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federal policy toward gay and lesbian employees since the Cold War

by Gregory B. Lewis

Although the military's ban on lesbians and gays has generated considerable political controversy, many people remain unaware that the federal government also prohibited the employment of gays in the civil service until 1975. This article provides a brief history of the political, bureaucratic, and judicial forces involved in the creation, implementation, and elimination of that prohibition. Though the policy apparently stretches back to the early days of the Republic, its importance exploded in the Cold War hysteria of the 1950s, when "sex perverts" in government erupted as a public policy issue that merged concerns about national security and moral purity. Under pressure from Congress, the U.S. Civil Service Commission and the Federal Bureau of Investigation (FBI) developed techniques to purge lesbians and gay men from the civil service. These bureaucratic efforts persisted long after the political issue had died down. The courts slowly undercut the government's blanket exclusion of homosexuals from federal employment, eventually demanding that the bureaucracy demonstrate a rational connection between homosexual conduct and the efficiency of the service. Although the Civil Service Commission resisted employing homosexuals for years, it institutionalized the policy change in 1975, and recent progress toward guarantees of equal treatment for gay and lesbian federal employees has occurred primarily through the bureaucracy.

Homosexuals Emerge as a Personnel Policy Concern

The federal government has traditionally required that its employees be of good moral character, a standard that historically excluded known homosexuals. Regulations have long instructed the bureaucracy to deny examinations to applicants, refuse appointments to eligibles, and remove incumbent employees from their jobs for "criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct" (U.S. Civil Service Commission, 1941, 37). We know of isolated dismissals for homosexuality long before the Cold War. (The Interior Department fired Walt Whitman in 1865 and the Post Office discharged the founder of the country's first homosexual political organization in 1925. See Katz, 1976).

It is not clear how actively civil servants attempted to prevent the employment of lesbians and gay men, however. A U.S. Senate report (1950, 10) charged that "some officials undoubtedly condoned the employment of homosexuals ... particularly ... where the perverted activities of the employee were carried on in such a manner as not to create public scandal or notoriety."

By 1950, however, many in the Senate were impatient with "the false premise that what a Government employee did outside of the office on his own time, particularly if his actions did not involve his fellow employees or his work, was his own business" (U.S. Senate, 1950, 10). The problem began with a list of "admitted homosexuals and suspected perverts" sent by a Senate Appropriations subcommittee to the State Department in 1947 (Wherry, 1950, 1). In early 1950, a State Department official testified before that subcommittee that 91 "sex perverts" had been allowed to resign in the previous three years, and that some had subsequently been reemployed by other federal agencies. The Republicans launched blistering attacks on the Truman administration both for employing these people and for allowing them to resign without permanent blots on their records (although taboos on discussing homosexuality severely limited the publicity). The chairman of the Republican National Committee sent an open letter charging that "the sexual perverts who have infiltrated our Government in recent years ... [were] perhaps as dangerous as the actual Communists" ("Perverts," 1950).

Republican Senators Wherry and Hill formed a subcommittee to study the issue and called in the experts -- military investigators and the Washington, DC, morals squad. These experts "testified that moral perverts are bad national security risks ... because of their susceptibility to blackmail on threat of exposure of their moral weakness" (Wherry, 1950, 2). This had not been the rationale for the military's ban on homosexuals during the war; indeed, "the words security risk do not appear associated with homosexuality until the late 1940s and early 1950s" (Shilts, 1993, 105), and the navy's secret Crittenden Report, a study of its policies towards homosexuals, attributes the military's concern about homosexuals as security risks to the Senate hearings on the civil service (U.S. Navy, 1957, 8).

Investigators also informed the senators that they had long lists of known or suspected homosexuals; the navy's list included 7,859 names, with 1,740 living in the Washington, DC area, while the army had 5,000 names in that area alone. Lieutenant Blick of the Washington morals squad (which, Wherry complained, had "only four men ... who give their full time to detecting and arresting homosexuals") was able to arrest as many as 65 homosexuals in one night, and most homosexuals could be pressured to give names of other homosexuals. Blick estimated that 5,000 homosexuals lived in Washington and that three-fourths of them worked for the government (Wherry, 1950, 5).

Wherry complained that there were inadequate safeguards to prevent reemployment of "moral weaklings" forced out of one agency, and that agencies made inadequate use of these lists of homosexuals. The Civil Service Commission responded with instructions to the agencies requiring them to submit detailed reasons for removals or resignations when those reasons could affect employees' suitability for reemployment so that the commission could prevent it if necessary. Commission Chairman Harry Mitchell also suggested that if local police departments would report all morals arrests with sufficient detail to the FBI, then the FBI could give the information to the Civil Service Commission. The commission could then pass the information on to relevant agencies to remove current employees, and the FBI could maintain the lists so that job applicants could be screened against them. Indeed, Blick testified that he was already furnishing names and fingerprints of all morals arrests to the FBI (Wherry, 1950, 9-10).

