III. 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).
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 national security.” Memorandum from John W. Steele to O. Glenn Stahl 1 (Nov. 17, 1964) [hereinafter Steele Memo]. 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.” Id. John Steele, a supervisor at the CSC, put it this way:
[O]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]. 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 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. . . . [G]enerally[,] 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.” Id. 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 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).
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.” Id. 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.” Id. (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.” Id. 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).
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].
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). 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.” Id. 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 “[s]ociety 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).
In the spring of 1963, the CSC revised its Suitability Rating Examiners Handbook to clarify that homosexual conduct—not perceived “homosexual tendencies”—bars someone from employment. Memorandum from Kimbell Johnson to O. Glenn Stahl (May 20, 1963). 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). Yet, if the person “refrained from [homosexual] activities,” he or she would remain eligible for federal employment. Id. 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[.]” Id.
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 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.”6 Letter from John Macy to MSDC 1 (Feb. 25, 1966). 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 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.” Id. 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.
1. Norton v. Macy
One example is the case involving Clifford Norton, a veteran and budget analyst with NASA.7 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. Id. The officers arrested both men and interrogated them for two hours about their activities and sexual histories. Id. The head of the Morals Squad then telephoned NASA Security Chief Fugler who arrived at 3:00am. Id. Fugler and a colleague then continued to interrogate Norton until 6:00am. Id. 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]. 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 1166-67. While Norton did not pose any security concerns, NASA nonetheless 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.” Id. 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 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). 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 longstanding 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 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 “[i]ndeed 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.” Id. 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.” Id. at 4.
The Attorney General’s Office ultimately chose not to appeal.
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.
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 decisions we could not live with.” Memorandum from Anthony L. Mondello to Chairman Robert Hampton 1 (Apr. 6, 1971). Mondello realized that the CSC could not defend its own actions in court when the basic question 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). 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). Nonetheless, a year later, Waxman wrote that the “collection of information regarding one’s 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). 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.
Next: Argument (4)
6 In attendance for the MSDC were Dr. Franklin E. Kameny and Lilli Vincenz, among others.