Episode 17 — Herb Selwyn

Herb Selwyn, 1943. Credit: Courtesy of the Selwyn Family

Episode Notes

Attorney Herb Selwyn was the Zelig of straight allies.  He was born in 1925 and raised in West Hollywood, California.  He attended UCLA before and after World War II and during the war served in the Army Air Corps in England, France, and Germany.  After graduating from UCLA, he went on to law school at USC, later married and had four children.  

Herb Selwyn in his Army Air Corps uniform, 1943. Credit: Courtesy of the Selwyn family

Herb’s consistent support and defense of gay people, which began during his service in World War II, landed him in the middle of gay rights history over and over again.  From a guest speaker at an early Mattachine meeting and his participation in Dr. Evelyn Hooker’s landmark study to defending the famous Black Cat New Year’s Eve case and securing the permit for the first Los Angeles Pride Parade, Herb Selwyn was there and right at the center of things.  And that made it particularly difficult to do justice to his story in this episode because we had to leave out so much.

One story in particular, that’s one of our all-time favorites from the Making Gay History book wound up on the cutting room floor, so we decided to share it with you here in print.  Herb was a guest on a number of television programs on the topic of homosexuality.  He recalled one particularly memorable show in the late 1950s:

There was a Judge [Arthur S.] Guerin on this one particular show.  There was also Dr. Frederick Hacker, a famous psychia­trist from Vienna who did a lot of work in the field of homosexuality and psychodynamics.  Dr. Hacker treated a lot of homosexuals and he was used by a lot of lawyers, including me, to make reports for the probation department for gay people who got into difficulties.  There was also a private investigator on the panel.

During the show, Judge Guerin claimed that all homosexuals became such because they were seduced by sailors when they were twelve or thirteen years old.  Dr. Hacker disagreed with Judge Guerin, and Judge Guerin had a stroke right on television.  He hated to be disagreed with, and he had a violent temper. Probably his temper, combined with some cerebral arterial scle­rosis, caused blood vessels in his brain to burst.  I saw immediately what was happening and I waved to the host of the show to get the camera off of Judge Guerin.  The poor man was taken to the hospital and died a few days later.

Several members of the district attorney’s office rather gleefully said, “Well, Herb, I hear you killed Judge Guerin.  Good for you!”  But, of course, I wasn’t the one who made the fatal comment.

To learn more about Herb Selwyn and his contributions to the LGBTQ civil rights movement, have a look at the information and links below.  You’ll also find a couple of family photos in the transcript that follows, as well.

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Correction:  MGH host Eric Marcus states in this episode that no one published an obituary for Herb Selwyn.  That was incorrect.  Besides C. Todd White’s 2005 interview with Herb that was republished following his death (see link below), Herb’s family placed an obituary in the L.A. Times, and L.A.’s Frontiers magazine published Karen Ocamb’s obituary of Herb  (which is no longer accessible online; Frontiers ceased publication in September 2016). We regret the error.

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Los Angeles Times, June 13, 1970.

In this episode Herb Selwyn talks about securing the permit for the first Los Angeles Pride Parade in 1970. The Los Angeles Conservancy includes on its website an article about the history of the Christopher Street West/L.A. Pride Parade.  Be sure to have a look at the slideshow, which includes a 1970 article (pictured at left) about Herb Selwyn’s fight to secure a permit for the first parade, which took place on June 28, 1970, the same day as New York’s first Pride Parade (Chicago’s Pride Parade, which was also in honor of the first anniversary of the Stonewall uprising, was the very first, coming a day before both the New York and Los Angeles events.)  

L.A.’s 1970 Pride Parade on Hollywood Boulevard was held seventeen years after Chuck Rowland addressed the 1953 Mattachine convention and surprised attendees by stating, “The time will come when we will march arm in arm, ten abreast down Hollywood Boulevard proclaiming our pride in our homosexuality.”  His prediction was greeted by mostly shocked silence.  You can listen to Chuck Rowland’s episode from Season One here.

Herb recalled being “the guinea pig” in Dr. Evelyn Hooker’s famous study in which she compared gay men to straight men and demonstrated that gay men were not by nature mentally ill.  He said, “She sort of standardized the heterosexual control group on me.”  Hear Dr. Hooker in her own words explain her study and its impact in her Season One episode.