The Senate followed with a full-scale inquiry by the Hoey Committee to discover "the reasons why their [homosexuals'] employment by the Government is undesirable" (U.S. Senate, 1950, 1). The committee found several reasons. The behavior of homosexuals was criminal and immoral; they lacked emotional stability because "indulgence in acts of sex perversion weakens the moral fiber"; they frequently attempted to seduce normal people, especially the young and impressionable; and they had a "tendency to gather other perverts" around them (U.S. Senate, 1950, 4).

Probably most importantly, homosexuals were seen as security risks. On the one hand, their emotional instability and moral weakness made them "vulnerable to interrogation by a skilled questioner and they seldom refuse to talk about themselves" (U.S. Senate, 1950, 5). (Berube [1990] notes that the skilled questioners had typically been military investigators in positions of authority over suspected homosexuals in the military.) On the other hand, "the pervert is easy prey to the blackmailer"(5). Although the Hoey Committee referred to rings of blackmailers exploiting homosexuals for money, it presented only one example of a homosexual betraying state secrets as a result of blackmail: Colonel Raedl in Austria in 1912. Military intelligence may have presented this as a clear case of homosexual blackmail, but most accounts of the Raedl case suggest that his motive was not blackmail but "money, which he needed to pay for a sybaritic homosexual life" (Buranelli and Buranelli, 1982, 261; see also Rowan, 1939; Dulles, 1963; Ind, 1963; Sith, 1975; and Maclean, 1978). The Hoey Committee also noted several other attempts by "Nazi and Communist agents ... to obtain information from employees of our Government by threatening to expose their abnormal sex activities," but their language implies that these attempts were unsuccessful (U.S. Senate, 1950, 5).

The Hoey Committee was able to report marked progress since the Wherry-Hill inquiry in April 1950. Federal agencies had handled only 192 homosexual cases in the 38 months before the hearings, but they had processed 382 in the next seven months. Two-thirds of the early cases had involved international agencies (the State Department and Economic Cooperation Administration), but efforts to weed out perverts had spread well into domestic agencies after the Senate investigation. FBI checks had also prevented employment for 1700 homosexual applicants between January 1947 and August 1950 (U.S. Senate, 1950, 9).

Still, the Hoey Committee called on agencies to do more to eliminate homosexuals among current employees by aggressively investigating every reasonable complaint. Arrest records were the best starting point for investigations, but there had been inadequate liaison between police and the FBI; not until the Wherry-Hill inquiry had the Civil Service Commission learned the names of 457 homosexual federal employees arrested in the nation's capitol during the previous three years.

Adequate procedures have now been established to

correct this regrettable situation... The FBI [has] obtained

all available police records in the District of Columbia

of persons who had been charged with perverted sex

offenses and this information was furnished promptly to

the Civil Service Commission and the other agencies of

Government. The FBI also began furnishing to the

Civil Service Commission the criminal records of

persons currently arrested by the police throughout the

country on charges of sex perversion who were known

to be Government employees. Upon receipt of that

information the Civil Service Commission transmits the

data to the employing agency and later checks up with

the agency to determine what, if any, action has been

taken in each case (U.S. Senate, 1950, 13).

In September 1946, the secretary of the navy had rejected a proposal to turn the navy's list of homosexuals over to the FBI and other government agencies (Berube, 1990, 264), but that decision was apparently taken out of military hands in 1950.

The use of arrest records was no small problem for gay men. In the postwar years, Berube (1990, 259) reports substantial increases in arrests of lesbians and, especially, gay men for "consensual sodomy, sexual perversion .... public indecency, patronizing a gay bar, touching in public, or wearing the clothing of the other gender." Washington police averaged 1,000 gay-related arrests per year in the early 1950s, and Philadelphia perhaps 1,200 arrests per year (D'Emilio, 1983a). A single jurisdiction within Los Angeles County arrested 1,000 gay men a year in the early 1960s ("Consenting," 1966). In one large sample of gay men in the early 1970s, one-fourth had been arrested on sex-related charges (Weinberg and Williams, 1974, 185).

The situation for lesbian and gay employees worsened during the first 100 days of the Eisenhower administration. President Truman had instituted a loyalty program for federal employees in 1947. In 1951, he changed the standards for dismissal from "reasonable grounds for belief that the person is disloyal" (Executive Order 9835) to "reasonable doubt as to the loyalty of the person involved" (Executive Order 10241; see U.S. Civil Service Commission, 1952, 33). In 1953, Eisenhower ordered that the government could employ and retain employees only when "clearly consistent with the interests of national security" and for the first time listed sexual perversion as a condition demanding removal from the federal service (Executive Order 10450). Similar regulations applied to private sector employees needing security clearances. During the same period, state and local governments were passing similar regulations. Licensing boards restricted homosexuals from many occupations, and private employers banned homosexuals officially or unofficially. Overall, lesbians and gay men were officially barred from at least 20 percent of the nation's jobs (Berube, 1990, 269-270).

