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 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.³ 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).

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,” “[w]hen information is received . . . indicating the person under investigation is a sex deviate, this allegation should be completely and fully developed and the facts reported.” Id. 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 “[a]ll 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.” Id. By the time Eisenhower was elected, therefore, Hoover already was amassing a cache of information to use against homosexual 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 highlyregarded, 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; Esther Tufty, It Was Vandenberg Day; Letter from Dwight D. Eisenhower to Arthur Vandenberg, Jr. (Oct. 11, 1952). 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 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].

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). 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). Eisenhower replied that he was “very distressed” about Vandenberg’s “health” and informed Vandenberg that “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).

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). 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).

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 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 10450.4 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 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 . . . [a]ny 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. 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, “[n]inety-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, 42.5 Indeed, the government used EO 10450 repeatedly to discriminate against homosexuals in the workplace and set an example that states would soon follow.

Next: Argument (3)

³ 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.

⁴ 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). 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)).

⁵ 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.