On New Year’s Eve in 1967, the police arrested patrons of the Black Cat bar in Los Angeles for kissing in the New Year.  Herb wound up representing a case that resulted from that raid and took it all the way to the Supreme Court.  The raid also led to a landmark public protest in Los Angeles against police repression.  You can read about the case in this Los Angeles Times article that marked the 50th anniversary of the gay rights demonstration that followed the Black Cat New Year’s arrests.  In another article published on the anniversary, you can see vintage photos of the protest.  And in this article you can read about the Black Cat being made a Los Angeles historic cultural monument.  

To learn more about two of the California Penal Codes that Herb references, you can review them here and here.

Read an extended 2005 interview here with Herb from The Tangent Group by C. Todd White.

You can also read Herb Selwyn’s oral history in Eric Marcus’s book Making Gay History.

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Interview Transcript

I’m Eric Marcus and this is Making Gay History.

In this episode you’re going to meet another of my heroes whose name has been lost to history. Herb Selwyn was a knight in shining armor for the fledgling LGBT civil rights movement on the West Coast.  He was an attorney from southern California who had no personal stake in fighting for the rights of gay people.  But he couldn’t turn the other way and stood up for LGBT folks during the years when other straight attorneys cashed in on the persecution of gay people and gay attorneys were too fearful—and with good reason—to stick their necks out for a despised minority.  

At the time, Herb had no idea how many lives his work would touch or what his foundational contributions to the early movement would mean to the people he loved best.

When Herb gave me his address in the Studio City neighborhood of Los Angeles it sounded familiar.  And sure enough he lives around the corner from my friend and fellow author Betty Berzon.  I pull into the driveway of a classic single-story, flat-roofed, mid-century house with a few palm trees in the front yard and before I reach the Spanish-style double front doors, Herb is there to greet me.

Herb’s a little guy in glasses who makes me feel very tall.  And I’m not tall.  And he makes me feel welcome.  We get set up in Herb’s study.  I clip my microphone to his light blue jump suit and press record.

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Eric: Interview with Herb Selwyn.  Thursday, August 24, 1989.  Location is Los Angeles, California.  Interviewer is Eric Marcus.  Tape one, side one.

Herb:  My parents were not… never homophobic.  They explained to me that, you know, some people have different predilections than others.  And, you know, the good old story that Socrates said about the people being paired up and because of the disobedience the gods had scattered them and they’re still searching for their mate.  You know, a woman for a woman, a man for a man, a woman for a man, and so on.  And we knew that there were, for example, gay bars in the area.  

Then during the war [World War II], I remember a young soldier who was arrested and sentenced to a lot of years because he’d had a relationship with a teenaged English boy.  And I told the major that I thought it was rather unjust that he get that much time and, uh, because the kid was willing and all that.  And that he should be sent for psychotherapy instead, you know.  And the major made some nasty crack about, “Well, you guys ought to go out and psychoanalyze each other,” or something like that.  And then…  

Eric:  Did he just assume you were one of them?

Herb:  Oh, no.  No, no.  He knew I wasn’t.  But he just felt it was improper for me to take up for them, because he felt…  He’s one of these guys that thought, well, this is beyond the pale.  

Eric:  Wasn’t that sticking your neck out?

Herb:  Oh, I’ve always stuck my neck out.  I never bothered about that.  I probably was not the most disciplined soldier in the armed forces there.  Because I always said what I thought and I didn’t care to whom I said it.  I still don’t.  I talk too much sometimes.

At any rate, um, after finishing law school I opened a practice and it must have been about three years later my father told me about this woman that when she—my dad had mentioned that I was a lawyer.  She said, “Oh, I belong to a group called the Mattachine Foundation,” I think it was then.  “And I wonder if he’d give a talk to us.”  And so my Dad asked and I said, “Certainly.”

So I checked Sections 286 and 288a and 647-5, as it was then, and the various statutes that might affect people committing homosexual acts.  

Eric:  What did you find?

Herb:  Now, the same would be heterosexual acts. In other words, Section 286 is having sexual relations with an animal; or a man through the anus.  Not animal or a man through the anus. There’s a semicolon there, you know.  

Eric:  Right.

Herb:  And of course that includes women, a man with a woman.  

Eric:  According to the New York Times they’d have to arrest 20% of heterosexual couples in America today.  

