Amicus Curiae Brief — Obergefell v. Hodges

Supreme Court, U.S.

FILED

MAR 6 - 2015

OBTA. CF THE CLERK

Nos. 14-556, 14-562, 14-571,

Bn the Supreme Court of the United States

JAMES OBERGEFELL, et al., Petitioners,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT

OF HEALTH, et al., Respondents.

VALERIA TANCO, et al., Petitioners,

Vv

BILL HASLAM, GOVERNOR OF TENNESSEE, et al., Respondents.

APRIL DEBOER, et al., Petitioners,

v.

RICK SNYDER, GOVERNOR OF MICHIGAN, et al., Respondents.

~—wew mK mK — wee eo eww ee eee eee

v.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, et al., Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE MATTACHINE SOCIETY OF WASHINGTON, D.C.,

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Pau. M. THOMPSON

Counsel of Record

Lisa A. Linsky

Melissa Nott Davis

Michael R. Huttenlocher

Mary D. Hallerman

Ryan O. Leske*

Krista Meany

McDermott Wit. & Emery LLP

* Not admitted to practice in the

District of Columbia; supervised

by McDermott Will & Emery LLP

partners who are members of the

District of Columbia bar

500 North Capitol Street, NW

Washington, DC 20001

(202)756-8000

pthom pson@mwe.com

Attorneys for Amicus Curiue

—_—————--

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001!

Library of Congres

Law Library

i

TABLE OF CONTENTS

ee ee SP EE ovo ct stews actucaes iii

INTEREST OF AMICUS CURIAE ............. 1

INTRODUCTION AND SUMMARY OF

a aera le | ahd Gk rer Sta a wie Rie Bre % Kia ee 2

ie aia gi ei Cie oe ae ae 5

I. Recently Released Documents Reveal the

Culture and Language of Animus Against

I ee ce eae ee ee ge G 5

II. Executive Order 10450 Empowers the

Federal Government to Purge Itself of

I et ators oe hore re ae ale 6

A. The FBI's “Sex Deviate Program” Lays

the Groundwork for EO 10450 ......... 6

B. Hoover Outs President-Elect

Eisenhower's Trusted Political Advisor

Arthur Vandenberg, Jr. .............. 8

C. President Eisenhower Issues EO 10450,

Leveraging the Sex Deviate Program to

Purge Homosexuals from Government

Pr. oh a6 ciph odes ¢ oe eueewse ean 11

Ill. History of the Civil Service Commission ... 13

A. The CSC Office of General Counsel

(OGC): Animus in Specific Cases...... 20

hs, SE I bg ac wahceeseecensees 21

2. The Legacy of Norton v. Macy ...... 25

IV.

il

B. The CSC and Later the OPM Continue to

Target Homosexuals in the 1970s and

DE a les Oe cae aoe Oba ah ede 26

The Case of William Lyman Dew

Demonstrates the Extent of the

Government’s Animus Toward Homosexuals

ee ee cee s 27

A. Government Attempts to Purge the

Stain of Homosexuality: The William

Pe Cecliae et kehee cue e hee 8% 27

B. The Government’s Policy on

i nn a ah a & ok ee ee te 31

C. Dew’s Petition to the United States

EE bc ce wacadeceecnevaca 32

D. The Government Settles with Dew

and Strengthens Its Policy On

ET aw edeaeees 34

E. Why the Dew Case and Other Official

Acts of Animus Remain Relevant ...... 37

DET o¢oc6ssn0eseccadeneh canes cece 38

ill

TABLE OF AUTHORITIES

CASES

Bowers v. Hardwick,

Se re A Me re 11

DeBoer v. Snyder,

eB | ee 2

Dew v. Halaby,

317 F.2d 582 (D.C. Cir. 1963) .......... passim

Lawrence v. Texas,

ig a ss wwe 11, 37

Norton v. Macy,

417 F.2d 1161 (D.C. Cir. 1969) .... 21, 22, 23, 25

Romer v. Evans,

RE er had ee 37

United States v. Windsor,

EE a, ee ae a 37

Vill. of Arlington Heights v. Metro Hous. Dev. Corp.,

ed ee ick ee 4

STATUTES

EE Ee A ee 21

Civil Service Act,

i oe ect elas see ue ee 13

Veterans’ Preference Act of 1944,

5 U.S.C. § 851, et seg. (1958) ............... 27

iv

OTHER AUTHORITIES

4 W. Blackstone, Commentaries ............... 11

Scott J. Bloch, The Judgment of History: Faction,

Political Machines, and the Hatch Act, 7 U. Pa.

J. Lab. & Empl. L. 225 (2005) .............. 13

Brief for Appellant, Dew v. Halaby, 317 F.2d 582

(D.C. Cir. 1963) (No. 16741), available at

http://www.mwe.com/info/mattachineamicus/d

EEE Cnc tv awe Sedteeee nana es 30, 31

Brief of Respondents in Opp’n to Petition for

Certiorari, Dew v. Halaby, No. 458 Misc. (U.S.

Oct. Term 1963), available at http://www.mwe.

com/info/mattachineamicus/document31.pdf.

ey ee ee es ree 29, 32, 33, 34

CSC, Rating Standard for Homosexuals and Sexual

Perversion, FPM 731-3 (Mar. 8, 1965), available

at http://www.mwe.com/info/mattachine

amicus/document38.pdf ...............++.- 36

Exec. Order No. 9,835, 12 Fed. Reg. 1,935

Nee ee aaah aa 6 6 6, 7

Exec. Order No. 10,450, 18 Fed. Reg. 2,489

«ke sesee bee beeeneewes passim

Florida Legislative Investigation Committee,

Homosexuality and Citizenship in Florida,

Preface (Jan. 1964), available at

http://www.mwe.com/info/mattachineamicus/d

SEE ok GS dccwescckhcveeueeuneee es 17

Vv

Florida Legislative Investigation Committee,

Untitled Document (undated), available at http

//www.mwe.com/info/mattachineamicus/docu

ST cl Gkagne eee Sst eheekse een bens 17

James M. Haswell, Vandenberg Key Aide of Ike at

Convention, Detroit Free Press, July 11, 1952,

available at http://www.mwe.com/info/mattach

ineamicus/document2.pdf .................. 8

Hr’g Tr. on the Section 14, Veterans’ Preference Act

Appeal of William L. Dew (July 23, 1958),

available at http://www.mwe.com/info/mattach

ineamicus/document30.pdf .......... 29, 30, 31

Letter from Dwight D. Eisenhower to Arthur

Vandenberg, Jr. (Oct. 11, 1952), available at

http://www.mwe.com/info/mattachineamicus/

i See eke ht aa hed oe Coe 8 we 8

Letter from Dwight D. Eisenhower to Arthur

Vandenberg, Jr. (Jan. 17, 1953), available at

http://www.mwe.com/info/mattachineamicus/d

ET ckaneksKuckeek howe ba ve buts 10

Letter from Dwight D. Eisenhower to Arthur

Vandenberg, Jr. (Mar. 3, 1953), available at

http://www.mwe.com/info/mattachineamicus/d

SE CG ose a eee ee Sees Oke s 10

Letter from John Macy to MSDC (Feb. 25, 1966),

available at http://w®w.mwe.com/info/mattach

ineamicus/document20.pdf ............. 19, 20

Letter from L.V. Meloy to Charley Johns (Apr. 30,

1963), available at http://www.mwe.com/info/ma

ttachineamicus/documentl16.pdf ............ 17

vi

Letter from L.B. Nichols to Clyde Tolson (Dec. 9,

1952), available at http://www. mwe.com/info/matta

chineamicus/document5.pdf ................ 9

Letter from W.P. Plett to William L. Dew (May 14,

1958), available at http://www.mwe.com/info/ma

ttachineamicus/document28.pdf ......... 28, 29

Letter from W.P. Plett to William L. Dew (May 26,

1958), available at http//www.mwe.conm/info/mattach

ine amicus/document29.pdf ................ 29

Letter from Arthur Vandenberg, Jr. to Dwight D.

Eisenhower (Jan. 13, 1953), available at

http://www.mwe.com/info/mattachineamicus/d

6 ced cae s ONS k Oe hee eee ee eS 9

Letter from Arthur Vandenberg, Jr. to Dwight D.

