Amicus Curiae Brief — Tanco v. Haslam, 135 S. Ct. 1040 (2015) (No. 14-562)
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Supreme Court, US.
FILED
MAR 6 - 2015
Nos. 14-556, 14-562, 14-571, 149574 cF The cLEnK
Bu the Supreme Court of the Gnited States
JAMES OBERGEFELL, et al., Petitioners,
v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT
OF HEALTH, et al., Respondents.
VALERIA TANCO, et al., Petitioners,
Vv.
BILL HASLAM, GOVERNOR OF TENNESSEE, et al., Respondents.
eee ee ee oe ee ew oe we oe wwe
APRIL DEBOER, et al., Petitioners,
v.
RICK SNYDER, GOVERNOR OF MICHIGAN, et al., Respondents.
GREGORY — et al., ‘Sxitienee.
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
McDermott Wii. & Emery LLP
* Not admitted to practice in the
District of Columbia; supervised
500 North Capitol Street, NW
Washington, DC 20001
by McDermott Will & Emery LLP ‘202)756-8000
partners who are members of the pthom pson@m we.com
District of Columbia bar
Attorneys for Amicus Curiae
—_—=--
Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001
Library of Congre
Law Library
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................. ili
INTEREST OF AMICUS CURIAE ............. 1
INTRODUCTION AND SUMMARY OF
PT sectoss ooee eas eeeteneecesteeens 2
DEE icoeéeentseneNesscerenvesenesess 5
I. Recently Released Documents Reveal the
Culture and Language of Animus Against
DTD sccneeséeeueh natoeeees 5
II. Executive Order 10450 Empowers the
Federal Government to Purge Itself of
I oh ih Os as ean 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
DE 6 ekere cee eesetenstesendéayeas 11
Ill. History of the Civil Service Commission ... 13
A. The CSC Office of General Counsel
(OGC): Animus in Specific Cases ...... 20
eee 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
PEE cee eve CeSebeeeeeerenseeseetds 26
The Case of William Lyman Dew
Demonstrates the Extent of the
Government’s Animus Toward Homosexuals
for Over 65 Years .............cceeeees 27
A. Government Attempts to Purge the
Stain of Homosexuality: The William
Cr cs oecceudeardececsnceees 27
B. The Government’s Policy on
PT «ct ccacuaeenedacedceeuses 31
C. Dew’s Petition to the United States
OU «ko 666060006 4466600% 32
D. The Government Settles with Dew
and Strengthens Its Policy On
Cee ee eee eewe eee 34
E. Why the Dew Case and Other Official
Acts of Animus Remain Relevant ...... 37
EE Kec onesendsdcesesesveconeas 38
ill
TABLE OF AUTHORITIES
CASES
Bowers v. Hardwick,
ae oe ee en Ca ll
DeBoer v. Snyder,
mr,ie & Jf. fe )¢ \ ee 2
Dew v. Halaby,
317 F.2d 582 (D.C. Cir. 1963) .......... passim
Lawrence v. Texas,
630 U.S. GES (BOOS) .. ww ccc ccc cccccces 11, 37
Norton v. Macy,
417 F.2d 1161 (D.C. Cir. 1969) .... 21, 22, 23, 25
Romer v. Evans,
ee ug ale ere oot 37
United States v. Windsor,
i a ea a a 37
Vill. of Arlington Heights v. Metro Hous. Dev. Corp.,
ee Lo cee ee. eer ee 4
STATUTES
al elk ea tg ol St i 21
Civil Service Act,
TEE CT ee re 13
Veterans’ Preference Act of 1944,
5 U.S.C. § GB, of ong. (IGGS) .. ww ccc cee ee 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
SE -csceeeeeneesaeesesewesss 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/document3 1.pdf.
