Alito, J., dissenting
public bathroom).
In 1964 and for many years thereafter, homosexuals were barred from the military. See, e.g., Army Reg. 635–89, §I(2)(a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the Army in any capacity, and their prompt separation is mandatory”); Army Reg. 600–443, §I(2) (April 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515 (repealing 10 U. S. C. §654, which required members of the Armed Forces to be separated for engaging in homosexual conduct).
Homosexuals were also excluded from entry into the United States. The Immigration and Nationality Act of 1952 (INA) excluded aliens “afflicted with psychopathic personality.” 8 U. S. C. §1182(a)(4) (1964 ed.). In Boutilier v. INS, 387 U. S. 118, 120–123 (1967), this Court, relying on the INA’s legislative history, interpreted that term to encompass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”[1] But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the INA’s express prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimination because of sexual orientation were viewed as two entirely different concepts.
To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our
- ↑ Justices Douglas and Fortas thought that a homosexual is merely “one, who by some freak, is the product of an arrested development.” Boutilier, 387 U. S., at 127 (Douglas, J., dissenting); see also id., at 125 (Brennan, J., dissenting) (based on lower court dissent).