The Civil Service Commission's 1954 annual report indicated 618 dismissals under Executive Order 10450 for sexual perversion, and the commission reported 837 cases by June 1955 (Brown, 1958, 114). After 1955, political interest in employment of homosexuals seems to have died down and it becomes harder to find the number dismissed. However, this is no guarantee that the practice of firing homosexuals diminished. In Senate appropriations hearings, the Department of State reported 18 dismissals in 1959, 16 in 1960, 24 in 1961, 24 in 1962, and 45 in 1963. By 1973, when plaintiffs in a lawsuit against the Civil Service Commission requested the number of gay discharges per year, the commission refused, claiming the request was "burdensome and oppressive" (Society for Individual Rights v. Hampton, 63 F.R.D. 399 [1973]). We will probably never know how many gay employees were fired under this policy.

Why Did the Crackdown on Gays Occur?

The fall of Eastern Europe to the Soviet Union and of China to the Communists, the explosion of the Soviet atom bomb, and the conviction of Alger Hiss made Americans warier about their national security, but why did that focus so much attention on homosexuals? D'Emilio (1989) suggests a fear that homosexuals, like Communists, hid their true natures, allowing them to "infiltrate" government in a way other out-groups could not. (One right-wing columnist, cited by Johnson (1994-1995, 50), charged that "an all-powerful, supersecret inner circle of highly educated, socially highly placed sexual misfits in the State Department" controlled foreign policy. Homosexuals were also easier to catch than Communists (they comprised 54 of 66 State Department employees fired under the security regulations in 1950, 119 of 154 in 1951, and 134 of 204 in 1952 (Shilts, 1993, 106)) and were so unpopular that even the American Civil Liberties Union (ACLU) supported prohibitions on their employment.

The extremity of the language used to depict homosexuals suggests that more than national security was at stake, however. A 1950 White House staff memo stated that "the country is more concerned about the charges of homosexuals in the Government than about Communists" D'Emilio, 1983b, 13). Johnson argues that publicity about its dismissals of homosexuals "rendered the State Department a dirty joke" and presents a New Yorker cartoon in which a job applicant assures a potential employer, "It's true, sir, that the State Department let me go, but that was solely because of incompetence" (1994-1995, 47). The government fired many employees with little conceivable link to national security; the vast majority of dismissals of employees and rejections of applicants were on the basis of suitability rather than national security.

Johnson (1994-95, 46) argues that the ban on gay employees reflected an underlying anxiety over the bureaucratization and urbanization of Washington, changes largely precipitated by the New Deal and World War II." The great increases in the size of the federal bureaucracy "offered a haven for deviants .... Like Communism itself, bureaucracy raised the specter of a face-less, gender-less, family-less welfare state. Homosexual civil servants were seen as the natural conclusion of this frightening trend" (51).

The dramatic social changes brought on by World War II helped build the gay community and increased the general society's perception of it (D'Emilio, 1983a; Berube, 1990). After the war, Americans had to deal with "deep anxieties ... about the disruptive effects of World War II on family life, sexual mores, and gender norms" (Chauncey, 1993, 175). D'Emilio describes a new "politics of personal life tailored to restore a different form of domestic tranquility": a generous GI Bill of Rights, federal home mortgages, and a propaganda campaign pressuring women out of the workforce, "and extolling the virtues of marriage and childrearing" (1989, 236).

The dark side included "a genuinely national hysteria in the winter of 1949 to 1950" about sex murders of women and children, fed by grisly newspaper stories which indicated that the murderers were "men who had lost control of deviant sexual impulses" (Chauncey, 1993, 163, 161). Newspaper coverage suggested that all sexual deviates had the potential to degenerate into sexual psychopaths, and "press campaigns against sex criminals frequently turned into campaigns [and crackdowns] against homosexuals" (Chauncey, 1993, 172). Between 1947 and 1955, 21 states and the District of Columbia passed sexual psychopath laws, and "the terms child molester, homosexual, sex offender, sex psychopath, sex degenerate, sex deviate, and sometimes even communist became interchangeable in the minds of the public, legislators, and local police" (Berube, 1990, 258). The women's military services had urged fairness and restraint in dealing with lesbians during the war, but by the 1950s depicted them as "sexual vampires: manipulative, dominant perverts who greedily seduce young and innocent women" (Berube and D'Emilio, 1984, 763).

The Role of the Civil Service Commission

The crackdown against homosexuals began in the Senate and was stoked by the political rhetoric of the 1952 election campaigns. The Civil Service Commission and the FBI expanded their efforts to purge homosexual employees in response to political demands, and the agencies dismissed gay employees when the pressure was high. When homosexual civil servants ceased to be a political issue, the commission stopped gathering information on gay dismissals leaving us with little information about the bureaucracy's continued response.