Herb:  Oh, yes, of course.  And 288a involved oral copulation—copulating the private parts of one with the mouth of another.  So, it also could affect heterosexuals.  Very few heterosexuals were ever arrested for that.  

Eric:  The meeting you went to, was it at someone’s home?  Was it a large group of people?

Herb:  No, I believe it was a home and I don’t think there probably were more than about 25 or 30 people.

Eric:  Men and women?

Herb:  Men and women, yes.  In those years they… men and women were very pleasantly together and there weren’t the schisms that there turned out to be later.

Eric:  How did they receive you?

Herb:  I was very well received, very well received.  Because, you see, in those years there were no homosexual lawyers at all.  They were all very deeply in the closet.  In fact, they were so deep that most of the people that represented gay organizations, as opposed to criminal cases, were straight.  

Eric:  Wasn’t there some risk for you professionally to get involved with Mattachine?  Danger in terms of losing clients?  Danger in terms of FBI investigations?

Herb:  Well, interestingly enough, the only time that they got upset is when I wrote a little card called, “Know Your Legal Rights,” which was sort of folded over.  And I wrote it and I think Mattachine, someone distributed it to the bars.  And, you know, it said basically what your rights are.  And they probably found this in the wallet of one of the people that was arrested. And this friend of mine, a classmate, in fact, who was with the City Attorney’s office, a prosecutor at that time, showed it to me and says, “Isn’t this awful?  Isn’t it horrible?”  

Eric:  Why was it horrible?

Herb:  And I looked at it and I didn’t tell him I wrote it.  I said, “Well, look, are there any statements of law there that are incorrect?”  And he says, “No, but telling people they don’t have to talk to the police.”  This was before Miranda.  And I said, “Well, if that’s their rights, don’t you think they have the right to know their rights?”  That guy just got peeved at me and walked away.

Eric:  Why was a document like that necessary, that kind of little card?

Herb:  Well, a lot of people didn’t know they didn’t have to talk to the police, they didn’t have to admit anything.  They could ask for a lawyer before saying anything.  

Eric:  What year was this, approximately?

Herb:  Oh, probably in the late ’50s.

A friend of mine, when he wanted a top secret clearance for a job in a defense factory, he was an engineer, used my name.  And the F.B.I. came and interviewed me.  And they said, “Well, we understand you formed the Mattachine Corporation.”  

Eric:  How did the F.B.I., when they came to ask you questions about this friend of yours, how did they know you had been involved in Mattachine?

Herb:  Oh, they probably keep a dossier on me.  They keep dossiers on everyone.  Under J. Edgar Hoover, who was in spite of whatever he was himself, seemed to be quite a homophobe when it came to others.  Probably wanted the organizations that were formed checked into.  And this was a corporation incorporated in California in, I believe, 1954.  And I think was the first gay organization incorporated.

Eric:  In the United States.

Herb:  Yes, I mean, the thing is, I know they once went to, someone once went to another lawyer and he wanted $25,000 to incorporate.  I did it free.  He told me that much later.

In addition to being involved in gay movements, I was involved with the Watts riots.  I defended a lot of people there in, um…

Eric:  What year was that?

Herb:  1968, I believe.  And then in the early ’70s, the Chicano Moratorium, where I defended a lot of people that were involved in that movement.  So I feel that… The only sadness I see is that these minorities don’t get together in a human liberation movement rather than fighting each other, which unfortunately is what does happen.  

Eric:  Which groups do you mean?  

Herb:  Oh, the Latino groups, the gay groups, the black groups, the Jewish groups.  

Eric:  During the time that you were representing gay people what did you see as the legal landmarks in gay rights law?

Herb:  The legislature in 1961 changed the law from the old lewd vagrancy statute where you could be arrested… any lewd or dissolute person could be arrested for a vagrant, as a vagrant. That’s a status offense.  And in ’61 it was changed where you actually had to do something.  You had to commit a lewd act.

And then later the famous consenting adult statutes that what consenting adults do in private is no longer illegal.  If you do it in a public place or with children it’s still illegal, you see, but doing it in a public place is now a misdemeanor instead of many of them being felonies.  And that was probably one of the big advances.

Then the attitude, of course, of society…  I’ll never forget, they tried to revoke a license of a hairdresser, a cosmetologist for being gay.

Eric:  What year, around when?

Herb:  Oh, that was again probably in the late ’50s.  And I tried that and I won the case at the administrative hearings.

