Last week, the first verbal arguments on the legality of same-sex marriage were presented by lawyers addressing the U.S. Supreme Court in what has attracted nationwide attention from conservatives and liberals alike. Even as we begin what may well be the next to last push for true gay equality (anti-discrimination in the workplace and elsewhere is still to be won), it is with a great deal of pride that we remember a little known case that set us on our current path to victory.
It was 1953 in the city of Los Angeles when Dale Jennings and Don Slater created a new magazine titled one. It was a revolutionary concept for the time, a “magazine for homosexuals” that featured insightful literary pieces, defiant editorials, and fictional stories of idyllic same-sex relationships. The black-and-white magazine was sold in the few LA gay bars that existed at the time, costing a quarter, the same price as a draft beer. Ironically, that issue’s first cover story was titled “Homosexual Marriage?” one was obviously ahead of its time in many ways.
At first, Jennings and Slater operated under the public radar—no easy task in a period when the FBI’s J. Edgar Hoover was actively pursuing sexual deviants of all kinds, enforcing laws that made homosexuality illegal in all of the then-48 states. But then, in October, 1954, Jennings and Slater decided to mail copies of their magazine to subscribers across the country. The postmaster of the city of Los Angeles, a uber-conserative named Otto K. Olesen, declared that one was “obscene, lewd, lascivious and filthy.” And with that, Olesen returned every issue back to the publishers.
As it happened, a 30-year-old straight attorney named Eric Julber had written the cover story in that edition, a piece he titled “You Can’t Print It!” And though he wasn’t gay, Julber didn’t much like the idea that Olesen could censor his piece from distribution, and offered to represent Jennings, Slater and their company One, Inc. in a suit against the postmaster pro bono.
For Julber, fresh out of law school and wet behind the ears, it was a matter of principle. He rankled at the thought of government censorship. Now 90 years old and alive and well in Carmel, California, Julber once reflected to the Los Angeles Times, “I thought they had a strong case. They were not running a nightclub. They were writing a magazine. It was a very conservative magazine. It was just the subject matter — homosexuality — that made it ‘obscene.'”
At first, things did not go well for Julber and one in court. In March, 1956, U.S. District Judge Thurmond Clarke ruled that one was “non-mailable.” He cited a story in the magazine about a lesbian who chose to live with woman rather than marrying her high school sweetheart.
This was “obviously calculated to stimulate the lust of the homosexual reader,” Clarke said. Wrapping up his opinion, Clarke determined, “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.”
Unfazed, Julber appealed the case to the U.S. 9th Circuit Court of Appeals in San Francisco, but lost in a 3-0 decision handed down in February 1957. Like a wire-haired terrier on the mailman’s leg, Julber refused to drop his attack and appealed directly to the US Supreme Court.
This time, he centered his plea on whether homosexuality could be openly discussed in literature without being automatically banned as obscene. The Supreme Court sided with one, which published its reaction in the next issue.
“For the first time in American publishing history, a decision binding on every court now stands…. affirming in effect that it is in no way proper to describe a love affair between two homosexuals as constitut(ing) obscenity.” And the rest, as they say, is history.
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