DID THE FBI USE GAY BLACKMAIL AGAINST L.B.J.'S SUPREME COURT JUSTICE, ABE FORTAS?

The History News Network today has published a fascinating article, "Did the FBI Try to Blackmail Supreme Court Justice Abe Fortas?" by Marc Stein, an associate professor of history at York University,  and author of  City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945-1972 (University of Chicago Press, 2000), which I reviewed quite favorably for the Phildelphia Inquirer when it was published.

Fortas (left) was appointed to the Supreme Court in 1965 by President Lyndon B. Johnson, whose personal lawyer Fortas had been. Three years later, in 1968, LBJ tried to make Fortas Chief Justice -- but the nomination was blocked by a Republican filibuster.

Stein cites Laura Kalman's respected bio of Fortas, published by Yale University Press, as sayng, "No one who knew of Fortas’s enthusiastic heterosexuality would ever have accused him of homosexuality, but [New York Times reporter Fred] Graham and [Life magazine reporter William] Lambert were told, presumably by sources within the government who offered to ‘bootleg’ the information ‘out of the FBI’, that the FBI had a morals file on Fortas that included allegations he had once been involved in a sexual relationship with a teenage boy. Regardless of their truth, such stories were damaging.” Stein goes on to cite a number of other references in books and articles referrring to an FBI file with allegations of homosexuality against Fortas. He quotes from what purports to be a letter from the FBI's infamous Cartha DeLoach to Hoover's top deputy and boyfriend, Clyde Tolson (right) relating a visit DeLoach made to Justice Fortas to inform him of allegations of homosexuality involving him. (DeLoach was deeply involved in the FBI's COINTELPRO program and headed its media disinformation operation, was involved in the surveillance and wiretapping of Dr. Martin Luther King Jr., and was the liaison for FBI Director J. Edgar Hoover (top left) to the LBJ White House through Walter Jenkins  (lower left, at right in photo with LBJ aide Bill Moyers) -- the top LBJ aide who resigned after he was caught in a public toilet in a homosexual act.)

Stein relates how he identified the exact name of the FBI file, and tried to get access to it.. After first being told by FBI Washington headquarters that the file was only six pages long and that it wasn't worthwhile coming to Washington to examine it in the FBI archives, but that it would be photocopied and sent to him, Stein subsequently received a letter telling him the FBI file on Fortas' alleged gay conduct had curiously gone "missing."

If the file still exists and can be found, what would be its significance? Stein tries to answer that question:

"Whether or not the allegations about Fortas were true (by which I mean that they provided truthful accounts of Fortas’s sexual conduct), they will likely be of interest to historians of sexual behavior, sexual identity, and the relationship between the two. They also have the potential for influencing our understanding of national politics and sexual politics during this period, and especially the history of the FBI, the Senate, and the White House during the Johnson and Nixon administrations. As for the history of the Supreme Court, Fortas played an important role in several sex-related rulings in the 1960s, and we may want to understand the rulings and the allegations in relation to one another. In 1966 Fortas voted with narrow majorities in three obscenity rulings (Fanny Hill, Ginzburg, and Mishkin). In Ginzburg and Mishkin (which dealt in part with materials produced for the gay market), the Court upheld obscenity convictions, though Fortas later expressed regret about his votes. Then in 1967 Fortas was one of three dissenters in one of the Court’s first gay rights cases, Boutilier v. the INS, which upheld the deportation of a Canadian “homosexual” on the grounds that under U.S. immigration law homosexuals were excludable and deportable because they were “afflicted with psychopathic personality.” In the oral arguments on Boutilier, Fortas aggressively questioned the government lawyer on the INS claim that homosexuality was intrinsically psychopathological. Two months after the Court announced its ruling in Boutilier, the FBI’s DeLoach reportedly visited Fortas (if the Maloney documents are to be believed). Did Fortas’s sexual history influence his votes? Can the same be said of the other justices, many of whom extolled the virtues of family, heterosexuality, marriage, and procreation in decisions about birth control, obscenity, and interracial marriage in this period? Did Fortas’s votes in these and other cases lead to the FBI’s visit and to the FBI’s implied threats?"

The way in which closet queen and FBI  Director Hoover (left, with boyfriend Tolson)  rooted out information about homosexuals in government has been endlessly documented iin numerous histories of the FBI. So, too, has Hoover's use of FBI files to protect what he felt to be the bureau's interrests, as well as his own. And Cartha DeLoach was a top Hoover loyalist (he eventually became the Bureau's number three man under Hoover) who, the FBI histories tell us, was frequently used by Hoover to visit highly-placed political  personalities hostile to the FBI (like Sen. Albert Gore Sr., --right--father of the vice president). So it's hardly implausible that Hoover could have sent DeLoach to see Justice Fortas and, in the velvet-gloved fashion indicated in DeLoach's account to Tolson, let Fortas know the FBI had the goods on him. Even if the allegations against Fortas weren't true, such was the FBI's power in those crushingly homophobic days that the threat of a smear alone would have scared the pants off most people (no pun intended.)

But, as the principals in this story are no longer living, it won't go much further unless the FBI suddenly "finds" the missing Fortas file. Of course, Stein's account raises another interesting question: how did that Fortas file that Stein was told was available for photocopying suddenly vanish? You can read Stein's entire article by clicking here.

(For more information the FBI's Cartha Deloach, See DeLoach's testimony before the Senate's Church Committee on Intelligence, Volume 6., December 3, 1975, and the final Church Committee report. )