The public administration community cannot entirely escape responsibility for this period, however. No loud voices arose arguing that homosexuality had nothing to do with merit or neutral competence. Even those who attacked the loyalty-security programs had little to say about homosexuals (e.g., Brown, 1958; Bontecou, 1953). FBI Director J. Edgar Hoover played a leading role in justifying the crackdown and pursued homophile and gay liberation organizations for decades (perhaps in response to a fear that a small homophile magazine, One, would "out" him as a homosexual; see Shilts, 1993, 110).

Efforts to organize homosexuals to fight federal policy proved unsuccessful in the 1950s because of fear of the consequences (D'Emilio, 1983a, 62). A campaign began in the early 1960s after Frank Kameny, an astronomer with a Harvard Ph.D., lost a three-year court battle to retain his job with the U.S. Army Mapping Service. With Bruce Scott, he formed the Mattachine Society of Washington and launched efforts to meet with top government officials to discuss the employment ban (D'Emilio, 1983a, 154). The society argued that homosexuals were a minority group and that federal employment policies toward gays were equivalent to racial discrimination. Kameny testified before a congressional committee in August 1963, and the society picketed the White House repeatedly in the summer of 1965 (Johnson, 1994-95, 57, 59-60).

The Mattachine Society finally achieved a meeting with a committee from the Civil Service Commission in the fall of 1965, prompting the first full justification of the policy.(1) After the meeting, Commission Chairman John W. Macy, Jr., wrote to the Mattachine Society completely rejecting their contention that the exclusion of homosexuals constituted discrimination against an oppressed minority, and claiming that there was no such thing as a homosexual. Instead, there were only homosexual acts, and the attempt to define people with homosexual inclinations as a minority group was an attempt to excuse them from taking responsibility for their immoral actions (Macy, 1966).

Since the concern was with homosexual acts, the Civil Service Commission needed to investigate the acts in detail to determine whether the "deviate sexual behavior" was "isolated, intermittent or continuing ... aggressive or passive," and to investigate as well a variety of aggravating and mitigating circumstances. They also sought to determine "the extent or effect of rehabilitative efforts, if any, and the admitted acceptance of, or preference for homosexual relations" (Macy, 1966, 44). Since commission policy seems to have been that any homosexual conduct disqualified an individual for federal employment, it is unclear why this level of detail was needed, but civil service investigators wanted to know names, dates, and locations of sexual contacts as well as the specific sex acts performed (Ridgeway, 1964).

According to Macy, employment of homosexuals impeded "the efficiency of the service" because of:

the revulsion of other employees by homosexual

conduct and consequent disruption of service efficiency, the

apprehension caused other employees by 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,

particularly 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 (Macy,

1966, 44).

As with the military's Justification for its exclusionary policy, Macy did not contend that homosexuals lacked the competence to perform their work successfully. The threats to the efficiency of the service arose from the perceptions and prejudices of coworkers and the public (revulsion, apprehension, and offense). As gay employees cannot control those perceptions, the policy punishes them for others' prejudices. Macy's letter shows that he shared those prejudices and viewed homosexuals as uncontrollably driven by their perverted desires.

Macy took offense at the charge that the Civil Service Commission pried into the private sex lives of applicants or attempted to ferret out homosexual conduct. He contended that the government had no interest in "private sexual behavior between consenting adults." His definition of "truly private," however, was that "it remains undisclosed to all but the participants" (Macy, 1966, 44-45). If gay people were unable to keep their sex or love lives complete secrets from everyone, they became the government's business. In anticipation of todays "don't ask, don't tell" policy, Macy argued that people who publicly proclaimed their homosexuality, especially if they argued that they were not sick or emotionally disturbed, were clearly unsuited for federal employment. "The self-revelation by announcement of such private sexual behavior and preferences is itself public conduct which the Commission must consider in assaying an individual's suitability for Federal employment" (Macy, 1966, 45; emphasis added). In an interview three years later, the Civil Service Commissions Director of Personnel Investigations admitted that homosexual employees were no less efficient than heterosexuals, but argued that since the public still viewed homosexuals as repugnant, the commission should continue to disqualify them "in order to retain public confidence" ("Government-created," 1969, 1742).

