The Case of the Elusive Euphemism

When he filled out the application forms for U.S. citizenship in 1963, Canadian-born Clive M. Boutilier, 32, reported that he had once been arrested for a homosexual act, but the charges were dismissed. Pressed for more details, the Manhattan building-maintenance man, who had been living in the U.S. for eight years, revealed his assorted relations with both sexes since the age of 14. As a result, Boutilier was ordered deported. Reason: the 1952 Immigration Act bars any alien with a "psychopathic personality."

Using psychiatrists' statements that he has no such thing, Boutilier took his case to the U.S. Court of Appeals for the Second Circuit. Last week that court, in a 2-1 decision, rejected Boutilier's appeal on the ground that "psychopathic personality" legally means what Congress was too circumspect to say, "No homosexuals allowed."

Judge Irving R. Kaufman traced the euphemism to the Public Health Service, which devised it as an admittedly "vague and indefinite" rubric covering Congress' intent to bar "homosexuals and other sex perverts." However medically imprecise, said Kaufman, the phrase became "a legal term of art" that clearly barred Boutilier as "a homosexual long before leaving Canada," and authorized his deportation even if he had lived "a life of impeccable morality" in the U.S. Ruled Kaufman: "It is not our function to sit in judgment on Congress' wisdom in enacting the law." In dissent, Judge Leonard P. Moore called "psychopathic personality" an unconstitutionally vague term that immigration officials blindly applied to Boutilier without even giving him a medical examination.

Kaufman's opinion is in direct conflict with two decisions by the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which has ruled that section of the immigration law "void for vagueness" in its application to homosexuals. Since the Supreme Court generally agrees to referee circuit conflicts, it may now take its own reading of the elusive euphemism.

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