The Immigration Closet

ED: This is BackStory. I’m Ed Ayers. In the flag-waving fervor of World War II, the Supreme Court came to the defense of Americans who refused to pledge allegiance. The court’s logic?

FEMALE SPEAKER: When we start punishing dissenters for such mild behavior as refusing to salute, we wind up eliminating the dissenters themselves.

ED: Over the years, group after group has laid claim to the rights spelled out by the founders. Some of those claims have been more of a stretch than others. Take, for instance, big tobacco’s attempt to prevent the creation of non-smoking sections.

FEMALE SPEAKER: The smokers, because of the way smoke wafts, are asked to sit-in the back of the bus, which is, of course, too tantalizing of an image for the tobacco industry to simply let pass by.

ED: Coming up on BackStory, a history of rights claims in America. Stick around.

PETER: Major funding for BackStory is provided by an anonymous donor, the University of Virginia, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations.

ED: From the Virginia Foundation for the Humanities, this is BackStory, with the American Backstory hosts.

BRIAN: Welcome to BackStory. I’m Brian Balogh.

PETER: I’m Peter Onuf.

ED: And I’m Ed Ayers. Our show begins today with a love story. The narrator– a man named Tony Sullivan. The scene, Los Angeles, 1971.

TONY SULLIVAN: I met Richard Adams in a bar called The Closet, appropriately enough, on Sunset Boulevard. I was traveling through the United States as a tourist, and was on my way to England, and then back to Australia.

ED: The very next day, Sullivan and Adams took a road trip. It would alter the course of their lives forever.

TONY SULLIVAN: He took me for a drive along the Pacific Coast Highway. And I remember on that journey, I whistled the theme for Black Orpheus, where Orpheus sings up the sun in the morning. And by the end of that night, we were much more involved. And I stayed for several months, before going on to England.

ED: Sullivan soon returned to LA, and moved in with Adams. They were in love, and wanted to be together. But this was the 1970s, and so that was easier said than done.

TONY SULLIVAN: The immigration laws did not allow gay and lesbian people into the country as tourists, did not allow them to get green cards. And if they had been naturalized, would strip them of naturalization, and expel them from the country.

PETER: For a few years, Sullivan played a game of cat and mouse with border agents, slipping in and out of Mexico to renew his tourist visa, and worried he might one day be deported back to Australia. Then, in the spring of 1975, Sullivan and Adams got some extraordinary news. The county clerk in Boulder, Colorado had started issuing marriage licenses to gay couples. They quickly realized that this could be their ticket to a green card for Sullivan.

ED: And so the couple flew to Boulder, and got a marriage license– one of six that this clerk would issue before state officials shut her down. Adams and Sullivan filled out the paperwork, and were married on April 21, 1975, in a hallway outside the clerk’s office.

TONY SULLIVAN: Richard petitioned, the very same day, for the immigration to grant me residence as the spouse of a US citizen. And the immigration, in the following November, responded with a decision, which said, you have failed to establish a bona fide, a marital relationship between two faggots– that’s their words.

BRIAN: I God– what was your reaction?

TONY SULLIVAN: First of all, disbelief. I rang the immigration director’s office, and confirmed that, indeed, it was a real letter from the immigration, not some fraud. And we decided to release it to the press.

ED: Outraged by their treatment, Adams and Sullivan decided to sue the government. Never before had a gay couple sought to have their marriage rights upheld in an American court of law. And Sullivan said he knew their fight would be as political as it was personal.

TONY SULLIVAN: I wanted to stay with Richard. We were standing up against an injustice. But our goal was to be able to stay together, and also, we had realized, there was an injustice. And yes, we did want to correct the injustice that existed for all gay and lesbian people.

PETER: But court after court rejected their claims. And after 10 years, their case ended in a federal appeals court. Writing for a two-one majority, a judge there noted that separating long time partners could cause, and I’m quoting, “personal distress and emotional hurt.” Nevertheless, he ruled against the couple on a narrow reading of immigration policy. That judge’s name? Anthony M. Kennedy.

ED: That’s right, the same Anthony Kennedy who would go on to become a Supreme Court justice, and the author of the decision that overturned the Defense of Marriage Act. Kennedy’s ruling basically adopted the same logic that Sullivan and Adams had advanced decades earlier. Here he is, in 2013, reading his decision.

ANTHONY KENNEDY: No legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection, and treating those persons as living in marriage as less respected than others, section three of DOMA is in violation of the Fifth Amendment. This opinion–

ED: Richard Adams didn’t live to hear that news. He died of cancer a few months earlier, with Tony Sullivan at his side, in the LA apartment where they’d always lived.

PETER: When they lost their immigration appeal in 1985, Sullivan and Adams left the country. But they soon snuck home, living on in what they called the immigration closet. Sullivan worked under the table, avoided traveling on airplanes, and never collected Social Security. But today, at the age of 73, and armed with a ruling from the judge who once rebuffed him, Sullivan is once more asking for a green card. This time, as the widower of an American citizen.

TONY SULLIVAN: In the last couple days of his life, we had a couple of very important conversations. One about how much we loved each other, and one about the way that the fight for marriage equality was going. And there was other conversation I had, and that is, I said, Richard, we won. We won– they never managed to separate us.

And he looked at me, and he thought about it. And he said, you’re right. We won.

ED: Any day now, the Supreme Court is expected to weigh in once more on gay marriage. Supporters of one side in this latest battle say it’s the right of states and their citizens to decide, through the democratic process, who can and cannot marry. The other side, meanwhile, is hoping that Kennedy and the rest of the court recognize the right of gay and lesbian couples to be treated the same as everybody else.

TONY SULLIVAN: The fact is that we take no rights away from anyone. All we ask for is an expansion of rights to ourselves. And it’s a right that we deserve as human beings.

PETER: Tony Sullivan may be Australian by birth, but his appeal for an expansion of rights to a group with whom he identifies taps into a very long tradition here in America. For the rest of the hour today on BackStory, we’re going to be exploring that tradition. We’ve got stories about a range of struggles over rights– struggles that involve slavery, public education, even cigarette smoking. As we’ll hear, resolving these skirmishes has often meant weighing one set of rights claims against another.