The Role of the Courts

Few homosexuals fought their dismissals in court in the 1950s; those who did had little success. The courts at that time adhered to what Rosenbloom and Carroll (1995) call the "doctrine of privilege." This doctrine states that since federal employment was not a right, the government could impose essentially any conditions it chose on that employment. The one relevant protection veterans had was that they could not be dismissed unless the dismissal promoted "the efficiency of the service." However, the courts generally showed great deference to administrators in determining what affected efficiency. In Dew v. Halaby, 317 F.2d 582 (DC Cir. 1963), cert. dismissed, 379 U.S. 951 (1964), an air traffic controller with veterans' preference was fired when evidence emerged that he had "committ[ed] at least four unnatural acts with males ... when he was 18 or 19," eight years prior to his firing (Dew, 583). A psychiatric evaluation showed that Dew was now happily married with a child, was emotionally stable, did not have a "homosexual personality disorder," and was performing successfully on his job. However, his appeals examiner concluded that to require employees to work with persons who have committed acts that are repugnant to established and accepted standards of decency and morality can only have a disrupting effect upon the morals and efficiency of any organization" (Dew, 587). The appellate court saw nothing arbitrary and capricious in firing a competent employee because the civil service demanded "character as well as fitness" and his homosexual conduct, no matter how far in the past, showed a lack of character (Dew, 588).[2]

By the mid-1960s, many courts had begun consitutionalizing public employment cases (Rosenbloom and Carroll, 1995), a trend the Harvard Law Review calls a move from a "private sector" to an "individual rights" vision "Developments," 1984). Gays were a beneficiary of this trend. When Mattachine Society cofounder and federal job applicant Bruce Scott refused to answer unspecified evidence that he was a homosexual, claiming his sexual orientation was irrelevant to his job performance, the Civil Service Commission disqualified him from federal employment based on "immoral conduct." In Scott v. May, 349 E2d 192 (DC Cir. 1965), the Washington DC court of appeals ruled that the immoral conduct charge stigmatized Scott by disqualifying him from federal employment and jeopardizing his chance of finding employment elsewhere. This damaged his liberty interests and required the government to make a more compelling case for its actions. The court ruled for Scott, with Judge Bazelon arguing that the Civil Service Commission had to state how the alleged immoral conduct was "related to occupational competence or fitness"' (Scott, 184-185). However, the concurring opinion only called for greater specification of the immoral conduct charge, and future Chief Justice Warren Burger dissented, arguing that Congress and the executive branch had already decided that homosexual conduct established unsuitability -- the Civil Service Commission need not prove it in each case. While the case pointed the direction for the future, it provided a very weak precedent.

Four years later, the Washington DC court of appeals decided the landmark case, Norton v. Macy, 417 F.2d 1161 (DC Cir. 1969). DC morals squad officers arrested Norton, a NASA budget analyst, for picking up another man in a gay cruising area. Police called the NASA security chief to secretly monitor the lengthy police interrogations, then released Norton to several more hours of questioning at NASA headquarters. Although Norton denied being a homosexual, NASA fired him.

In an opinion written by Judge Bazelon, the court ruled that Norton's sexual conduct was largely irrelevant because "the notion that it could be an appropriate function of the federal bureaucracy to enforce the majority's conventional code of conduct in the private lives of its employees is at war with elementary concepts of liberty, privacy, and diversity" (Norton, 1165). To justify his dismissal, the government must be able to "demonstrate some 'rational basis' for its conclusion that a discharge 'will promote the efficiency of the service'" (1164).

This came to be known as the "rational nexus" test for determining whether an employee could be dismissed for homosexual or other immoral conduct. Although it was a massive step forward, it did not provide unqualified support for gay employment rights. The Norton decision went to great lengths to state that homosexual conduct might be grounds for dismissal in certain circumstances -- blackmail risk, personal instability, offensive overtures, or notorious conduct. "Whether or not such potential consequences would justify removal, they are at least broadly relevant to 'the efficiency of the service'" (Norton, 1166).

In this case, however, Norton was a competent employee, there were no security concerns, his coworkers were unaware of his conduct, and he did not work with the public. The only justification his supervisor gave for firing Norton was that a repeat episode might "turn out to be embarrassing to the agency" (Norton, 1167). Possible embarrassment was not sufficient justification, however. "A reviewing court must at least be able to discern some reasonably foreseeable, specific connection between an employee's potentially embarrassing conduct and the efficiency of the service" (Norton, 1167).

In the short run, the Norton decision had little apparent impact on the Civil Service Commission or the courts. Both continued to find a rational nexus between homosexual conduct and the efficiency of the service based on the weakest evidence. In Vigil v. Post Office Department, 406 F.2d 921 (10th Cir.1969), the court upheld the firing of an assistant janitor, ignoring the Norton decision because Vigil had been convicted while Norton had not. In Schlegel v. United States, 416 F.2d 1372 (Ct. Cl. 1969), the court found the impact of homosexuality on the efficiency of the service to be self-evident: "Any schoolboy knows that a homosexual act is immoral, indecent, lewd, and obscene.... If activities of this kind are allowed to be practiced in a government department, it is inevitable that the efficiency of the service will in time be adversely affected" (Schlegel, 1378). The concurring opinion launched an even sharper attack on the notion that potential embarrassment to the agency should not be grounds for dismissal: "In this context, the word 'embarrassment' may appear to some the understatement of 1969.... The presence of a known homosexual in an executive agency will bring the agency into hatred, ridicule, and contempt, to the grave detriment of its ability to perform its mission" (Schlegel, 1382).

