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Last week’s historic Supreme Court decision in Obergefell v. Hodges, compelling all states to recognize same-sex marriages, was celebrated in Louisville’s Highlands yesterday, with a festive blocking of Bardstown Road for the evening, to allow ten gay and lesbian couples to ceremoniously and legally tie the knot.
Younger celebrants may not know of the relatively recent history of the elimination of anti-gay laws in Louisville. Until the 1992 Kentucky Supreme Court case of Commonwealth vs. Wasson, it was a crime in this state for same-sex partners to have consensual sexual relations, and, until 1997, it was a crime in Louisville to dress in drag.
To understand Louisville’s weird interest in outlawing cross-dressing, we need to take a little trip down memory lane, to The Saga Of Shufflin’ Sam.
Back in 1959, an old Black man named Sam Thompson was waiting for a bus on a Saturday evening, at the Liberty End Café in Louisville. Two White policemen came into the café and observed Sam "out there on the floor dancing by himself." The officers accosted Thompson and asked him what he was doing, "and he said he was waiting on a bus." The officers then arrested him for loitering, and took him outside. Thompson remonstrated - he "was very argumentative - he argued with us back and forth, and so then we placed a disorderly conduct charge on him." That was the entire record that the prosecution put on at the trial in Louisville’s old Police Court, except for a record showing a total of 54 previous arrests. Thompson was convicted and sentenced to pay two $10 fines. Case closed.
Not quite. Louisville real estate attorney Louis Lusky, from his office in the old Hoffman Building (now, the William O. Cowger Parking Garage at 4th & Market Streets), read about Thompson’s plight and volunteered to appeal his case for him. Problem was, under the court rules of the day, fines of only $20 or more could be appealed to Circuit Court. No court in Kentucky had jurisdiction to hear an appeal of two $10 fines for loitering and disorderly conduct.
Lusky, who had clerked for U.S. Supreme Court Justice Harlan Fiske Stone (and really didn’t like real estate law), appealed Sam Thompson’s case to the United States Supreme Court. On January 11, 1960, the Supreme Court heard oral arguments in the case of Sam Thompson vs. City of Louisville, et al., 362 U.S. 199 (1960), on certiorari to the Louisville City Police Court.
Representing Louisville was Herman Frick, a young attorney from the City Law Department. Frick didn’t get two sentences into his oral defense of the City’s case, when Justice Hugo Black interrupted: “Mr. Frick, it says here Mr. Thompson was in the café, ‘doing a shuffle.’ Just what is a ‘shuffle’?”
Frick explained that Louisville’s Police Court did not have any written transcripts, and that he had no idea what the arresting officers were referring to. “Well,” inquired Justice Black, “could you demonstrate a ‘shuffle’ for the court?”
Frick sheepishly responded: “With all due respect, Mr. Justice, I don’t believe the issue here before the court is whether or not the counsel for the City of Louisville can perform a ‘shuffle.”
“Oh, yes it is, Mr. Frick, oh, yes it is!” replied Justice Black.
Justice Hugo Black, former member of Alabama Ku Klux Klan, and former City Attorney for Birmingham, wrote the opinion for the court. In a 9-0 unanimous ruling, the Supreme Court held that it violates due process to convict a person of an offense when there is no evidence of his guilt. It is one of the rare instances of the Supreme Court's granting certiorari to review a decision of a court so insignificant (the Police Court of Louisville, Kentucky) that state law does not provide any mechanism for appeals from its judgments.
Louis Lusky became famous. He wrote an article for the Yale Law Review, “The Saga of Shufflin’ Sam,” and eventually became a tenured professor at Columbia Law School. Herman Frick came back to Louisville, and, when the Republicans took control of City Hall in 1961, went into private practice. In the early 1970’s, he returned to the City Law Department for a couple of years, and entertained young lawyers with his scary tale of his dance recital with the Supremes.
The old Louisville disorderly conduct ordinance simply said: “Whoever shall be found guilty of disorderly conduct in the city of Louisville shall be fined not less than five dollars nor more than fifty dollars, or imprisoned in the city workhouse not exceeding thirty days…” It was felt that a cop would surely know disorderly conduct when he saw it.
Sometime in the mid 1960’s, the Board of Aldermen (precursors to our Metro Council), decided to re-write the D.C. ordinance and include a laundry list of conducts considered to be disorderly. Included among sundry criminal activities were: spitting on the sidewalk, using the Lord’s name in vain, throwing itching powder on another person, and “dressing in the garb of the opposite sex, so as to counterfeit one’s true sex.”
This silly and blatantly unconstitutional law remained on the books until 1997, when the Board of Aldermen amended the wording to parallel state law. Since then, the Metro Council has not resisted the temptation to monkey with the ordinance; outlawing such horrors as throwing snowballs at trees, remaining in a college or university without a legitimate reason for being there, and sleeping under any bridge (but only after dark). And, once again, “No person over 14 years of age shall assume a mask, false face, cover or partial cover, or other apparel with intent to conceal his identity or counterfeit another with the intent to prevent disclosure or recognition in any public street or other public place.”
So, guys, you can still dress up like Judy Garland, ruby slippers and all; just as long as you don’t wear a mask or throw snowballs at trees. You can sleep under bridges during the daytime, use the Lord’s name in vain while spitting on the sidewalk; but you risk getting busted if your professor decides your third attempt at College Algebra 101 is not legitimate. And, although the law is no longer clear, you might want to leave the itching powder alone.
EDITOR’S NOTE: The writer served as Special Counsel to the old Louisville Board of Aldermen in 1997, and suggested to the Board that the city’s Disorderly Conduct ordinance needed to be re-written, to make it constitutionally solid. The re-written law was passed by the Board unanimously. There was no floor debate, and no discussion of cross-dressing, using the Lord’s name in vain, or of itching powder.