Eisenhower (Feb. 6, 1953), available at

http://www.mwe.com/info/mattachineamicus/d

ET . 566s ck 4 ev ceb ees duos 4 6 Oe <8 10

Letter from Margery Waxman to Alice Daniels (Feb.

14, 1980), available at http://www.mwe.com/in

fo/mattachineamicus/document26.pdf ....... 26

Letter from Margery Waxman to Rep. J.J. Pickle

(June 26, 1980), available at http://www.mwe.co

m/info/mattachineamicus/document25.pdf .... 26

Memorandum from J. Edgar Hoover to All

Investigative Employees (Sept. 7, 1951),

available at http://www.mwe.com/info/mattachi

neamicus/documentl.pdf .............eee00- 7

Vil

Memorandum from J. Edgar Hoover to Clyde

Tolson (Jan. 5, 1953), available at

http://www.mwe.com/info/mattachineamicus/d

CUI $0 os 0. 0 0 008 6050003500 eee 9

Memorandum from Kimbell Johnson to Warren B.

Irons (Jan. 8, 1965), available at http://www.mw

e.com/info/mattachineamicus/document13.pdf

pekke we See Cee 14, 15, 16, 31

Memorandum from Kimbell Johnson to O. Glenn

Stahl (May 20, 1963), available at http://www .mwe.co

m/info/mattachineamicus/document18.pdf.. . 18

Memorandum from L.V. Meloy to Kimbell Johnson

(Dec. 24, 1964), available at http://www.mwe.com/info

/mattachineamicus/document35.pdf ......... 35

Memorandum from L.V. Meloy to Kimbell Johnson

and O. Glenn Stahl (Jan. 13, 1965), available at

http://www.mwe.com/info/mattachineamicus/do

amicus/document37.pdf................ 35, 36

Memorandum from Anthony L. Mondello to

Chairman Robert Hampton (July 1, 1969),

available at http://www.mwe.com/info/mattach

ineamicus/document21.pdf .......... 21, 22, 23

Memorandum from Anthony L. Mondello to

Chairman Robert Hampton (Mar. 4, 1971),

available at http://www.mwe.com/info/mattach

ineamicus/document23.pdf ................ 25

Memorandum from Anthony L. Mondello to

Chairman Robert Hampton (Apr. 6, 1971),

available at http://www.mwe.com/info/mattach

ineamicus/document24.pdf ............. 25, 26

Vill

Memorandum from Anthony L. Mondello to William

Ruckelshaus (July 16, 1969), available at

http://www.mwe.com/info/mattachineamicus/d

CL heen 6 eee ek ee ceeeee 23, 24

Memorandum from Bernard M. Shanley to

Governor Sherman Adams (Apr. 10, 1953),

available at http://www.mwe.com/info/mattach

ineamicus/documentlO.pdf ................ 11

Memorandum from John W. Steele to O. Glenn

Stahl (Nov. 17, 1964), http://www.mwe.com/in

fo/mattachineamicus/document12.pdf

eek. +a 13, 14, 18, 19

Memorandum from Margery Waxman to Peter

Garcia (Jan. 26, 1981), available at http://www.m

we.com/info/mattachineamicus/document27.pdf

New U.S. Jobs Went to Half Of State Department

‘Risks’, N.Y. Times, Feb. 24, 1954 ........... 12

Russell Porter, Vandenberg Jr. Is Selected As

Eisenhower’s Secretary, N.Y. Times, Nov. 27,

eee eset eeesen 8

James Ridgeway, The Snoops: Private Lives and

Public Service, The New Republic, Dec. 19, 1964,

available at http://www.mwe.com/info/mattach

ineamicus/document34.pdf ................ 34

Routing Slip Memorandum from L.V. Meloy to

O.Glenn Stahl (Jan. 8, 1965), available at

http://www.mwe.com/info/mattachineamicus/d

eee 35

27

ix

S. Res. 280, Senate Investigations Subcommittee of

the Committee on Expenditures, Employment of

Homosexuals and Other Sex Perverts in

Government (1950), available at http://www.mwe

.com/info/mattachineamicus/document14.pdf.. 16

Stip. for Dismissal of Writ of Cert., Dew v. Halaby

(U.S. Oct. Term 1964) (No. 64), available at

http://www.mwe.com/info/mattachineamicus/d

CEE 5 cu bec ceneceseccccccsuctes 34

Esther Tufty, Jt Was Vandenberg Day, available at

http://www.mwe.com/info/mattachineamicus/d

SEE 5 0.006445 00662600446b00%06 408% 8

U.S. Civil Service Commission, Bureau of Personnel

Investigations, The Investigative and Suitability

Programs of the U.S. Civil Service Commission

(Mar. 1969), available at http://www.mwe.com/

info/mattachineamicus/documentl1.pdf ..... . 13

U.S. Civil Service Commission, Federal Personnel

Manual System Supplement Installment, FPM

Supp. No. 731-71 (July 26, 1963), available at

http://www.mwe.com/info/mattachineamicus/do

ET 2-04 6 a4-5 66'9 04008 46 54 ook Caen 18

U.S. Dismissed 355 in Subversive Cases, N.Y.

- } & Fe eee 12

Vandenberg Forgoes U.S. Post, N.Y. Times, Apr. 14,

ee Pobcoeseaecsire nace 10, 11

1

INTEREST OF AMICUS CURIAE'’

The Mattachine Society of Washington, D.C.

(MSDC) is a non-profit, non-partisan research and

educational society that conducts original archival

research at The National Archives, U.S. presidential

libraries, the Library of Congress, the FOIA Library of

the Federal Bureau of Investigation, the Stonewall

National Museum and Archives, and other private and

public repositories across the country.

The mission of the MSDC is to uncover the often-

deleted political histories of lesbian, gay, bisexual and

transgender (LGBT) Americans who faced persecution

and discrimination at the hands of federal and state

governments for over sixty-five years. The MSDC is

dedicated to achieving full civil equality for LGBT

Americans.

The original MSDC was founded in 1961 by gay civil

rights pioneer, Dr. Franklin E. Kameny. It was the

first gay civil rights organization in Washington, D.C.

Today, MSDC is proud to continue this work at the

direction of its officers, Charles Francis and Pate Felts,

in collaboration with its pro bono legal counsel, the

international law firm of McDermott, Will & Emery

LLP.

‘ Pursuant to Supreme Court Rule 37.3, amicus curiae certifies

that counsel! of record of all parties consented to the filing of this

brief. Pursuant to Supreme Court Rule 37.6, amicus curiae affirms

that no counsel for a party authored this brief in whole or in part

and that no person other than amicus and its counsel made a

monetary contribution to its preparation or submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

In its decision below, the Sixth Circuit

acknowledged the “lamentable reality that gay

individuals have experienced prejudice in this country,

sometimes at the hands of public officials, sometimes at

the hands of fellow citizens.” DeBoer v. Snyder, 772

F.3d 388, 413 (6th Cir. 2014). In doing so, however, the

Court refused to connect that history to “the institution

of marriage.” Jd. The history of “prejudice against

gays,” the Court explained, did not lead “to the

traditional definition of marriage.” Jd. Thus, “/t]he

usual leap from history of discrimination to

intensification of judicial review does not work.” Jd.

Whatever the logic of the lower court’s decision, it

missed the point. Without question, there is a long-

standing and well-documented history of animus

against LGBT Americans, and this history has a direct

and real connection to the state marriage bans now

before this Court. See, e.g., Br. of the Human Rights

Campaign and 207,551 Americans as Amici Curiae

Supporting Petitioners 16-21 (examining the historical

and political context behind the state marriage bans).

But the historical animus against LGBT Americans

is much deeper than just one set of laws. For decades,

this animus was one of the basic assumptions of

American life. It was so persistent, so prevalent, and

so instrumental to the way that we structured our

institutions, treated our fellow citizens, and organized

our lives that, in retrospect, it is often overlooked.

It is the mission of the MSDC to uncover this often

overlooked history of animus. The MSDC has sought

3

to locate and make public the long forgotten and often

hidden documents from federal! and state governments,

presidential libraries, and other private and public

institutions, that reveal animus against LGBT

Americans. George Orwell is credited with having

said, “the most effective way to destroy people is to

deny and obliterate their own understanding of their

history.” The purpose of the MSDC is to ensure that

this history of animus is not forgotten.