The Courts and the Civil Service Commission

In the early 1970s, changing attitudes began to make the Civil Service Commission's exclusion of homosexuals less acceptable. In the wake of the sexual revolution, the Stonewall riots, and the gay liberation movement, more gays were open about their sexuality; homosexuality was no longer a taboo topic that could be dismissed without discussion. The Washington Post criticized the policy of the Civil Service Commission, arguing that if homosexuals possessed the necessary skills and "if they conduct themselves like other employees with reasonable circumspection and decorum, their private sexual behavior is their own business" ("Fairness," 1971). A gay rights plank was debated before the 1972 Democratic National Convention, with one speaker attacking injustices against gays, such as the $12 million the Civil Service Commission spent annually investigating gay civil servants (Shilts, 1993, 169).

The commission reluctantly recognized the change in the moral climate of the nation. In its 1971 annual report, it bemoaned "the passing of the day when 'living in sin' meant just that to most people," regretted a recent set of court cases that limited its ability to consider the morality of the private lives of both homosexuals and heterosexuals. "This does not mean that indiscreet, promiscuous, notorious, criminal, or illegal conduct will not support disciplinary actions. It will and does" (U.S. Civil Service Commission, 1972, 49). The report indicated that the courts were upholding the principle that the government could not fire employees for being gay, but it also emphasized circumstances that would justify not hiring them.

The definitive change in commission policy came as the result of a class action suit brought in San Francisco (Society for Individual Rights, Inc. v. Hampton, 63 F.R.D. 399 [1973]). A supply clerk, fired because his army discharge papers revealed he was gay, brought suit against the government's blanket exclusion of homosexuals. The court found that the only reason for the dismissal was "the [commission's) view that the employment of such persons will bring the government service into 'public contempt'" (400). The Norton decision had already found that ground to be arbitrary and capricious, and the court required the commission to demonstrate a rational connection between homosexual conduct and the efficiency of the service. "The Commission has not met -- indeed, it has not even tried to meet -- this standard" (Society for Individual Rights, Inc., 401). The court granted class action relief because this was the only way to prohibit the commission "from continuing to ignore the plain holding of Norton" (401). It therefore ordered the commission to "forthwith cease excluding or discharging from government service any homosexual person whom the Commission would deem unfit for government employment solely because the employment of such a person in the government service might bring that service into contempt" (Society for Individual Rights, Inc., 402).

On December 21, 1973, the commission issued a bulletin to all agencies stating that they could not "find a person unsuitable for Federal employment merely because that person is a homosexual," but that they could dismiss or refuse to hire a person whose "homosexual conduct affects job fitness -- excluding from such considerations, however, unsubstantiated conclusions concerning possible embarrassment to the Federal service." Not all agencies got the message immediately. The General Accounting Office (1974) criticized the agencies' inconsistent and lax investigations: "As an example, in one case three witnesses had stated that they suspected the subject of being a homosexual because they had observed him living with a man also believed to be a homosexual. The employing agency considered these testimonies to be inconclusive evidence since none of the witnesses had actually observed the subject committing a homosexual act." On July 3, 1975, a press release from the Civil Service Commission announced that a "significant change from past policy -- resulting from court decisions and injunction [sic] -- provides for applying the same standard in evaluating sexual conduct, whether heterosexual or homosexual." It continued to stress, however, that certain circumstances might justify dismissing a homosexual. The policy did not apply to the FBI or the intelligence agencies.

A major case decided the next year, however, suggested the limits of the Norton decision and the commission's policy change (Singer v. U.S. Civil Service Commission, 429 U.S. 1034 [1977]). Singer, a gay clerk-typist with the Seattle EEOC, was fired in 1972 for "flaunting" his homosexuality by being active in the gay rights movement, kissing a man in public, and applying for a marriage license. The Civil Service Commission upheld the firing because, among other reasons, "You have flaunted and broadcast your homosexual activities ... [and] advocated for a socially repugnant concept" (Singer, 250). The appellate court found that neither the Norton nor the Society for Individual Rights, Inc. decisions prevented the use of homosexual conduct as a basis for dismissal in all cases. Applying a balancing test, the court ruled that "the interest of the Government as an employer 'in promoting the efficiency of the service' outweighed the interest of its employee in exercising his First Amendment Rights through publicly flaunting and broadcasting his homosexuality" (Singer, 256). The Supreme Court vacated the decision the following year but, because the government then dropped the case, the Court did not issue a decision explaining its logic. Subsequent cases suggest that the free speech rights of gay public employees are protected (e.g., Van Ooteghem v. Gray, 628 F.2d 488 [5th Cir.1980], cert. denied, 455 U.S. 909 [1982]).

