Argument (4)

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 v. 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. Id. 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. Id.

Subsequently, Dew applied to and was accepted for employment with the Civil Aeronautics Authority (CAA), the predecessor agency of the Federal Aviation Authority (FAA). Id. On September 17, 1956, Dew was appointed as an Airway Operations Specialist, subject to the standard one-year probationary period and “to investigation.” Id. After successfully serving in this role for nearly two years as an air traffic controller in Denver, well beyond the one-year probationary period required under federal regulations, and having received a satisfactory performance evaluation and a promotion, CAA told Dew that it planned to remove him from service. Id.

No 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). The letter detailed the various pre-employment acts of homosexuality which Dew had previously admitted. Id. at 1. The CAA’s position was that “if known, [these acts] would have barred your appointment.” Id. 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. Id. 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).

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]. 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 certain 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) [hereinafter Cox Brief].

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.” Id. 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, 317 F.2d 582 (D.C. Cir. 1963) (No. 16741). 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 preemployment background in an effort to turn up something ‘disqualifying.’ . . . The mere threat of this kind of inquiry would be sufficient in most 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. Id. 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. Id. Indeed, “there [was] no evidence that fellow employees knew of Dew’s prior acts or found him to be obnoxious.” Id. 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. Id. at 6, 8. Cox wrote:

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. Id. 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.

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). 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. Halaby, the FAA Administrator and one of the named respondents in Dew’s case, said that “[r]ecent 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 preemployment acts. Id. 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.

Indeed, many viewed the outcome of the Dew case as a setback for the CSC. A few days following the settlement, Meloy wrote to Johnson regarding the CSC’s methods of removing homosexuals from service. See Memorandum from L.V. Meloy to Kimbell Johnson (Dec. 24, 1964). 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.” Id. 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.” Id. 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). 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 standard 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 Johnson and O. Glenn Stahl (Jan. 13, 1965). Meloy offered, “At least it is worth a try.” Id.

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).

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.

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 v. 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 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.

 

Next: Conclusion


7 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).

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