And that history is very relevant to the current

cases before this Court. Original source materials

obtained and recently released by the MSDC reveal the

backdrop of animus in front of which the states enacted

the bans now at issue.” For decades, both federal and

state governments targeted and persecuted

homosexuals, individuals suspected of being

homosexual, and even those believed to have engaged

in homosexual acts, regardless of actual sexual

orientation. The stated rationale shifted over

time—from concerns about national security to code

words, such as “suitability”"—but the point was always

the same: government officials, federal and state, high

and low, felt a complete revulsion toward homosexuals

and wanted to purge the country of even the hint of

homosexuality.

Animus, therefore, was a culture. And with that

culture came a language. For decades, government

officials referred to homosexuality in official, often

? MSDC has requested to lodge the materials, cited herein, with

the Clerk pursuant to Supreme Court Rule 32.3. The materials

are also available online at http://(www.mwe.com/info/

mattachineamicus/index.html.

4

highly confidential or privileged communications, as

“unnatural,” “uniquely nasty,” “immoral,” “deviant,”

“pervertled],” and an “abomination.” Even the FBI had

a term for the program that it designed to rid the

government of homosexuals—the “Sex Deviate

Program.” Once it attached, whether based in fact or

mere speculation, the label of homosexuality remained

forever fixed. As one senior executive official wrote,

“once a homo, always a homo.” And, as one state

legislature put it, what homosexuals wanted was

“recognition.” And “recognition” was something to fear.

To be sure, these documents do not mention

marriage or the bans now at issue. But, in every way,

that is precisely what they are about. To understand

whether a law embodies constitutionally impermissible

animus, this Court often looks to “circumstantial

evidence” such as “historical background.” Véill. of

Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S.

252, 265 (1977). The historical background

demonstrated by these original source materials

reveals a culture of animus against LGBT Americans,

justifications for excluding them from the privileges

given to all other Americans, and a revulsion to any

form of intimacy between individuals of the same sex.

The voices of the government officials in these

important documents, and the stories of the victims of

these purges, show why government actions grounded

in animus cannot stand.

5

ARGUMENT

I. Recently Released Documents Reveal the

Culture and Language of Animus Against

LGBT Americans.

Although the MSDC has identified thousands of

pages of previously undisclosed government

documents, there are three areas that best demonstrate

the culture and language of animus against LGBT

Americans that are relevant to this Court’s review.

First, in the 1940s and 50s, the federal government

began a purge of homosexuals from federal service,

beginning with the creation of the FBI’s Sex Deviate

Program and culminating in the adoption and

implementation of Executive Order 10450. With the

official support and encouragement of the President

and the director of the FBI, the federal government

instituted a policy of pure revulsion against

homosexuals and engaged in a concerted effort to

identify and remove them from government service.

Second, the Civil Service Commission (CSC), the

predecessor to the Office of Personnel Management

(OPM), implemented the purge. In stark and

unforgiving terms, officials at the CSC wrote of their

policy of excluding homosexuals from federal service.

They worked closely with leaders in Congress and the

states to ensure that this policy stretched beyond

federal agencies. And, when faced with opposition from

the courts, the CSC shifted and altered its approach,

but with the same purpose—to keep homosexuals from

equal status.

Finally, the culture and language of animus went so

far that it even extended to those who were

6

heterosexual, but “suspected” of being homosexual.

The case of William Dew demonstrates that better than

any other. A black man, married with three children,

Dew fought for years to regain his position with the

federal government—a position that was taken from

him because of acts that he engaged in prior to

employment. It took the intervention of this Court to

end Dew’s ordeal and restore him to his position.

II. Executive Order 10450 Empowers the

Federal Government to Purge Itself of

Homosexuals.

Under the pretext of protecting national security,

President Dwight D. Eisenhower issued Executive

Order 10450 (“EO 10450”), declaring that the federal

government could deny a citizen employment in “each

department or agency of the Government” solely

because that person was homosexual. Exec. Order No.

10,450 § 2, 18 Fed. Reg. 2,489 (Apr. 29, 1953). Not only

did EO 10450 prevent homosexuals from prospective

employment, but it also ordered the heads of all

government agencies to reopen old “loyalty”

investigations previously authorized by President

Harry S. Truman under Executive Order 9835 (“EO

9835”) to determine whether current employees were

homosexual and, if so, to terminate them. With the

stroke of a pen, President Eisenhower legalized the

discrimination of homosexuals.

A. The FBIs “Sex Deviate Program” Lays

the Groundwork for EO 10450.

At the time of Eisenhower’s election in November

1952, the FBI was already conducting “loyalty”

investigations of all employees of the federal

7

government, pursuant to EO 9835. See Exec. Order

No. 9835 §§ I, IV(1), 12 Fed. Reg. 1,935 (Mar. 25, 1947).

Under EO 9835, the FBI could not, however, disqualify

someone from federal employment based on

homosexuality.* Thus, the FBI lacked “investigative

jurisdiction” over, in the words of then-FBI Director

Hoover, “Sex Deviates.”. Memorandum from J. Edgar

Hoover to All Investigative Employees (Sept. 7, 1951),

available at http://www.mwe.com/info/mattachineami

cus/document1.pdf.

Nonetheless, in a September 7, 1951 memo entitled

“Sex Deviates in United States Government Service,”

Hoover sought to change that. Hoover directed that in

the course of “Loyalty of Government Employee cases,”

“(wjhen information is received . . . indicating the

person under investigation is a sex deviate, this

allegation should be completely and fully developed and

the facts reported.” Jd. at 2. Hoover also instructed his

agents that, “when an allegation is received that a

present or former civilian employee of any branch of

the United States Government is a sex deviate, such

information is furnished to the [CSC].” Id. at 1.

In addition, Hoover wrote that “[ajll of the police

departments throughout the country were notified . . .

to place a notation on the arrest fingerprint card that

the subject was an employee of the Federal

Government.” Jd. By the time Eisenhower was

elected, therefore, Hoover already was amassing a

cache of information to use against homosexual

* As described below, the CSC later used an employee's or

prospective employee’s homosexuality as a disqualifying factor

under its own repulations and authority. See infra Part IIL.

8

employees of the Federal Government. And he was

using state and local police as his deputies to gather it.

B. Hoover Outs President-Elect

Eisenhower’s Trusted Political Advisor

Arthur Vandenberg, Jr.

Unfortunately, Hoover used this information with

terrifying effect. With the Sex Deviate Program in full

effect, Hoover sought to remove one of Eisenhower’s

most trusted political advisors, Arthur Vandenberg, Jr.

Vandenberg was the son of a well-known, and highly-

regarded, United States Senator from Michigan. He

served as the Chair of “Citizens for Eisenhower,”

advised Eisenhower at the Republican convention, and

managed the release of Eisenhower’s tax returns and

income statements. See James M. Haswell,

Vandenberg Key Aide of Ike at Convention, Detroit Free

Press, July 11, 1952, at 10, available at

http://www.mwe.com/info/mattachineamicus/docume

nt2.pdf; Esther Tufty, Jt Was Vandenberg Day,

available at http://www.mwe.com/info/mattachineami

cus/document2.pdf; Letter from Dwight D. Eisenhower

to Arthur Vandenberg, Jr. (Oct. 11, 1952), available at

http://www.mwe.com/info/mattachineamicus/document

3.pdf. To reward Vandenberg for his efforts, on

November 27, 1952, Eisenhower named Vandenberg

“Secretary to the President.” Russell Porter,

Vandenberg Jr. Is Selected As Eisenhower’s Secretary,

N.Y. Times, Nov. 27, 1952, at 1. Before he could serve,

however, Vandenberg was subject to a_ loyalty

investigation by the FBI.

On December 30, 1952, Hoover and Eisenhower met

in New York to discuss the results of Vandenberg’s

investigation. In a post-meeting memorandum, Hoover

9

noted that he “mentioned the case of Mr. Arthur

Vandenberg and outlined briefly to the General some

of the angles of the case which we are now

investigating.” Memorandum from J. Edgar Hoover to

Clyde Tolson et al. 2 (Jan. 5, 1953) {hereinafter Tolson

Memo], available at http://www.mwe.com/info/mattachi

neamicus/document4.pdf.

The “angle,” of course, was Vandenberg’s

homosexuality. During the investigation, the FBI

learned that Vandenberg was living with a young man

who had been arrested “in Lafayette Park on a morals

charge.” Letter from L.B. Nichols to Clyde Tolson (Dec.