Action by Gay and Employee Groups

Given this level of protection, the next focus was on obtaining an executive order prohibiting discrimination on the grounds of sexual preference or orientation. In December 1979, Carter aide Anne Wexler told gay leaders that such an executive order was "under active consideration" but, according to Shilts (1993, 333), Wexler and domestic policy advisor Stuart Eisenstadt then recommended against it as politically unwise. No executive order was issued.

Instead, Eisenstadt approached Alan Campbell, the director of the U.S. Office of Personnel Management, about issuing a memorandum in place of an executive order (Campbell, 1993). Campbell's o was essentially a gloss on 5 U.S.C. [section]2302(b) (10) (prohibited personnel practice 10), which prohibits federal employees from discriminating for or against other employees or applicants "on the basis of conduct which does not adversely affect either the employee's own job performance or the performance of others." According to Campbell's memo, this meant that "applicants and employees are to be protected against inquiries into, or actions based upon, non-job-related conduct, such as religious, community or social affiliations, or sexual orientation" (Campbell, 1980). Theoretically, gay employees could fight against an adverse action that they felt was discriminatory by claiming it was a prohibited personnel practice. In practice, few cases have raised this issue.

Pressure continues for an executive order prohibiting discrimination on the basis of sexual orientation in federal employment. In the 1984 presidential campaign, several Democratic candidates discussed such an order favorably (Shilts, 1993, 453). In 1992, Vice President Quayle stated that "the Bush-Quayle administration has a good record in implementing nondiscrimination against gays and lesbians" (Freedland, 1992, A19). Many expected President Clinton to issue an executive order on nondiscrimination in the civil service. Indeed, the first page of briefing books Clinton's cabinet appointees received asked them to consider what steps they would take to protect gay and lesbian employees in their agencies from discrimination (Hattoy, 1993). The debacle of the gays in the military issue, however, indicated the political danger of an executive order.

In November 1993, openly gay congressman Barney Frank wrote to OPM Director James King requesting both clarification on "federal laws and personnel procedures regarding discrimination based on sexual orientation," and a formal notification to all federal agencies about "the state of these rules and procedures." Instead, OPM Director King responded in a letter to Frank. Rather than issuing guidance to other agencies, King stated, "I like to view OPM as a model agency and see my role as working with all of our employees to assure that we conduct ourselves in such a way that other agencies choose to adopt our methods of operation" (King, 1994). He reiterated the Campbell memo, noting that "OPM has long taken the position that [prohibited personnel practice 10] applies directly to discrimination on the basis of sexual orientation." Gay victims of discrimination could appeal through the Merit Systems Protection Board or file a grievance but could not file a complaint through the Equal Employment Opportunity Commission. Though the letter provides guidance to the courts that federal policy prohibits discrimination on the basis of sexual orientation, it was not a stirring condemnation of the practice.

Although a more explicit, government-wide nondiscrimination policy may still be years in the future, federal employee groups have been pushing for such a policy on an agency-by-agency basis. In 1988, the negotiations of the National Treasury Employees Union (NTEU) with the Department of Health and Human Services allowed union members to bring grievances charging discrimination based on sexual orientation. In 1990, the American Federation of Government Employees (AFGE) negotiated a similar agreement with the Department of Housing and Urban Development, which also extended certain benefits to domestic partners of gay and lesbian employees. Department secretary Jack Kemp refused to sign the agreement arguing that the nondiscrimination policy exceeded federal law, but the Federal Labor Relations Authority (FLRA) upheld the agreement, and a federal court upheld the FLRA on appeal. Unions have also extended some protections to gay and lesbian employees in the Internal Revenue Service, Bureau of Alcohol, Tobacco, and Firearms, the U.S. Customs Service, and the Pension Benefit Guaranty Corporation (Freedland, 1992, A19).

Organizations of gay, lesbian, and bisexual federal employees have also emerged in recent years. Federal Lesbians and Gays (FLAG) has existed in San Francisco for several years with similar groups forming in Dallas, Los Angeles, Boston, and New York City. Recently, organization has occurred primarily in the nation's capital. Federal GLOBE (Gay, Lesbian, Bisexual Employees) functions primarily as an umbrella organization, while specific agency groups press for policy changes within their own agencies.

Partly as a result of employee pressure and partly due to sympathetic managers and department heads, several agencies now list sexual orientation in their nondiscrimination policies. These agencies include: the Department of Agriculture, the Bonneville Power Administration, the General Services Administration, Housing and Urban Development, the National Academy of Sciences, the Department of State, the Department of Transportation, the U.S. Information Agency, the White House, the Departments of Jus-tice, Interior, and Commerce, the International Trade Commission, the Small Business Administration, Merit Systems Protection Board, and some regions of the Forest Service and the Park Service. Negotiations are ongoing in several agencies and the situation is changing rapidly. In addition, at least 18 states have policies protecting gay and lesbian employees in state and local government including: California, Connecticut, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.