Eric:  What was the nature of the case?

Herb:  Well, that he was a homosexual and therefore he should be stripped of his cosmetologist’s license.  So I told, I asked the administrative law judge whom I knew was married, you know, that he should ask his wife how many of the male hairdressers she goes to she feels might be gay.  And I just sort of jokingly asked him how all of our wives and girlfriends would look if all of the gay hairdressers had their licenses revoked.  He chuckled at that one.  Very amusing, but not for the poor guy whose license is at stake, because, you know, he had a nice little shop.  And it would have meant if he lost his license it would have, you know, wreaked a great deal of harm to him and to people that depended on him.

Eric:  So you worked for nearly twenty years…?

Herb:  Probably, yes, and I took the Black Cat case up the the Supreme Court, not successfully.

Eric:  What was the Black Cat case?  Can you tell me what that was about?

Herb:  Yes, there were a fairly large number of persons arrested at a bar called the Black Cat because they were kissing the New Year in.  

Eric:  So the case was a group of people were arrested for kissing on New Year’s Eve.

Herb:  Yeah.  

Eric:  Right.

Herb:  Some of them really got beaten badly afterwards.  In fact, one guy lost his spleen because he gotten beaten so badly by the police.  Police, you know, do sometimes—or did sometimes—go in for gay bashing.  They don’t anymore because the gay movement now has strength.  They have gay judges now and even gay policemen.

One of the other victories we had is the Christopher Street West Parade.  The police commission denied a permit to the committee.  I believe that was 1970, ‘71.  

Eric:  I think it was ‘70.

Herb:  They wanted a million dollar bond in case anybody threw rocks at them.

Eric:  What was the permit requested for?

Herb:  To have a parade on Hollywood Boulevard.  They had the Christopher Street parade in New York and they wanted a Christopher Street West parade here and they set up a committee. So they refused to give them the permit unless they… all kinds of things.  They wanted them to pay for police protection.  They wanted them to put up a bond—all sorts of expenses.  

Police protection is something that the citizens are entitled to, to be protected in the exercise of their constitutional rights.  If some people get annoyed by it and throw stones at ‘em, it’s up to police to arrest the stone throwers and not to prevent the marchers from marching.  And from then on ‘til today they’ve been marching every year and the parades have been getting bigger and better.

Eric:  Did you march in that original parade?  Were you there?

Herb:  I was there, oh, yes.  In fact, they also had… I remember one of them I took my eldest daughter, you know, to get her acclimated to people that others might not agree with, so to speak, just like I took her to black and Latino rallies.  

Eric:  Just as your parents set the tone for you in your views about others…

Herb:  Yes, that’s right.  You’ve got to do that.

Eric:  Given all the work you’ve done for gay rights groups and gay people over the years—I call this my Barbara Walters question—what do you see as your greatest contribution in that effort?

Herb:  I think probably the greatest contribution was the pioneering efforts, that when straight lawyers weren’t interested in it and gay lawyers were afraid to take it up, I was able to at least get a start in the organizations going.  And I think that I may have been one of the pioneers.  I mean, without flattering myself, I think that’s a statement I can make.

Eric:  Anything I haven’t asked you that you would like to comment on?

Herb:  I think you’ve covered it very well.  You’re really a very fine oral historian.

Eric:  Thank you. Thank you.  I’m going to clip that piece of tape and play it back on my bad days.

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Eric:  I was really touched by what Herb said about my interviewing skills.  But back in 1990 when I transcribed the interview, I wasn’t so happy with myself and typed myself a note.  I wrote:  “If you had paid more attention to being a good interviewer, you might have asked him what motivated him to help gays.”

Herb Selwyn with his daughter Jennifer, 2014. Credit: Courtesy of the Selwyn family

I kicked myself for not asking that, but then it occurred to me I could ask Herb’s daughter Jennifer.  I spoke to Jennifer the first time in February of 2016 when she called and introduced herself.  I figured it wasn’t good news.  But there was more that Jennifer wanted to share with me than the fact of her father’s recent death.  So I invited Jennifer to be a part of this episode.

Jennifer, what year were you born?

Jennifer:   I was born in 1962 and I’m the youngest of four children.  

Eric:  So do you remember your dad’s work with gay groups?

