Andre deemed unfit would be again, life to to they come definition so broad a Indeed, to our shores.3 visit of a few members than comprise more might well 497-498. 488, 363 F. 2d legislative bodies.” bor- Congress from whom Service, Health Public Rep. (H. R. personality” “psychopathic rowed the term 46-47) Sess., 2d admits Cong., 1365, 82d No. Id., 46. “vague and indefinite.”
term is frequencies run to 15 maximum week, 26 and 30 the and between averag- By years age is per of the most active individual week. ing only per 5.0 week. frequencies of homo- single, populations, “For mean active per steadily once or from near . . . rise more less
sexual contacts boys nearly . . younger as often . for the adolescent twice week ... They ages stand above once of 31 and 35. for males between age Kinsey, the Human through 50.” Sexual Behavior in a week (1948). 259-261 Male Prostitution Report, on Offenses and Homosexual Committee (1957). 3Sigmund wrote 1935: Freud assuredly advantage, nothing
“Homosexuality but it is to be no of, vice, degradation, it cannot be as an no no classified ashamed pro- illness; it to be a of the sexual function we consider variation development. Many highly a certain arrest sexual duced modern times have been homo- respectable individuals of ancient and greatest among (Plato, sexuals, them Michel- several of men Vinci, etc.). great injustice persecute is a angelo, da It Leonardo cruelty you homosexuality crime, too. If do not believe as Ruitenbeek, of Havelock Ellis.” The Problem me, the books read Society (1963). in Modem Homosexuality If we are to hold, apparently Court does, that any acts homosexuality suffice deport the alien, whether they not part of a fabric antisocial then behavior, we face a question serious of due process. By that person construction a is judged by a standard is almost incapable of definition. I have already quoted from clinical experts to .show what a range wide the term “psychopathic personality” has. Another expert4 classifies such a person under three headings:
Acting: (1) inability to withstand tedium, (2) lack of a sense responsibility, (3) a tendency to up” “blow under (4) pressure, maladjustment to law and order, and (5) recidivism.
Feeling: they to (1) tend be emotionally deficient, narcissistic, callous, inconsiderate, and unremorseful, gen- erally projecting on blame (2) others, have hair-trigger *12 emotions, exaggerated display of emotion, be irritable and impulsive, (3) be amoral (socially and sexually) and (4) worry, but do nothing about it.
Thinking: they display (1) defective judgment, living for the present rather than for the future, and (2) inabil- ity profit to from e., experience, they i. are able to realize the consequences intelligently, but not to evaluate them.
We held in Jordan v. De George,
4 Caldwell, Constitutional Psychopathic State (Psychopathic Per sonality) Studies of Soldiers in the Army, U. S. Psycho J. Crim. pathology (1941). 171-172 5See Lindman McIntyre, & The Mentally Disabled and the Law (1961). or exile. to banishment equivalent is the Deportation Though 10. 6, Phelan, S. 333 U. Tan v. Fong Haw The may be. practically it technically criminal, not resident to the extended we have so severe is penalty Yang Sung v. Wong process. of due protection the alien deportation from apart Even 33. McGrath, S. 339 U. of delegations at those suspicion look with cases, we the staff administrative allow to the as broad so power See Watkins policy. fundamental formulate power to Dulles, v. 203-205; Kent 178, S. States, 354 U. United v. protecting were case we the Watkins In 116. S. 357 U. Kent case In the rights. Amendment First important important an travel, right protecting we were of meaning “liberty” within a person’s of ingredient aspect an here also with We deal Amendment. the Fifth They process. of due “liberty” requirements and the as to fore sufficiently clear be the standard demand pro be may entrapped otherwise warn those per “Psychopathic to conform. opportunity vide full more hardly to be vague broad sonality” is so question this Court seeks avoid epithet. than an only being relates applied the standard saying that not to entry, to his prior had done petitioner to what question least But conduct. postentry half postentry to his conduct. related ing petitioner this (a) deportability § under issue Moreover, Nationality of 1952 on Act turns Immigration and psychopathic person- “afflicted whether *13 hearing a he is entitled to this 1 think ality.” On requirement of due the statute and the satisfy both process. reported: psychiatrist
One examination of Mr. psychiatric “On Boutilier, no indication of trend or delusional hallu- there cinatory phenomena. psychotic. He is not From psychosexual he account, problem own has is
but beginning treatment for this disorder. Diag- I nostically, would him consider as having a Char- acter Neurosis, believe that the prognosis in therapy is reasonably good and do not think he represents any risk of decompensation a dependent into psy- chotic reaction nor any potential for frank criminal activity.”