9, 1952), available at http://www. mwe.com/info/matta

chineamicus/document5.pdf. In turn, Hoover “told the

General that Vandenberg had asked that we not

interview the young man at present living with

Vandenberg until he, Vandenberg, came out of the

hospital, to which he had gone for a physical check over

the last weekend.” Tolson Memo, supra, at 2.

Eisenhower was thus provided with informatien to

conclude that Vandenberg was, in fact, homosexual.

Rather than reveal Vandenberg’s homosexuality,

Eisenhower told Hoover that, if Vandenberg withdrew

from his appointment, Hoover “could inform

Vandenberg that no report would be submitted as it

would then be a moot question.” Jd.

Instead of having his sexual orientation made

public, Vandenberg resigned under the guise of being

“ill.” Letter from Arthur Vandenberg, Jr. to Dwight D.

Eisenhower (Jan. 13, 1953), available at http://www.m

we.com/info/mattachineamicus/document6. pdf.

Eisenhower replied that he was “very distressed” about

Vandenberg’s “health” and informed Vandenberg that

10

“as I know you understand, we have to go ahead with

our setup.” Letter from Dwight D. Eisenhower to

Arthur Vandenberg, Jr. (Jan. 17, 1953), available at

http://www.mwe.com/info/mattachineamicus/docume

nt7.pdf.

Three weeks later, Vandenberg wrote back,

informing Eisenhower that he was “ready and anxious

to go to work.” Letter from Arthur Vandenberg, Jr. to

Dwight D. Eisenhower (Feb. 6, 1953), available at

http://www.mwe.com/info/mattachineamicus/document

8.pdf. But Eisenhower was not prepared to have a

homosexual in the White House. He ignored

Vandenberg’s request, pretending that Vandenberg

remained ill:

I am distressed to learn that your physical

difficulty has proved so stubborn in its refusal to

yield to treatment. Much as we miss you, I am

certain that you should obey the doctors

implicitly; the longer these things hang on the

more difficult they are to cure.

... we are now proceeding with reorganization

of the whole staff without your inclusion in it.

To you I send . . . my most earnest prayer that

you will experience an early return to vigorous

health.

Letter from Dwight D. Eisenhower to Arthur

Vandenberg, Jr. (Mar. 3, 1953), available at

http://www.mwe.com/info/mattachineamicus/docume

nt9.pdf.

The myth persisted in the press as well. On or about

April 14, 1953, The New York Times reported that

Vandenberg requested Eisenhower withdraw his

11

appointment because “he had been suffering from

stomach ulcers and did not know how long the ailment

would continue.” Vandenberg Forgoes U.S. Post, N.Y.

Times, Apr. 14, 1953, at 38.

C. President Eisenhower Issues EO 10450,

Leveraging the Sex Deviate Program to

Purge Homosexuals from Government

Service.

Two weeks later, Eisenhower issued EO 10450.‘ The

pretext for EO 10450 was “to insure that the

employment and retention in employment of any

civilian officer or employee within the department or

agency is clearly consistent with the interests of the

national security.” Exec. Order No. 10,450 § 2, 18 Fed.

Reg. 2,489 (Apr. 29, 1953). Section 8(1)(iii) of EO 10450

stated, in relevant part, that:

The investigations conducted pursuant to this

order shall be designed to develop information as

* In advance of issuing EO 10450, White House Counsel Bernard

M. Shanley informed Eisenhower’s Chief of Staff Sherman Adams

that he “talked with Assistant Attorney General Warren Burger.

who will have the responsibility of defending any action under [EO

10450].”. Memorandum from Bernard M. Shanley to Governor

Sherman Adams (Apr. 10, 1953), available at

http://www.mwe.com/info/mattachineamicus/document 10. pdf.

Burger, of course, would become the Chief Justice of this Court

who wrote a concurring opinion in Bowers v. Hardwick stating that

homosexuality was “the infamous crime against nature’ as an

offense of ‘deeper malignity’ than rape, a heinous act ‘the very

mention of which is a disgrace to human nature,’ and ‘a crime not

fit to be named.” Bowers v. Hardwick, 478 U.S. 186, 197 (1986)

(Burger, C.J. concurring) (quoting 4 W. Blackstone, Commentaries

*215), overruled by Lawrence v. Texas, 539 U.S. 558, 578 (2003)).

12

to whether the employment or retention in

employment in the Federal service of the person

being investigated is clearly consistent with the

interests of the national security. Such

information shall relate, but shall not be limited,

to . . . faJny criminal, infamous, dishonest,

immoral, or notoriously disgraceful conduct,

habitual use of intoxicants to excess, drug

addiction, sexual perversion.

Id. § 8(1)Gii) (emphasis added). EO 10450 also

leveraged the collection of arrest finger print cards

collected through Hoover’s Sex Deviate Program. Id.

§ 3(a) (“[I]n no event shall the investigation include less

than a national agency check (including a check of the

fingerprint files of the [FBI]).. . .”).

The stated rationale of EO 10450—“national

security”—is belied by its breadth. In fact, EO 10450

was designed to purge the government of certain types

of people, including homosexuals. In an article dated

February 24, 1954, The New York Times reported that

of 590 people separated from the State Department,

“Injinety-nine involved ‘homosexual deviations’ as the

principal factor, and 278 similar cases were under

investigation with no determinations yet made.” New

U.S. Jobs Went to Half Of State Department ‘Risks’,

N.Y. Times, Feb. 24, 1954 at 1, 42.° Indeed, the

° In March of 1954, the CSC released a report concerning EO

10450 reporting on individuals separated from government service.

Though not explicitly tying “sexual perversion” to homosexuality,

Philip Young, the Chairman of the CSC reported that

approximately 154 government employees were dismissed for

“sexual perversion” reasons. U.S. Dismissed 355 in Subversive

Cases, N.Y. Times, Mar. 2, 1954, at 1, 45.

13

government used EO 10450 repeatedly to discriminate

against homosexuals in the workplace and set an

example that states would soon follow.

Ill. History of the Civil Service Commission.

EO 10450 and the Sex Deviate Program were

already powerful tools to implement the policy of

running homosexuals out of the federal government.

But, when combined with the CSC, the three became a

potent poison that spread animus against homosexuals

throughout all branches of the federal government and

into the States.

Congress established the CSC in 1883 “to create a

merit-based federal workforce.” Scott J. Bloch, The

Judgment of History: Faction, Political Machines, and

the Hatch Act, 7 U. Pa. J. Lab. & Empl. L. 225, 230

(2005). To determine the “relative capacity and fitness”

or “suitability” of certain federal applicants, Civil

Service Act, 22 Stat. 403-404 (1883), the CSC

investigated applicants’ personal backgrounds,

performed in-person interviews of applicants and their

colleag»es, and ran criminal background checks. U.S.

Civil Service Commission, Bureau of Personnel

Investigations, The Investigative and Suitability

Programs of the U.S. Civil Service Commission (Mar.

1969), available at http://www.mwe.com/info/mattachin

eamicus/document11.pdf.

Homosexuality was a-bar to federal employment

because it prevented an applicant from passing a CSC

security investigation under EO 10450. A full

investigation by the CSC served “to develop

information as to whether the employment of that

individual is clearly consistent with the interests of

14

national security.” Memorandum from John W. Steele

to O. Glenn Stahl 1 (Nov. 17, 1964) [hereinafter Steele

Memo], available at http://www.mwe.com/info/mattachi

neamicus/document12.pdf. Such information ould

include “any criminal, infamous, dishonest, immoral or

notoriously disgraceful conduct” and “any facts which

furnish reason to believe that the individual may be

subjected to coercion, influence, or pressure.” Jd. John

Steele, a supervisor at the CSC, put it this way:

[O]Jur society generally regards homosexuality as

a form of immoral conduct. Also, our societal

attitudes being what they are, a homosexual is

extremely vulnerable to blackmail: exposure

means public opprobrium, and, in the case of a

Government employee the loss of his job. Thus,

under the terms of the Order, past or present

homosexuality renders the individual

unacceptable for a sensitive position.

Id. (emphasis added).

But this was not the first time that the United

States government had declared homosexuals unfit for

government service. For many years, the CSC

considered homosexuality under its “general standards

on immoral conduct” in its suitability investigations.