Jennifer:  I do.  You know I was fairly young at the time.  Mostly I remember his ill-fated campaign for Congress and the Democratic primary in 1974.  I was a little bit under twelve at the time.  And as a part of supporting his campaign I was around some gay groups and also as a very young person went to my first Pride March.  

Eric:  Do you remember what year you went to your first Pride March with your dad?

Jennifer:  Yeah, that would have been in June of ‘74, so I was a little shy of twelve at the time.

Eric:  Do you remember your impressions of it?

Jennifer:  I was pretty overwhelmed.  I mean, I’m not sure, you know, whether that was because of my age or just the general outrageousness of it all, but I was… my eyes were wide, I can tell you that.

Eric:  Do you have some sense of what motivated your dad in the first place?

Jennifer:  He really was somebody that I think my grandparents, as he mentioned, were very open-minded people.  They taught him that you don’t judge other people and that you stand up for people who are being bullied.  I think my father also said, and it was certainly true of him that, you know, he never knew when to keep his mouth shut.  And I think of that in a really good way. He really believed in speaking up for people who needed someone to champion them.  And I think that drove him in many ways.  Not just in his legal career, but in his life.  And I truly consider that one of the greatest gifts he gave to us.  I certainly value that every day.

Eric:  How did your dad react to you being gay?

Jennifer:  I came out to him when I was about nineteen.  I think that, you know, while anybody is nervous coming out to their parents, you know, the fact that my dad had this whole history and legacy of being involved in supporting gay rights made it so much easier for me.  My dad was always supportive of both myself and my sister.  At least I didn’t have to wonder if he was homophobic or he would reject me.  You know, so any nervousness I had was just about, you know, exposing something personal, not about, you know, the question that so many of us face, so many other people face, which is whether their parents will reject them or not because they’re lesbian or gay.

Eric:  Was your sister out to your dad before you?

Jennifer:  No, actually, she wasn’t.  She came out later, when she introduced a former partner to the family.  

Eric:  When you reflect on what your dad did, what does it make you think?

Jennifer:  Wow, I have so many, so many thoughts about it.  You know, I think that it was, you know, really brave of him to take the positions that he did and to involve himself, but I also think that in a way he realized that he could do it without threatening his safety, because he was straight.  He was heterosexual and he wasn’t going to take the risks that, you know, a gay or lesbian attorney at the time would have taken.  

I think he always had a very strong sense of social justice that I’m very grateful he passed onto all of us. And I think he was, you know, he was really motivated by that sense of outrage that people were discriminated against.  And he saw it as his role as an attorney to stand up for people who needed legal assistance.  And I think his gay rights work was really a part of that.  

Eric:  Do you ever marvel at how committed your dad was to making the world a better place for gay folks without knowing how directly his work would affect his own daughters?  

Jennifer:  I do, I really do.  You know, I would just say that, you know, in addition to my dad’s inspiration in his legal career and as a champion for minorities of various kinds and people who needed championing, my dad also just, has always been very supportive of me and of my family and my partner and my son, and that means a tremendous amount to me personally, as well.

April 2015 celebration of Herb Selwyn’s 90th birthday. From left to right: Jennifer, Pam, and Brian with their father (seated). Credit: Courtesy of the Selwyn family

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Herb Selwyn, 1943. Credit: Courtesy of the Selwyn family

Eric:  If you do a search for Herb Selwyn’s obituary, you won’t find anything beyond his family’s paid death notice.  Like Edythe Eyde, who we featured in an earlier episode, Herb’s pioneering contributions have been largely forgotten.  That’s why it gives me special pleasure to tell Herb’s story, to let him tell you his story, and to have Jennifer reflect on her father’s life and how his selfless actions made a difference in all of our lives.

Thank you Jennifer Selwyn and thanks, as always, to our crew.  Thank you Sara Burningham, Jenna Weiss-Berman, Casey Holford, Jonathan Dozier-Ezell, Zachery Seltzer, and Will Coley.  Our theme music was composed by Fritz Myers.

Making Gay History is a co-production of Pineapple Street Media, with assistance from the New York Public Library’s Manuscripts and Archives Division and the ONE Archives Foundation.

Season Two of this podcast  is made possible with support from the Ford Foundation, which is on the front lines of social change worldwide.

And if you like what you’ve heard, please subscribe to Making Gay History on iTunes, Spotify, Stitcher, or wherever you get your podcasts.

So long!  Until next time!

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