Boutilier v. Immigration and Naturalization Service

Decided on May 22, 1967; 387 US 118

Supreme Court rules that resident homosexuals have "psychopathic"
personalities and can be barred from US citizenship


A. Issues Discussed: Governmental Authority (Immigration), civil rights, deportation, 1st and 5th Amendments

B. Legal Questions Presented:

1. Does the provision of the Immigration and Nationality Act that makes aliens "afflicted with psychopathic personality" inadmissible to the United States include homosexuals?

2. If so, is the provision constitutional?


A. Background:

Petitioner Boutilier, a Canadian citizen, was admitted to the United States in 1955. In 1963 he applied for US citizenship, and submitted to the Naturalization Examiner an affidavit in which he admitted that he had been arrested in New York in 1959, on a charge of sodomy, which was reduced to simple assault and later dismissed.

In 1964, petitioner, at the request of the Government, submitted another affidavit which revealed the full history of his sexual relations, including homosexual behavior.  Since 1959 petitioner had shared an apartment with a man whom he shared homosexual relations with.

The 1964 affidavit was submitted to the Public Health Service for its opinion as to whether petitioner was excludable at the time of his entry into the US, under Section 212(a)(4) of the Immigration and Nationality Act of 1952, which excludes those who are "afflicted with [a] psychopathic personality." The Public Health Service stated that in the opinion of the subscribing physicians, petitioner "was afflicted with a class A condition, namely, psychopathic personality, sexual deviate" at the time of his US admission.

Deportation proceedings were then instituted.  The Special Inquiry Officer held that the term "psychopathic personality," as used by Congress in Section 212(a)(4), was a "term of art" intended to exclude homosexuals from entry into the United States. The officer further found that the term was not void for vagueness and therefore did not violate the Fifth Amendment's Due Process Clause. Petitioner's appeal from the finding of the Special Inquiry Officer was dismissed by the Board of Immigration Appeals, as was his petition for review in the Court of Appeals.  Petitioner then sought review in the US Supreme Court, and the high court granted certiorari.

B. Counsel of Record:
Opposing Side
Blanch Freedman argued the cause for petitioner. With her on the briefs was Robert Brown.
Nathan Lewin argued the cause for respondent. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson, and Philip R. Monahan.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
David Carliner, Nanette Dembitz, and Alan H. Levine filed a brief for the American Civil Liberties Union as amicus curiae, urging reversal.

A brief of amicus curiae, urging reversal was filed by the Homosexual Law Reform Society of America.
No amici curiae briefs were filed on behalf of Respondent.



The legislative history of the Act indicates beyond a shadow of a doubt that the Congress intended the phrase "psychopathic personality" to include homosexuals such as petitioner.

Petitioner stresses that only persons afflicted with psychopathic personality are excludable. This, he says, is "a condition, physical or psychiatric, which may be manifested in different ways, including sexual behavior." Petitioner's contention must fall by his own admissions. For over six years prior to his entry petitioner admittedly followed a continued course of homosexual conduct. The Public Health Service doctors found and certified that at the time of his entry petitioner 'was afflicted with a class A condition, namely, psychopathic personality, sexual deviate...' The Government clearly established that petitioner was a homosexual at entry. Having substantial support in the record, we do not now disturb that finding, especially since petitioner admitted being a homosexual at the time of his entry. The existence of this condition over a continuous and uninterrupted period prior to and at the time of petitioner's entry clearly supports the ultimate finding upon which the order of deportation was based...

The petitioner is not being deported for conduct engaged in after his entry into the United States, but rather for characteristics he possessed at the time of his entry. Here, when petitioner first presented himself at our border for entrance, he was already afflicted with homosexuality...

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... The constitutional requirement of fair warning has no applicability to standards such as are laid down in Section 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 exclude those who possess those characteristics which Congress has forbidden. Here Congress commanded that homosexuals not be allowed to enter. The petitioner was found to have that characteristic and was ordered deported. The basis of the deportation order was his affliction for a long period of time prior to entry, i.e., six and one-half years before his entry... Affirmed."

Justice Vote: 3 Pro vs. 6 Con

  • Clark, T.  Con (Wrote majority opinion)
  • Stewart, P. Con (Joined majority opinion)
  • Black, H. Con (Joined majority opinion)
  • Warren, E. Con (Joined majority opinion)
  • Harlan, J. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Fortas, A. Pro (Joined Douglas' dissenting opinion)

The ACLU filed as amicus urging reversal; the US Supreme Court affirmed the lower courts' ruling in a 6-3 vote, giving the ACLU an apparent loss.