Today In History, 1969: DC Appeals Court Rules Against Civil Service Commission’s Gay Employment Ban

Jim Burroway

July 1st, 2016

John W. Macy, Jr., Chairman of the U.S. Civil Service Commission

John W. Macy, Jr., Chairman of the U.S. Civil Service Commission

In 1953, in the same year that President Dwight D. Eisenhower signed Executive Order 10450 barring the federal employment of LGBT people (Apr 27) he appointed John Macy to head up the U.S. Civil Service Commission. Macy stayed on that post until 1969, with the exception of one brief period from 1958 to 1961, when he was vice president of his alma-mater, Wesleyan University. While he spoke out against sexual and racial discrimination in government, he was the country most adamant and often nastiest supporter of the gay ban (Sep 28).

Clifford Norton had been a budget analyst for NASA for fifteen years when he was arrested for a traffic violation in 1963. Yes, that’s right. A traffic violation. Here’s what happened. Norton had spent the evening at a Washington, D.C. gay bar and left around midnight. He drove by Lafayette square, a well-known cruising area. He pulled over picked up a guy named Madison Proctor, drove around the square, drop Procter off, and the two drove off in separate cars. Two vice officers at Lafayette Square saw this and followed them. When police caught up with them at Norton’s apartment, they got out of their unmarked and arrested them.

Police took them to the station and grilled them separately for another two hours. Proctor spilled the beans, telling police that Norton had felt up his leg and invited him over for a drink. Norton steadfastly denied that he made any advances toward Proctor. When Norton said he worked at NASA, the interrogators notified Vice Squad head Lt. Roy Blick, who had been the department’s main force in hunting gays in D.C. since 1950 (May 19, Jun 19). Blick called NASA security chief Bart Fugler. When Fugler arrived at 3 a.m., Blick showed him Norton’s arrest record and let him monitor the last 20 minutes of Norton’s interrogation. Norton was released, but given a traffic ticket for going 45 m.p.h. in a 35 zone.

Fulger then ordered Norton to go immediately to NASA for more interrogations. That new round of interrogations lasted until 6 a.m., during which an exhausted Norton admitted he had had sexual experiences with other men in high school and college, had homosexual desires (but only when drunk, he said), and that he might have had sex with another man while drunk (though he claimed he couldn’t remember). NASA promptly fired Norton for “immoral, indecent, and disgraceful conduct” under Eisenhower’s Executive Order 10450. Norton appealed through the Civil Service Commission, to no avail.

Norton remembered reading in the Washington Star about Frank Kameny (May 21), president of the Mattachine Society of Washington, D.C., who had publicly challenged a congressional attempt to strip the group’s license to raise money for gay rights (Aug 8, Aug 9). Norton found Kameny’s number in the phone book, and called for help. Kameny worked with ACLU lawyers Glenn Graces and John Karr to sue the Civil Service Commission and its head, John Macy, in court. The federal judge granted the CSC’s motion for summary judgment.

Norton appealed again, and in 1969, the U.S. Court of Appeals ruled for Norton, saying that NASA and the CSC failed to provide “any reasonable connection between the evidence against him and the efficiency of the service.” In fact, Norton’s immediate supervisor had written to his superiors that he wasn’t worried about Norton’s job performance and wondered “if there was any way around this kind of problem.” If NASA couldn’t claim that Norton’s off-the-job activities affected his on-the-job performance, what else is there? Well, one objection they came up with was “moral grounds.” The court scoffed:

Pronouncement of ‘immorality’ tends to discourage careful analysis because it unavoidably connotes a violation of divine, Olympian, or otherwise universal standards of rectitude. However, the Civil Service Commission has neither the expertise nor the requisite anointment to make or enforce absolute moral judgments, and we do not understand that it purports to do so. Its jurisdiction is at least confined to the things which are Caesar’s, and its avowed standard of ‘immorality’ is no more than ‘the prevailing mores of our society.’ So construed, ‘immorality’ covers a multitude of sins. Indeed, it may be doubted whether there are in the entire Civil Service many persons so saintly as never to have done any act which is disapproved by the ‘prevailing mores of our society.’

All that was left now to justify Norton’s firing was some kind of nebulous “damage” to NASA’s reputation by having a homosexual in the office. The court ridiculed that idea also:

We do not doubt that NASA blushes whenever one of its own is caught in flagrante delictu; but if the possibility of such transitory institutional discomfiture must be uncritically accepted as a cause for discharge which will ‘promote the efficiency of the service,’ we might as well abandon all pretense that the statute provides any substantive security for its supposed beneficiaries. A claim of possible embarrassment might, of course, be a vague way of referring to some specific potential interference with an agency’s performance; but it might also be a smokescreen hiding personal antipathies or moral judgments which are excluded by statute as grounds for dismissal. 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.

The court didn’t strike down EO 10450 entirely however:

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 circumstances 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.’

The CSC complained that the Norton case made their job harder (it was, they whined, an “unwarranted burden on the executive branch”), but it did little to slow down CSC’s pursuit of gay employees. As the CSC’s chief counsel Anthony Mondello put it, if the CSC allowed gays in the government, “there 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.”

So the CSC continued firing gay employees. And why not? After all, it was still up to the fired employee to hire a lawyer, go through the appeals process and take the CSC to court, a process that consumed six years of Norton’s life. When the Civil Service Commission still refused to grant a rehearing, Kameny urged Norton to take it all the way up to the Supreme Court, but by then Norton was down to his last $4 and exhausted. When the commission agreed to pay Norton $100,000 ($655,000 today) and a lifetime pension for wrongful termination, Norton accepted the offer.

But it soon became apparent to the CSC that their anti-gay policy’s days were numbered. Mondello warned in 1971 that the newer cases “appear to be indefensible and could, if pursued, provide a vehicle for issuance of a legal decisions we could not live with.” Which, more or less, is what happened, although the outcome was considerable less dramatic than one might have expected. When Norton v. Macy became the basis for a 1973 class action suit, the CSC formulated a new policy that said that homosexuality was not “per se grounds of unsuitability.” The CSC finally rescinded its anti-gay hiring ban in 1975 (Jul 3), although it reserved for itself the right to fire gay people for “criminal, dishonest, infamous or notoriously disgraceful conduct.” It also defended its right to “(collect) information regarding one’s sexual preference in connection with a national security investigation.”

[Additional source: Lillian Faderman. The Gay Revolution: The Story of the Struggle (New York: Simon & Schuster, 2015): 155-159.]

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