Another submitted a long report ending as follows: patient’s
“The present difficulties obviously weigh very heavily upon him. He as if feels he has made his life in this country and is deeply disturbed at the prospect being cut off from the life he has created for himself. He talks frankly about himself. What emerged out of the interview was a picture not of a psychopath but that of a dependent, immature young man with a conscience, an awareness of the feelings of others and a sense of personal honesty. His sexual structure still appears fluid and immature so that he moves from homosexual to heterosexual interests as well as abstinence with almost equal facility. His homosexual orientation seems second- ary to a very constricted, dependent personality pattern rather than occurring in the context of a psychopathic personality. My own feeling is that his own need to fit in and be accepted great is so that it far surpasses his need for sex in any form.
“I do not believe that Mr. Boutilier is a psycho- path.” In light of these statements, I say cannot it has
been determined was “afflicted” in the statutory sense either at the time of entry present. “Afflicted” possessed means or dominated by. Occa- sional acts would not seem sufficient. “Afflicted” means a way of life, an pattern accustomed of conduct. What- ever disagreement there as to the meaning of “psycho- *14 134 to been understood generally has it personality,”
pathic conflict- of behavior lifelong pattern consistent, ato refer guilt. accompanying without norms social with ing was character of that Nothing 29.6 supra, at Cleckley, 6 term the Congress intended good indication There only those to refer personality” psychopathic with “afflicted pathological or defects “developmental demonstrating individuals lifelong patterns by structure manifested] personality the in trends Report Service, Health Public S. .” U. . . . or behavior of action Admin. Cong. & S. Code 2379, U. R. of H. Aspects on Medical persons afflicted of exclusion provision (1952). The News Act, of the section replaced personality psychopathic with constitutional “persons of exclusion for the providing 875, 39 Stat. keep “to was clause purpose of that inferiority.” The psychopathic which traits medical ‘persons who have is, blood,’ that out 'tainted were traits if those States the United people of harm would were traits possessing those country, or if those in this introduced ” unfortunately so afflicted.’ are country who this in to those added States, Systems of the United Naturalization Immigration and The Senate (1950). The Sess., Cong., 2d 1515, 81st Rep. No. S. investigation making an charged with had been which subcommittee with persons exclusion “the concluded that immigration laws -the out keeping inferiority’ aimed psychopathic ‘constitutional aberration, those propensity to mental country with aliens of the cases, as indicated becoming mental likelihood an inherent with purpose of “the It concluded history.” Ibid. by their case infe psychopathic constitutional ‘persons with against provision changing term by adequately served riority’ be more will classes that the personality,' and psychopathic with ‘persons afflicted homosexuals enlarged include be mentally should defectives accompanied Report 1515 Senate Id., at 345. perverts.” sex other among aliens “[a]liens excludable included 3455, which bill Senate are homo personality,” and psychopathic “[a]liens with afflicted 716, became S. redrafted bill was perverts.” sex or sexuals 2379; the material being R.H. counterpart in the House its response to the In in S. 3455. the same remained provisions Public provisions, the new opinion on its request for House’s that- noted Health Service person- psychopathic group of within classified conditions
“The They charac- personality. of the effect, disorders are, in alities pathological trends or defects developmental terized patterns of action by lifelong manifest personality structure *15 shown exist entry. at time of that fact he presently has a problem, psychiatrist as one said, does not mean he is or was necessarily “afflicted” with homosexuality. His conduct is, of course, evidence ma- terial to the issue. But the judgment informed experts of to make needed the required finding. We cruelly muti- late the Act when we hold otherwise. For we make the word the bureaucrat supreme, when it was the exper- tise of the doctors and psychiatrists on which Congress wanted the administrative action to be dependent. behavior, rather than mental or symptoms. emotional Individuals such may with a disorder manifest a disturbance per- of intrinsic sonality patterns, exaggerated personality trends, persons or are ill primarily in society terms of prevailing culture. The latter sociopathic or reactions are frequently symptomatic of a severe underlying psychosis neurosis or frequently include groups those suffering individuals from or addiction sexual deviation.” U. S. Cong. Code & (1952). Admin. News 1700 setting The letter forth the views of the Public Health Service went on to say, respect to the exclusion of “homosexuals or sex perverts”: persons “Ordinarily, suffering from in sexuality disturbances are included within the 'psychopathic classification of personality with pathologic sexuality.’ This classification will specify types such pathologic behavior as homosexuality or perversion sexual which includes sadism, sexual fetishism, transvestism, pedophilia, Id., etc.” at 1701. The bill finally which was enacted, provided H. 5678, R. exclusion “[ajliens psychopathic afflicted with personality,” but provide did not for exclusion of aliens who are homosexuals sex perverts, predecessors. as had its The House Report, Rep. H. R. No. 1365, accompanied which incorporated the bill the full report of the Public (H. Health Service Rep. 1365, R. No. Cong., 82d Sess., 2d 46-48) and indicated “recommendations contained in report the . . . Id., have been followed.” at 48. legislative This history indicates the term “afflicted with psychopathic personality” was used in a medical sense and was meant to refer lifelong patterns of action that pathologic symptomatic grave underlying psychosis. neurosis or Homo- sexuality and sex perversion, as a subclass, are limited to the same afflictions.