Memorandum from Kimbell Johnson to Warren B.

Irons 1 (Jan. 8, 1965) {hereinafter Johnson-Irons

Memo], available at http://www.mwe.com/info/mattachi

neamicus/documentl13.pdf. For example, as of

November 11, 1945, the CSC effectively prohibited the

employment of “proven” homosexuals:

Homosexuals are not considered suitabie persons

for Federal employment. Examples of evidence

15

acceptable as proof by the Commission are court

records or convictions for some form of

perversion, statement to that effect by the

employee to co-workers or to his physician,

admittance to a hospital for that reason,

admission by the employee to a Commission

representative or other reliable source of

information. . . . [GJenerally{,] debarment is

applicable when proof of homosexuality is

present.

Id. (emphasis added).

The government’s animus toward homosexuals

continued through 1950, when the CSC “worked closely

with the [U.S. Senate Subcommittee of the Committee

on Expenditures in the Executive Department] in

running down the status of homosexuals who . . . were

still employed in the Federal service.” Jd. at 2

(emphasis added). In the wake of this collaboration to

ferret out such “sex perverts” from government service,

the U.S. Senate Subcommittee concluded:

There is no place in the United States

Government for persons who violate the laws or

the accepted standards of morality, or who

otherwise bring disrepute to the Federal service

by infamous or scandalous personal conduct .. . .

It is the opinion of this subcommittee that those

who engage in acts of homosexuality and other

perverted sex activities are unsuitable for

employment in the Federal Government.

Id. (emphasis added). The Senate emphasized that

“the public interest cannot be adequately protected

unless responsible officials adopt and maintain a

16

realistic and vigilant attitude toward the problem of

sex perverts in the Government. To pussyfoot or to

take half measures will allow some known perverts to

remain in the Government... .” S. Res. 280, Senate

Investigations Subcommittee of the Committee on

Expenditures, Employment of Homosexuals and Other

Sex Perverts in Government (1950) at 21, available at

http://www.mwe.com/info/mattachineamicus/document

14.pdf.

And half measures the government did not take. In

1956, the CSC issued a “Suitability Rating Examiners

Handbook,” instructing its examiners on how to

evaluate whether an individual’s sexual orientation

barred government employment. Johnson-Irons Memo,

supra, at 3. “Proof” of homosexuality included “credible

information from reliable sources concerning an

individual’s reputation and conduct.” dd. The

Handbook also provided guidelines for “processing”

cases of previously debarred homosexual] employees. In

those cases, “a careful and thorough examination must

be made to determine whether complete rehabilitation

has been effected.” Jd. (emphasis in original).

Evidence of “rehabilitation” from “sexual deviation”

included “severance of association with persons known

or suspected of being sexual deviates,” “discontinuing

the frequenting of places known to be ‘hangouts’ or

residences of sexual deviates,” and “the attitude and

reputation of the person since corrective action was

taken.” Jd. But to remove any doubt, the Handbook

stated, “|p]ersons about whom there is evidence that

they are homosexuals or sexual perverts . . . are not

suitable for Federal employment.” Id. at 2 (emphasis

added).

17

Nor were homosexuals “suitable” for employment in

the states. In 1963, the Florida Legislature established

a committee to “investigate and report on ‘the extent of

infiltration into [state] agencies . . . by practicing

homosexuals ....” Florida Legislative Investigation

Committee, Homosexuality and Citizenship tn Florida,

Preface (Jan. 1964) [hereinafter FLIC Report],

available at http://www.mwe.com/info/mattachineami

cus/document15.pdf.

The then-General Counsel of the CSC, L.V. Meloy,

contacted the chairman of the Florida Legislative

Investigation Committee (FLIC), seeking “several

copies” of its report. Letter from L.V. Meloy to Charley

Johns (Apr. 30, 1963), available at http://www.mwe.co

m/info/mattachineamicus/document16.pdf. As Meloy

explained, the “Federal Government has related

problems in this area and... [the] investigation will

shed additional light on a most difficult problem in

suitability for government employment.” Jd. The

MSDC has received a copy of the report, titled

“Homosexuality and Citizenship in Florida” — a report

filled with sensationalism, vitriol, and animosity for

the “abomination” of homosexuality and warning that

“|a] key homosexual aim is recognition.” FLIC Report,

supra, at 3. The committee went so far as to suggest

that “[slociety would feel better if there were no

homosexuals.” Id. at 11. The work of FLIC resulted in

the removal of at least 37 federal government

employees. FLIC, Untitled Document (undated),

available at http://www.mwe.com/info/mattachineami

cus/document17.pdf.

In the spring of 1963, the CSC revised its

Suitability Rating Examiners Handbook to clarify that

18

homosexual conduct—not perceived “homosexual

tendencies”—bars someone from employment.

Memorandum from Kimbell Johnson to O. Glenn Stahl

(May 20, 1963), available at http://www.mwe.com/info

/mattachineamicus/document18.pdf. Proof of

“homosexual conduct” included “credible information

indicating that the individual has engaged in or

solicited others to engage in such [homosexual] acts

with him.” U.S. Civil Service Commission, Federal

Personnel Manual System Supplement Installment,

FPM Supp. No. 731-71 (July 26, 1963), available at

http://www.mwe.com/info/mattachineamicus/document

19.pdf. Yet, if the person “refrained from [homosexual]

activities,” he or she would remain eligible for federal

employment. Jd. Despite this intrusive inquiry into an

individual’s private life, the CSC asserted that “it does

not consider itself to be the guardian of the public’s

morals|.]” Jd.

The exclusion of homosexuals from federal

employment continued through the 1960s. In a

memorandum to John Steele, Glenn Stahl wrote that

the “[CSC] set[s] homosexuality apart from other forms

of immoral conduct and take[s] a much more severe

attitude toward it.” Steele Memo, supra, at 2. When it

came to other acts of “immoral conduct,” the CSC

would take into account the seriousness of the conduct.

Not the case for homosexuality: the CSC would

“automatically find the individual [that has engaged in

homosexual acts] unsuitable for Federal employment

unless there is evidence of rehabilitation.” Id.

(emphasis in original). This led to subjective

determinations of an individual’s suitability “depending

on the strength of the reviewing official’s personal

19

aversion to homosexuality,” with some examiners

concluding “once a homo, always a homo”:

Really, we do not apply Commission policy at all;

we apply our own individual emotional reactions

and moral standards. Our tendency to ‘lean

over backwards’ to rule against a homosexual is

simply a manifestation of the revulsion which

homosexuality inspires in the normal person.

What it boils down to is that most men look upon

homosexuality as something uniquely nasty, not

just as a form of immorality.

Id. at 3 (emphasis added).

Less than a year later, representatives of the CSC

met with members of the MSDC to discuss the federal

government’s policy on the suitability of persons “who

are shown to have engaged in homosexual acts.” Letter

from John Macy to MSDC 1 (Feb. 25, 1966), available

at http://www.mwe.com/info/mattachineamicus/docum

ent20.pdf. In its official response, the CSC used

language of disgust and animus to justify the exclusion

of homosexuals from government employment:

Pertinent considerations here are the revulsion

of other employees by homosexual conduct and

the consequent disruption of service efficiency,

the apprehension caused other employees of

homosexual advances, solicitations, or assaults,

the unavoidable subjection of the sexual deviate

to erotic stimulation through on-the-job use of

common toilet, shower, and living facilities, the

®* In attendance for the MSDC were Dr. Franklin E. Kameny and

Lilli Vincenz, among others.

20

offense to members of the public who are required

to deal with a known or admitted sexual deviate

to transact Government business, the hazard

that the prestige and authority of a Government

position will be used to foster homosexual

activity, particularity among the youth, and the

use of Government funds and authority in

furtherance of conduct offensive both to the

mores and the law of our society.

Id. at 2 (emphasis added).

“To be sure,” the letter concluded, “if an individual

applicant were to publicly proclaim that he engages in

homosexual conduct, that he prefers such relationships,

that he is not sick, or emotionally disturbed, and that

he simply has different sexual preferences .. . the

Commission would be required to find such an

individual unsuitable for Federal employment.” 7d. at

4.

Multiple documents uncovered by the MSDC refer

to this letter as the CSC’s “official policy” on the

employment of homosexuals.

A. The CSC Office of General Counsel

(OGC): Animus in Specific Cases.