Conclusion: Where Do We Stand?

What's Ahead?

At the national level, gay men and lesbians have fared poorly when their employment rights have become political issues. When the Republicans attacked the Democrats for being soft on Communism in the 1950s, homosexuals became an easy target for both parties because "sex perverts" were so widely despised that not even the American Civil Liberties Union would stand up for them. The politicians strengthened laws and pushed the bureaucracy to enforce them, and the bureaucratic structure -- especially the Civil Service Commission and the FBI -- continued to enforce the exclusion of gay employees long after the political issue had died down.

Likewise, when the military's ban on gay service members became a political issue in 1993, gays were severely routed by conservative forces. This occurred despite polls suggesting that the issue would be far less controversial than it proved to be. Four Gallup polls from 1977 through 1989, for instance, showed approval for hiring gays into the armed forces rising steadily from 51 to 60 percent. Polls in 1992 generally showed a plurality of the public in favor of lifting the ban. However, polls also showed that large majorities consider homosexual acts to be immoral and that the public is less willing to allow gay people to have homosexual sex than to have equal employment rights. In that context, political support for gay employment rights is likely to be tepid and theoretical, while opposition can be both vocal and fanatic.

Gay and lesbian federal employees have had more success within the court system. While the judiciary was reluctant to infringe on administrative discretion in hiring and firing decisions in the 1950s and 1960s, their decision that administrators needed to show a rational connection between homosexual conduct and the efficiency of the service effectively ended the blanket exclusion of gays from the civil service. To date, however, no court has ruled that homosexuality or homosexual conduct is necessarily irrelevant to employment decisions. Even the key pro-gay cases (Norton and Society for Individual Rights, Inc. ) have emphasized that there may be legitimate reasons for denying employment to gay men and lesbians. Most courts continue to uphold the exclusion of gays from the military and the denial of security clearances for homosexuals (or at least the courts uphold practices that make it more difficult for gays to achieve them). The Supreme Court has clearly ruled that there is no fundamental right to homosexual sodomy (Bowers v. Hardwick, 478 U.S. 186 [1987]). The occasional court has ruled that gays are a suspect or quasi-suspect class (Watkins v. U.S. Army, 875 F.2d 699 [9th Cir. 1988]; High Tech Gays v. Defense Industrial Security Clearance Office, 895 E2d 563 [9th Cir. 1990]) and that laws or regulations having an adverse impact on them require heightened scrutiny. Those decisions have been quickly overturned, however. The Court's recent decision overturning Colorado's Amendment Two (Romer v. Evans, 116 S. Ct. 1620 [1996]) creates more hope for equal protection cases, but gay legal activists remain skeptical about how sympathetic the Court is to gay causes (Keen, 1996).[3]

Recent progress has come about largely through the bureaucracy. The Civil Service Commission fought implementation of the Norton decision for years, but its change in regulations in response to Society for Individual Rights, Inc. v. Hampton and OPM Director Campbell's 1980 memo probably provide the strongest protection that most gay federal employees enjoy. Those with stronger protections have obtained them largely through labor contracts or nondiscrimination policies for single agencies or single divisions within agencies. These protections have generally arisen out of negotiations between unions or gay employee groups and federal bureaucrats. (Civil servants are significantly more likely than the general public to support civil rights for gays and lesbians and less likely to feel that homosexual acts are always wrong; see Lewis, 1990). Department heads appointed by President Bush generally opposed the policy changes, while some Clinton appointees have proactively supported them. These piecemeal, agency-by-agency negotiations and policy changes may eventually provide a strong enough framework, making a presidential executive order prohibiting discrimination on the basis of sexual orientation on a government-wide basis seem a trivial policy change not worth fighting against. In the absence of clear statutory protection for gay employees, these agreements plus a general belief among federal employees that discrimination against lesbians and gay men is wrong are probably the strongest protection.

Gregory B. Lewis is professor of public administration at the American University. His research focuses on employment patterns and factors influencing career dynamics in the federal civil service.

Notes

(1.) I found this letter in the OPM library card catalog under "Homosexuality," but it was clear from the way it was marked that it had originally been filed under "Moral Perverts."

(2.) The Supreme Court agreed to hear the appeal, which suggested that there were limits to the government's power to fire homosexuals, and the government dropped its case, making this the first victory of its sort. However, the Court did not clarify what employment rights homosexuals had.

(3.) The Court remains headed by a man who once argued that whether gay students should be allowed to organize is "akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge the repeal of a state law providing that measles sufferers be quarantined" (Gay Lib v. University of Missouri, 558 F.2d 848 [8th Cir. 1977], cert. denied, 434 U.S. 1080 [1978], 1084).

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