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 ..............-56.- 36
Exec. Order No. 9,835, 12 Fed. Reg. 1,935
ae a ee ale ee ee 6, 7
Exec. Order No. 10,450, 18 Fed. Reg. 2,489
PT én o6ee00s 6eeeeencceses passim
Florida Legislative Investigation Committee,
Homosexuality and Citizenship in Florida,
Preface (Jan. 1964), available at
http://www.mwe.com/info/mattachineamicus/d
IEE 6 0 ¢ 606.9406 004 006650 euese 17
Vv
Florida Legislative Investigation Committee,
Untitled Document (undated), available at http
//www.mwe.com/info/mattachineamicus/docu
ET wiseewessS adeeb euses oe been es 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/
st eed sees he eke a Owke OS 8
Letter from Dwight D. Eisenhower to Arthur
Vandenberg, Jr. (Jan. 17, 1953), available at
http://www.mwe.com/info/mattachineamicus/d
EY oceseeeacvecebecadseeessuures 10
Letter from Dwight D. Eisenhower to Arthur
Vandenberg, Jr. (Mar. 3, 1953), available at
http://www.mwe.com/info/mattachineamicus/d
eee 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/document16.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.com/nfo/mattach
ine amicus/document29.pdf ................ 29
Letter from Arthur Vandenberg, Jr. to Dwight D.
Fisenhower (Jan. 13, 1953), available at
http://www.mwe.com/info/mattachineamicus/d
ee aio uec adhe ee baked be eed 9
Letter from Arthur Vandenberg, Jr. to Dwight D.
Eisenhower (Feb. 6, 1953), available at
http://www.mwe.com/info/mattachineamicus/d
EE on ch Gee OSRN eae eee eka bees ee) 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 ................... 7
Vil
Memorandum from J. Edgar Hoover to Clyde
Tolson (Jan. 5, 1953), avatlable at
http://www.mwe.com/info/mattachineamicus/d
Pn. ccnkeneshks 6 eae es eau sees e's 9
Memorandum from Kimbell Johnson to Warren B.
Irons (Jan. 8, 1965), available at http://www.mw
e.com/info/mattachineamicus/document13.pdf
AS Sa hE enh eee gdm henc ta ay eR 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.pdi ................ 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
ES a ere 23, 24
Memorandum from Bernard M. Shanley to
Governor Sherman Adams (Apr. 10, 1953),
available at http://www.mwe.com/info/mattach
ineamicus/documentl0O.pdf ................ 11
Memorandum from John W. Steele to O. Glenn
Stahl (Nov. 17, 1964), http://www.mwe.com/in
fo/mattachineamicus/document12.pdf
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
eee an ekad hed bee ekednens akeueawesene es 27
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,
ERS aaa rae ene Sate NEE EOP eee stew rt ee 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
SET cecccstanaeseeuadeuse eee es 35
rb.
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
CE web GN sk ae ce OCR eRe eR EOE 34
Esther Tufty, Jt Was Vandenberg Day, available at
http://www.mwe.com/info/mattachineamicus/d
ee de a es oe ole eke ae oe 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
i coc li eee eeua web ae te ese eben 18
U.S. Dismissed 355 in Subversive Cases, N.Y.
, g ¢ & Fe sr 12
Vandenberg Forgoes U.S. Post, N.Y. Times, Apr. 14,
a ee ke ake Fecuanitanseaeeewen 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 origina] 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.” Id.
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 ..strumental 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 waited 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,”
“pervertied],” 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, wken 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 FBI's “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,”
“[wljhen 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 “[aJjll 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 regulations and authority. See infra Part III.
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, 7t 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 information 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.” Id.
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/document10. 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 . . . [aJny criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct,
habitual use of intoxicants to excess, drug
addiction, sexual perversion.
Id. § 8(1)iii) (emphasis added). EO 10450 also
leveraged the collection of arrest finger print cards
collected through Hoover’s Sex Deviate Program. 7d.
§ 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,
“(njinety-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
colleagues, 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 would
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:
[Ol]ur 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/documentl3.pdf. For example, as _ of
November 11, 1945, the CSC effectively prohibited the
employment of “proven” homosexuals:
Homosexuals are not considered suitable 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.” Jd. 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, “|plersons 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 in 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
“la] 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.” Jd. 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 and 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. /d. 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. Jd. 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 personne! 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’... .” Id. 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 “[i]f 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. 7d. 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 skill 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.” Jd.
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 “[t]he suits appear to be
indefensible and could, if pursued, provide a vehicle for
issuance of legal decisiorts 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.” Id. (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. /d.
Subsequently, Dew applied to and was accepted for
employment with the Civil Aeronautics Authority
(CAA), the predecessor agency of the Federal Aviation
Authority (FAA). Jd. 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. /d.
No doubt, 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 Ridgeway, 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 “[rlecent 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!l Johnson
(Dec. 24, 1964), evailable 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.” Jd. 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://www mwe.com/nfo/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 O. 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
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.