Despite this relentless end persistent history of

animus against homosexuals, federal courts sought to

step in and right the wrongs imposed on particular

individuals. Unfortunately, recently uncovered

documents show that the CSC fought these decisions at

every turn.

21

1. Norton v. Macy

One example is the case involving Clifford Norton,

a veteran and budget analyst with NASA.’ Norton v.

Macy, 417 F.2d 1161, 1162 (D.C. Cir. 1969). Norton

was arrested by two Morals Squad officers for a traffic

violation after picking up another man, driving once

around Lafayette Square in Washington, D.C., and

then dropping the man off again. Jd. The officers

arrested both men and interrogated them for two hours

about their activities and sexual histories. Jd. The

head of the Morals Squad then telephoned NASA

Security Chief Fugler who arrived at 3:00am. /d.

Fugler and a colleague then continued to interrogate

Norton until 6:00am. Zd. at 1163.

Under intense, all-night questioning, Norton

confessed that “he might have engaged in some sort of

homosexual activity” after drinking on two prior

occasions. Id. As a result, NASA removed Norton for

engaging in “immoral, indecent and disgraceful

conduct.” Memorandum from Anthony L. Mondello to

Chairman Robert Hampton 1 (July 1, 1969)

[hereinafter Mondello-Hampton Memo], available at

http://www.mwe.com/info/mattachineamicus/docume

nt21.pdf. Norton’s supervisor “was not worried about

any possible effect on [Norton’s] performance and went

so far as to inquire of personnel officers ‘if there was

any way around this kind of problem for the man.”

Norton, 417 F.2d at 116§-67. While Norton did not

pose any security concerns, NASA nonetheless

’ As a veteran, the government could only dismiss Norton “for such

cause as will promote the efficiency of the service.” 5 U.S.C.

§ 7513(a); Norton v. Macy, 417 F.2d 1161, 1162 (D.C. Cir. 1969).

22

terminated him because “dismissal for any homosexual

conduct was a custom within the agency .. . and

continued employment of [Norton] might ‘turn out to be

embarrassing to the agency... .” Jd. at 1167.

Although the federal district court approved

Norton’s termination, the Court of Appeals reversed.

According to the Court, NASA’s decision to terminate

Norton could be “a smokescreen hiding personal

antipathies or moral judgments which are excluded by

statute as grounds for dismissal.” Jd. The Court went

on to state:

Lest there be any doubt, we emphasize that we

do not hold that homosexual conduct may never

be cause for dismissal of a protected federal

employee. Nor do we even conclude that

potential embarrassment from an employee’s

private conduct may in no circumstance affect

the efficiency of the service. What we do say is

that, if the statute is to have any force, an

agency cannot support a dismissal as promoting

the efficiency of the service merely by turning its

head and crying shame.

Id. at 1168. In other words, the decision required a

“nexus” between homosexual conduct and _ job

performance.

But this was a standard that became increasingly

difficult for the CSC to meet. The day the Norton

decision came down, the CSC General Counsel,

Anthony Mondello, promptly complained about the

decision:

The significance of this decision is that the court

says we must show a connection between the

23

evidence against the employee and the efficiency

of the service to justify a removal for homosexual

conduct.

Mondello-Hampton Memo, supra, at 1. Mondello

pointed out that “the court noted that it was possible

that homosexual conduct of an employee might bear on

the efficiency of the service. ... It might in some

circumstances be evidence of an unstable personality,

unsuited for certain kinds of work.” Id. at 2. He also

emphasized that “[iJf the employee made offensive

overtures while on duty or if his conduct were

notorious, the reactions of other employees and of the

public with whom he came in contact might be taken

into account.” Id.

Several weeks later, Mondello wrote to William

Ruckelshaus, Assistant United States Attorney

General, urging the government to seek review of the

Appeals Court’s reversal of Norton v. Macy.

Memorandum from Anthony L. Mondello to William

Ruckelshaus (July 16, 1969), available at

http://www.mwe.com/info/mattachineamicus/docume

nt22.pdf. Mondello urged review based on a

misapplication of the rational basis standard. Id. at 2.

Mondello wrote:

The majority opinion ignores the realities of the

civil service by virtually overriding the long-

standing legislative and executive policy that

“good character” is aS much a qualification for

public employment as the skili and competence

that are needed in order to perform the duties of

a particular position. The efficiency of the

service encompasses much more than the

24

objective of satisfactory performance of

particular tasks by individual employees.

Id. at 3.

In a blatant display of his own animus, Mondello

claimed that “[t]here would be a gradual deterioration

of the civil service if it were commonly known that

persons who repeatedly engaged in serious misconduct

offensive to community standards were appointed or

retained in Federal agencies. Government employment

would be less attractive as a career and the quality of

applicants would deteriorate.” Id.

Mondello even set out a historical argument for the

CSC’s continued animus toward homosexuals. He

argued “|iJndeed as early as 1871 Congress made it

clear that the fitness of applicants for Federal

employment is to be judged on the basis of the

‘character’ of the applicants, as well as upon their

ability to perform the tasks assigned.” Jd. at 3. The

“character of the individual] was one of the factors to be

considered in selecting applicants for appointment to

civil service, so that ‘immoral and unscrupulous men

who lowered the public’s respect for the Service’ might

be excluded.” Jd. at 4.

The Attorney General’s Office ultimately chose not

to appeal.

25

2. The Legacy of Norton v. Macy.

But this did not end the CSC’s obsession with the

case. Indeed, the Commission remained worried about

the impact of Norton v. Macy and Mondello

acknowledged as much:

We have been taking our lumps in the courts on

suitability cases notably those _ involving

homosexuals . . . . We lost most of the cases

because of our inability to meet the Norton case

test which the district courts have accepted as a

requirement of showing on the record that the

outside conduct of a given individual impedes

the efficiency of his job performance or service.

So far we have not had a court case where we

are so correct on the facts that we can present

the Norton issue again in order to obtain a court

ruling that the “efficiency of the service” is a

broader concept than merely the capability of an

individual to perform his particular job.

Memorandum from Anthony L. Mondello to Chairman

Robert Hampton 1 (Mar. 4, 1971), available at http://

www.mwe.com/info/mattachineamicus/document23.pdf.

In April 1971 Mondello again analyzed whether the

Commission could defend its dismissals for homosexual

conduct, concluding that “[tlhe suits appear to be

indefensible and could, if pursued, provide a vehicle for

issuance of legal decisiorfs we could not live with.”

Memorandum from Anthony L. Mondello to Chairman

Robert Hampton 1 (Apr. 6, 1971), available at

http:/Awww.mwe.com/info/mattachineamicus/document

24.pdf. Mondello realized that the CSC could not

defend its own actions in court when the basic question

26

was “what has my private sex life got to do with

working in the Post Office?” or other federal agencies.

Id.

B. The CSC and Later OPM Continue to

Target Homosexuals in the 1970s and

1980s.

By the 1970s, the Commission had reluctantly

slowed its purge of homosexuals from the federal

workforce. The courts forced the CSC to justify

terminations by showing an actual connection between

the conduct and the “efficient performance” of the

federal agency. Letter from Margery Waxman to Rep.

J.J. Pickle 2 (June 26, 1980), available at

http://www.mwe.com/info/mattachineamicus/docume

nt25.pdf. In 1973, the CSC notified federal agencies

that homosexuality was not “per se grounds of

unsuitability.” Jd. (emphasis in original). In 1977, the

OPM — the successor agency to CSC — dropped the

word “immoral” in its policy statements, even though

it retained the power to fire homosexuals for “criminal,

dishonest, infamous or notoriously disgraceful

conduct.” Id. at 2.

By 1980, the General Counsel of OPM, Margery

Waxman, acknowledged that—notwithstanding the

OPM’s continued efforts to include homosexuality as a

basis for discharging a federal employee—“the courts

have shown a clear tendency to be offended by the

removal of low grade employees on the ground of

homosexuality|[.]” Letter from Margery Waxman to

Alice Daniels 2 (Feb. 14, 1980), available at

http://www.mwe.com/info/mattachineamicus/docume

nt26.pdf. Nonetheless, a year later, Waxman wrote

that the “collection of information regarding one’s

27

sexual preference in connection with a national

security investigation is not inconsistent with the OPM

Policy Statement.” Memorandum from Margery

Waxman to Peter Garcia 1 (Jan. 26, 1981), available at

http://www .mwe.com/info/mattachineamicus/document

27.pdf. Even as late as 1981, OPM still considered it

acceptable to inquire into an employee’s private sexual

activities and preferences under the guise of “national

security.” While much had changed by 1981, much had

nonetheless remained the same. And with the

emergence of the AIDS crisis, the adoption of Don’t Ask

Don’t Tell, the Defense of Marriage Act, and the state

marriage bans now at issue, the culture of animus

remains very much in place.

