The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
Petitioner, a 24-year old native and citizen of Cuba, was lawfully admitted into the United States as a permanent resident on December 3, 1960. On May 6, 1969, he filed his Petition for Naturalization pursuant to 8 U.S.C. § 1427. The Immigration and Naturalization Service ("the Service") opposes his petition on the ground that since he has been a homosexual he has not sustained his burden of establishing that within the five years immediately preceding the date of filing his petition he "has been and still is a person of good moral character * * *" within the meaning of 8 U.S.C. § 1427(a).
Petitioner was a homosexual in Cuba and made this fact known to the Service authorities when he entered this country at the age of 14. The Medical Director and Chief of the Psychiatry Department of the United States Public Health Service Hospital in Staten Island, however, did not certify him as a "sexual deviate" or "psychopathic personality" under 8 U.S.C. § 1182(a)(4).
Since petitioner validly entered the country without deceit, the Service concedes that he is not now deportable.
After entering the United States in 1960 petitioner engaged in homosexual activities with several consenting adults. On the average he has been the active or passive partner in such activities about once a month, but the last occasion was about six months before his preliminary examinations by the Service upon his Petition for Naturalization. He has never engaged in homosexual activities with minors; all of his sexual acts have taken place in privacy, behind locked doors in hotel rooms. He has never engaged in such activity in any park, theatre, subway station, or any other public or semi-public place. He is unmarried and lives with his mother. There is no suggestion that his homosexual activities could harm a marriage relationship.
Petitioner has never been arrested. Though he has not applied for psychiatric treatment in the United States, he did unsuccessfully undergo therapy in Cuba. He does not drink; he does not frequent bars; he does not use narcotics. The Service stipulates that he has never been in trouble and, as his employer testified, he is highly regarded at his place of employment.
"Good moral character" is partially defined in 8 U.S.C. § 1101(f), which lists eight classes of conduct that preclude a finding of good moral character if engaged in during the five-year period immediately preceding the Naturalization Petition. These categories -- e.g., habitual drunkard; adulterer; perjurer; convicted murderer (even if the conviction occurred before the five-year period); a person who within the five-year period was confined in a penal institution for 180 days or more; etc. -- do not include petitioner's admitted conduct, but § 1101(f) is not definitive and so provides by its own terms:
"The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not [within the five-year statutory period] of good moral character."
In determining good moral character,
"the test is not the personal moral principles of the individual judge or court before whom the applicant may come; the decision is to be based upon what he or it believes to be the ethical standards current at the time. United States ex rel. Iorio v. Day, 2 Cir., 34 F.2d 920, 921; Repouille v. United States, 2 Cir., 165 F.2d 152, 153; United States v. Francioso, 2 Cir., 164 F.2d 163; Schmidt v. United States, 2 Cir., 177 F.2d 450, 451, 452; Johnson v. United States, 2 Cir., 186 F.2d 588, 590, 22 A.L.R. 2d 240." (Posusta v. United States, 285 F.2d 533 at 535 (2d Cir. 1961) (per L. Hand, C.J.))
If the criterion were our own personal moral principles, we would deny the petition, subscribing as we personally do to the general "revulsion" or "moral conviction or instinctive feeling" against homosexuality. E.g., Report of the Committee on Homosexual Offenses and Prostitution Presented to Parliament by the Secretary of State for the Home Department and the Secretary of State for Scotland by Command of her Majesty (Sept. 1957 Cmmd. 247) (The Wolfenden Report) § B(54); see also Dew v. Halaby, 115 U.S. App. D.C. 171, 317 F.2d 582, 587 & n. 10 (1963), cert. granted, 376 U.S. 904, 84 S. Ct. 671, 11 L. Ed. 2d 605, cert. dismissed, 379 U.S. 951, 85 S. Ct. 452, 13 L. Ed. 2d 550 (1964); H v. H, 59 N.J. Super. 227, 237, 157 A. 2d 721, 727 (1959) ("Few behavioral deviations are more offensive to American mores than is homosexuality."); In re Petition for Naturalization of Olga Schmidt, 56 Misc. 2d 456, 289 N.Y.S. 2d 89, 92 (Sup. Ct. 1968) (petitioner's admitted homosexual activity is not "in the court's opinion, consistent with good moral character as the 'ordinary man or woman' sees it."); cf. Note, Private Consensual Homosexual Behavior: The Crime and Its Enforcement, 70 Yale L.J. 623, 627 & n. 34 (1951). But see, Note, Government-Created Employment Disabilities of the Homosexual, 82 Harv. L. Rev. 1738, 1744 n. 25 (1969) (statistical knowledge of public attitudes towards homosexuality is extremely meager).
The test of "good moral character" prescribed by Judge Hand in Posusta was recognized by him as one that is "incapable of exact definition," p. 535, and in an earlier opinion he had confirmed that "good moral character" does not necessarily turn upon a popular vote.
"Even though we could take a poll, it would not be enough merely to count heads, without any appraisal of the voters. A majority of the votes of those in prisons and brothels, for instance, ought scarcely to outweigh the votes of accredited churchgoers. Nor can we see any reason to suppose that the opinion of clergymen would be a more reliable estimate than our own. The situation is one in which to proceed by any available method would not be more likely to satisfy the impalpable standard, deliberately chosen, than that we adopted in the foregoing cases: that is, to resort to our own conjecture, fallible as we recognize it to be." Schmidt v. United States, 177 F.2d 450 at 451 (2d Cir. 1949).
We believe that the most important factor to be considered is whether the challenged conduct is public or private in nature. If it is public or if it involves a large number of other persons, it may pose a threat to the community. If, on the other hand, it is entirely private, the likelihood of harm to others is minimal and any effort to regulate or penalize the conduct may lead to an unjustified invasion of the individual's constitutional rights. For instance, it is now established that official inquiry into a person's private sexual habits does violence to his constitutionally protected zone of privacy. Griswold v. Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). Just as the state may not search "the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives," Griswold, supra at 485, 85 S. Ct. at 1682, the state may not prohibit a person from possessing obscene matter in his home, because of the "right to be free * * from unwarranted governmental intrusion into one's privacy." Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247-1248, 22 L. Ed. 2d 542 (1969). See also, Powell v. Texas, 392 U.S. 514, 532, 88 S. Ct. 2145, 2154, 20 L. Ed. 2d 1254 (1968) (state may use criminal laws to punish for public intoxication, since it had not attempted "to regulate appellant's behavior in the privacy of his own home.") (Marshall, J., concurring); United States v. Dellapia, 433 F.2d 1252 (2d Cir. 1970).
In short, private conduct which is not harmful to others, even though it may violate the personal moral code of most of us, does not violate public morality which is the only proper concern of § 1427. To hold otherwise would be to encourage governmental inquisition into an applicant's purely personal private temperament and habits (e.g., whether he harbors hate, malice or impure thoughts; whether he has ever engaged in ...