IV. The Case of William Lyman Dew

Demonstrates the Extent of the

Government’s Animus Toward

Homosexuals for Over 65 Years.

Like Clifford Norton, the federal government also

sought to remove William Dew from federal service.

And, like Norton, it was the courts—indeed, this

Court—that provided Dew protection from a

government policy of animus and discrimination.

A. Government Attempts to Purge the

Stain of Homosexuality: The William

Dew Story.

From 1951 to 1955, William Dew served his country

in the U.S. Air Force and became eligible for benefits

pursuant to the Veterans’ Preference Act of 1944, 5

U.S.C. § 851, et seq. (1958). Dew’s initial employment

with the federal government began with the Central

Intelligence Agency (CIA) as a file clerk. Dew uv.

28

Halaby, 317 F.2d 582, 583 (D.C. Cir. 1963). To obtain

the necessary security clearance for this position, the

agency required him to submit to a polygraph

examination. Jd. During that examination, Dew

admitted to having committed at least four “unnatural

sex acts with males” in 1950 when he was

approximately 18 or 19 years old and a college student.

Id. Thereafter, Dew was permitted to resign his

position with the CIA. Jd.

Subsequently, Dew applied to and was accepted for

employment with the Civil Aeronautics Authority

(CAA), the predecessor agency of the Federal Aviation

Authority (FAA). Id. On September 17, 1956, Dew was

appointed as an Airway Operations Specialist, subject

to the standard one-year probationary period and “to

investigation.” Id. After successfully serving in this

role for nearly two years as an air traffic controller in

Denver, well beyond the one-year probationary period

required under federal regulations, and having

received a satisfactory performance evaluation and a

promotion, CAA told Dew that it planned to remove

him from service. Id.

No dc abt, this young air traffic controller with a

bright future, a wife, and a baby on the way, was

shocked when he received the May 14, 1958 letter that

his employer thought him “unsuitable” for his position

“by reason of having engaged in acts of disgraceful

personal conduct.” Letter from W.P. Plett to William L.

Dew (May 14, 1958), available at http://www.mwe.com/

info/mattachineamicus/document28.pdf. The letter

detailed the various pre-employment acts of

homosexuality which Dew had previously admitted. Jd.

at 1. The CAA’s position was that “if known, [these

29

acts] would have barred your appointment.” Jd. The

information had been provided to the CAA following a

“special interview” conducted by Glyndon M. Riley,

Deputy Chief, Personnel Division of the CAA in

Denver. Id. at 2. Dew made no effort to hide his past

acts of same-sex conduct and even signed a statement

verifying the allegations. Jd. On May 26, 1958, the

CAA advised Dew of its decision to terminate him.

Letter from W.P. Plett to William L. Dew (May 26,

1958), available at http://www.mwe.com/info/mattach

ine amicus/document29.pdf.

For the next six years, Dew engaged in a legal

battle with the CAA in an effort to get his job back.

Following his removal, he lost his income and could not

get work. Hr’g Tr. on the Section 14, Veterans’

Preference Act Appeal of William L. Dew 13 (July 23,

1958) [hereinafter Hearing Transcript], available at

http://www.mwe.com/info/mattachineamicus/

document30.pdf. He appealed the removal decisions to

the CAA and the CSC, both of which affirmed. Dew,

317 F.2d at 583. He twice brought suit in the federal

district court in D.C., where he prevailed the first time

on a procedural issue. In 1960, Dew appealed the

agency removal decisions a second time but this time,

the district court granted summary judgment for the

government and upheld the CSC’s removal. In its

decision, the Court noted that “a person who has

engaged in sexual deviation in the form of

homosexuality shows ceftain weaknesses of character,

to say the least.” Br. of Resp’ts in Opp’n to Pet. for

Cert. at 5-6, Dew v. Halaby, No. 458 Misc. (U.S. Oct.

Term 1963) fhereinafter Cox Brief], available at

http://www.mwe.com/info/mattachineamicus/docume

nt31.pdf.

30

In 1962, Dew appealed to the U.S. Court of Appeals

for the District of Columbia, arguing that his removal

was against certain CSC Regulations in place at the

time. Dew, 317 F.2d at 585. The Court of Appeals

ruled against Dew and refused to overturn the CAA’s

authority to “remove an employee when his ‘conduct or

capacity’ is such that his removal will promote the

efficiency of the service” within the meaning of the

Veteran’s Preference Act and the CSC Regulations. Id.

at 587-88. The court relied on “the nature of

appellant’s duties” and the fact that his “position

requires skill, alertness and above all responsibility.”

Td. at 587.

The court, however, mistakenly stated that “the

present case is the unfortunate one of a new employee

with something to hide.” Id. at 588 (emphasis added).

But this was hardly the case. Dew had previously

admitted the underlying sexual acts to both of his

employers, the CIA and the CAA. The Court ignored

these facts, which negated any national security

concerns because there were no secrets for which Dew

could be blackmailed. The Court also ignored expert

psychiatric testimony that Dew did not suffer from a

“homosexual personality disorder,” and that the

incidents at issue were “isolated” and “primarily the

result of his curiosity.” Hearing Transcript, supra, at

7,11. The Court of Appeals, like the CAA and CSC,

also disregarded evidence of Dew’s “rehabilitation” as

demonstrated by the fact that he was happily married

to a woman who was pregnant with their first child at

the time of the initial administrative hearing, and was

pregnant with their third child by the time of the

appeal to the Court of Appeals. Hearing Transcript,

supra, at 13; Br. for Appellant at 6 n.5, Dew v. Halaby,

31

317 F.2d 582 (D.C. Cir. 1963) (No. 16741), available at

http://www.mwe.com/info/mattachineamicus/docume

nt32.pdf. The Court’s bias against Dew and support of

the government’s policy against homosexuals were

evident when it concluded its decision by saying it was

in “no position to say that retention of the appellant,

demonstrated to have evidenced a lack of good character

in the past, would promote, or would not have a

derogatory effect on, the efficiency of the service”

without any basis in the record to draw such a

conclusion. Dew, 317 F.2d at 589 (emphasis added).

B. The Government’s Policy on

Homosexuals.

Unfortunately, this decision was consistent with the

government’s longstanding policy on homosexuals. See

supra Part III; Johnson-Irons Memo, supra, at 1. The

Court of Appeals decision in Dew tacitly approved this

policy by holding “for the first time ... that a

permanent civil service worker, including one with

veteran’s preference, can be fired for pre-employment

acts unrelated to his Governmental service.” Dew, 317

F.2d at 589-590 (Wright, J., dissenting). Judge Wright

called this decision to remove Dew from his position

with the CAA for what it really was:

If this ruling remains the law, no civil service job

is safe. Any civil service worker who becomes

persona non grata with the powers that be may

have some historical research made on his pre-

employment background in an effort to turn up

something ‘disqualifying.’ . .. The mere threat of

this kind of inquiry would be sufficient in most

32

cases to cause the resignation of the worker

marked for dismissal.

Id. at 590 (emphasis in original).

Dew was “marked for dismissal” because of his past

acts of homosexual conduct. But there was no

connection between Dew’s pre-employment conduct and

his satisfactory performance as a civil service

employee, as admitted by the government in every

proceeding. Jd. at 591. Nor was there any evidence to

support a finding that Dew’s past conduct would have

adversely impacted his co-workers which, in turn,

would have had adverse effects on the promotion of the

efficiency of service. Jd. Indeed, “there [was] no

evidence that fellow employees knew of Dew’s prior

acts or found him to be obnoxious.” Jd. at 591 n.12.

Dew was not a homosexual and there was undisputed

expert testimony that he was in all respects “normal.”

Id. at 591.

C. Dew’s Petition to the United States

Supreme Court.

Dew petitioned this Court on August 2, 1963. The

MSDC uncovered the brief in opposition to Dew’s

petition filed by Solicitor General Archibald Cox. The

Cox Brief, supra. In that brief, Cox characterized

homosexuality as a “personality disorder”, and acts of

homosexuality as “acts of disgraceful personal conduct.”

Id. at 3, 6. The Cox Brief further depicted gay people

as deeply disturbing to fellow employees,

notwithstanding the absence of any evidence in support

of this statement, and of questionable reliability to

perform a job dealing with the safety of passengers and

crew of commercial airplanes. Jd. at 6,8. Cox wrote:

33

One reason for such disqualification would be

that petitioner’s prospective co-workers might be

disturbed or adversely affected by the presence

of a person who had committed immoral acts of

the kind here involved. Another reason might be

that the bare commission of these acts raises

legitimate doubts as to petitioner’s reliability.

In either event, it would not be irrational for the

agency to conclude that its efficiency might be

impaired.

Id. at 8 (emphasis added).

Cox attempted to justify rejection of an applicant for

civil service “with a history of this kind” even where the

history is not made known until after the start of

employment. Jd. Cox acknowledged that Dew’s work

performance was satisfactory, a fact that was never

disputed, and while this was “some evidence of his

reliability, [this] does not completely overcome the

doubts concerning strength of character which are

raised by his earlier willingness to engage in the

questionable activity.” Id.

Cox made no attempt to cover up the animus

inherent in the government’s treatment of Dew and

“his kind”:

Nor does the undisputed fact that petitioner

does not now manifest any homosexual

personality disorder . .~ fully rebut the inference

that he is more susceptible to the temptations of

immoral and disgraceful conduct than others.

Id. On February 17, 1964, the United States Supreme

Court granted Dew’s Petition for Certiorari.

34

D. The Government Settles with Dew and

Strengthens Its Policy On Homosexuals.

In December 1964, the Solicitor General’s office and

the CSC settled with Dew following the granting of

Dew’s petition by this Court. See Stip. for Dismissal of

Writ of Cert., Dew v. Halaby (U.S. Oct. Term 1964) (No.

64), available at http://www.mwe.com/info/mattachine

amicus/document33.pdf. Dew was reinstated and

received “$12,000 in back wages, ‘so justice can be

done.” See James Ridgewey, The Snoops: Private Lives

and Public Service, The New Republic, Dec. 19, 1964,

at 13, 17, available at http://www.mwe.com/info/matta

chine amicus/document34.pdf. Halaby, the FAA

Administrator and one of the named respondents in

Dew’s case, said that “[rjecent tests had shown that

Dew is ‘fully rehabilitated and competent ... and

should not be scarred for life for a youthful mistake.”

Id. at 17. This was the same information known to the

government at the outset of its investigation. The

government offered no explanation for the departure in

the Dew case from its own policy on rehabilitation.

In reality, Cox and the CSC settled with Dew to

avoid having to test the government’s position that it

may remove a preferred veteran based on pre-

employment acts. Jd. Worse still was the concern that

the government’s investigations and policies regarding

its suitability standards for employment would come

under scrutiny and attack.

Indeed, the government’s “pardon” granted to Dew

on the heels of this Court’s grant of certiorari only

served to fuel governmental animus toward actual and

perceived homosexuals for many years to come.

35

Indeed, many viewed the outcome of the Dew case

as a setback for the CSC. A few days following the

settlement, Meloy wrote to Johnson regarding the

CSC’s methods of removing homosexuals from service.

See Memorandum from L.V. Meloy to Kimbell Johnson

(Dec. 24, 1964), available at http://www.mwe.com/info

/mattachine amicus/document35.pdf. Meloy specifically

referenced the Dew case in the memo noting “there is

much we can do in house with respect to cases

involving immoral conduct.” Jd. at 2. Meloy further

noted that the existing suitability standard provided

for consideration of a person’s rehabilitation and

offered that Cox “thought the record in the Dew case

contained sufficient evidence of rehabilitation that he

was unwilling to support the government’s position

before the Supreme Court.” /d. at 3.

On January 12, 1965, a few weeks after the

settlement, high-ranking members of the CSC met to

discuss the issues connected with the government’s

homosexual investigations, and in particular, “Dew v.

Halaby—its significance in terms of both policy and

appeals procedures.” See Routing Slip Memorandum

from L.V. Meloy to O.Glenn Stahl (Jan. 8, 1965),

available at http//Awww imwe.com/info/mattachineamicus/docum

ent36.pdf. In connection with this January 12, 1965

meeting, Johnson prepared a memo outlining the

evolution of the CSC’s “policy on homosexuality.” See

id. Following the January 12, 1965 meeting, the

suitability rating standa?fd for employment with the

government was enhanced with a view toward

“requiring more evidence to reach a conclusion of

homosexuality or sexual perversion” to “strengthen the

record and lift it out of the realm of supposition and

conjecture.” Memorandum from L.V. Meloy to Kimbell

36

Johnson and QO. Glenn Stahl (Jan. 13, 1965), available

at http://www.mwe.com/info/mattachineamicus/docum

ent37.pdf. Meloy offered, “At least it is worth a try.”

Td.

Other members of the CSC must have agreed with

Meloy. The CSC followed Meloy’s recommendation, and

changed its rating standard for homosexuals to “make

it plain that there must be clear and definite

information to support a conclusion of homosexuality or

sexual perversion.” See CSC, Rating Standard for

Homosexuals and Sexual Perversion, FPM 731-3 (Mar.

8, 1965), available at http://www.mwe.com/info/matta

chine amicus/document38. pdf.

The lessons learned by the government from the

Dew case had nothing to do with accepting diversity in

the American workforce or employing the best people

for the job. Rather, the Dew case taught the

government that it had to tighten its procedures and

find other ways to continue to ban LGBT Americans

from public employment. The government

demonstrated its willingness to use all of its resources

to crush homosexuals and those who engaged in

homosexual acts with its suitability standards. Never

was a case of animus against a group of citizens so

obvious, and the irony is that Dew was not even a

homosexual.

37

E. Why the Dew Case and Other Official

Acts of Animus Remain Relevant.

The Dew case is important for another reason as

well—one that goes to the heart of the cases now before

this Court. For decades, there was no limit to the

animus meted out against LGBT Americans and no end

to its reach. It poisoned every institution in the United

States and seeped into the lives of all Americans, not

merely those of gays and lesbians. So too, the language

of animus became commonplace among those in the

highest positions in government: “homo,” “sexual

deviant,” “pervert,” “abomination,” “uniquely nasty,”

and other derogatory terms and phrases were used

with bureaucratic ease as a way to define, cabin, and

limit the citizenship of LGBT Americans. As the Dew

case perfectly illustrates, the animus even extended to

those who were not gay.

It was the courts—and in the case of Dew, this

Court—that ultimately stepped in to set the course

right. This Court knows animus when it sees it, and it

has a well-established line of cases overturning laws

that by their text, background history, and effect,

relegate a class of citizens to second-class status. See,

e.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence uv.

Texas, 539 U.S. 558 (2003); and United States v.

Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court

has already recognized the long history of

discrimination and animus against homosexuals. See,

e.g., Lawrence, 539 U.S. at 571.

The newly revealed documents cited herein merely

reinforce what this Court already knows. For decades,

there was a culture of animus against LGBT

Americans that permeated every aspect of American

38

life and every American institution. In many places,

that culture continues to this day. To say that the

marriage bans now at issue are not somehow the

product of this historical animus is to ignore reality.

We may not see the air that feeds the flame. But, for

decades, animus against LGBT Americans fed the

flames of hatred, revulsion, and disgust from which the

current marriage bans arose.

CONCLUSION

For the reasons set forth above and in the briefs of

the Petitioners, this Court should reverse the decision

of the Sixth Circuit.

March 6, 2015 Respectfully submitted,

PAUL M. THOMPSON

Counsel of Record

Lisa A. Linsky

Melissa Nott Davis

Michael R. Huttenlocher

Mary D. Hallerman

Ryan O. Leske*

Krista Meany

MCDERMOTT WILL & EMERY LLP

500 North Capitol Street, NW

Washington, DC 20001

(202) 756-8000

Attorneys for Amicus Curiae

*Not admitted to practice in the District of Columbia;

supervised by McDermott Will & Emery LLP partners

who are members of the District of Columbia bar