In the Supreme Court of the United States
October Term, 1960
Franklin Edward Kameny, Petitioner
v.
Wilber M. Brucker, Secretary of the Army, et al., Respondents
Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit
Franklin Edward Kameny prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the District of Columbia Circuit entered in the above case on August 31, 1960. . . .
Questions Presented
1. Should the Court of Appeals be directed to decide the question of whether the Civil Service Commission decision disqualifying petitioner from Federal employment for immoral conduct, on the ground that petitioner was suspected of being a homosexual, is factually, procedurally, legally, and constitutionally valid.
2. Should the Court of Appeals be directed to review upon grounds of fact and substance, the Army Map Service's decision discharging petition for its employment for falsification. . . .
Statement
This is an action, brought by petitioner, an Astronomer, to compel the Secretary of the Army to reinstate him in the position as Astronomer with the Army Map Service, from which he was dismissed on December 20, 1957, and to compel the Civil Service Commission to revoke its action of January 15, 1958, barring him from Federal employment.
The jurisdiction of the District Court was invoked under 28 U.S.C. 1331, 1332, 2201 and 2202; 5 U.S.C. 22-1 and 1009 and Sections 11-305 and 306 of the District of Columbia Code.
Petitioner was hired by the Army Map Service on July 15, 1957, as an Astronomer, Grade GS-9. In applying for this position, he filled out the Government Form 57 (Application for Federal Employment). Question 33 on this form asks:
33. Have you ever been arrested, charged, or held by Federal, State, or other law enforcement authorities for any violation of any Federal law, State law, a county or municipal law, regulation or ordinance? Do not include anything that happened before your 16th birthday. Do not include traffic violations for which a fine of $25 or less was imposed. All other charges must be included even if they were dismissed. If your answer is "yes", give in Item Number 34 for each case, (1) approximate date, (2) charge, (3) place, (4) action taken.
Petitioner responded to question 33 by indicating that the answer was "yes" and to 34 by:
"August 1956; Disorderly conduct; San Francisco; not guilty; charge dismissed." (See Exhibit 10, pp. 15-16, of the Joint Appendix, hereafter citied as "JA", and of the Certified Record, hereafter cited as "CR")
The arrest referred to, occurred on August 29, 1956, while petitioner was briefly in the San Francisco area attending and delivering a paper at a meeting of the American Astronomical Society. The arrest occurred when petitioner, while in a public men's room, and without invitation or solicitation on his part, and without sexual response, had his penis momentarily touched by another man there. The contact was immediately repelled and terminated by petitioner. The incident was witnessed by two police plainclothesmen, observing through a ventilation grill-work. Petitioner was in process of departing from the men's room, alone, when the arrest occurred. In the course of the arrest and booking, petitioner was told by police officers that if his plea were "Guilty", the matter would be quickly disposed of; if "Not Guilty", that he would probably have to remain in the San Francisco area for another week. This petitioner could no do, and so, at the trial the following morning, for much the same reasons of expediency as those for which the average citizen will almost always plead guilty to a traffic violation, regardless of circumstances, petitioner entered a plea of "Guilty", was fined $50.00, and placed under probation for 6 months.
Immediately subsequent to the trial, the probation officer informed petitioner that at the termination of his period of probation, he might apply to the court under Section 1203.4 of the California Penal Code, under which:
"Every defendant who has fulfilled the conditions of his probation * * * shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty * * * and * * * the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. * * * "
In response to repeated and reiterated questions by petitioner, the probation officer informed petitioner clearly and unambiguously that after such action had been taken by the court, he could, thereafter, without fear of accusation of falsification, deception, perjury, or misrepresentation, declare that the plea and verdict were: Not guilty, charge dismissed. Petitioner took the probation officer at his word, and still does.
Pursuant to petitioner's application, the Municipal Court of California for San Francisco, on March 12, 1957, ordered that:
"* * * the period of probation be terminated in the above entitle case, that the plea or verdict of guilty be set aside and a plea of not guilty be entered, and that the information or complaint be dismissed."
Petitioner was informed of this in a document which bore, as its designation of the charge involved, no title, but only "215 MPC". (Ex. 2, JA, p. 9) The correct title of the charge (Lewd and Indecent Acts) had been mentioned in petitioner's presence only once, in the court room, under conditions of great stress; he had neither written record nor memory of it.
Accordingly, in answering Question 34 on the Form 57, and interpreting "charge" as meaning a request for a descriptive title, as distinguished, in his mind, from a number or other such anonymous designation, petitioner wrote what he felt was probably the correct title, and which is the title frequently given to the charge in such cases in the District of Columbia and in many other places. Under "action taken", in accordance with the advice of the probation officer, and in consequence of the court order, he correctly wrote: "Not Guilty; Charge Dismissed." Were he filling out that form again today, almost four years and an accusation of falsification later, he would consider it correct to give the same response, again, to "action taken."
It will be noted that not attempt was made by him to conceal the fact of the arrest, and that information was given which could and did lead those interested directly to the official record of the arrest.
On November 26, and December 5, 1957, petitioner was interrogated by Civil Service Commission investigators. Among other questions, he was asked (JA and CR, pp. 24 and 28):
"Information has come to the attention of the U.S. Civil Service Commission that you are a homosexual. What comment, if any, do you care to make?
"What and when was the last [sexual] activity in which you participated
"* * * have you engaged actively or passively in any oral act of coition, anal intercourse or mutual masturbation with another person of the same sex."
Details of the alleged "information" about petitioner's homosexuality being refused him by the investigators, he replied to this question that:
"I have no comment. It is impossible to offer intelligent or meaningful comment without knowledge of the details of the information."
In response to all three of the questions, he gave answers indicating that he felt that these were matters of his own personal life, having no connection with the government and having no relation to his performance at the position for which he was hired, and therefore no proper business or concern of the agency, of the Civil Service Commission, or of the government and on that account, on principle, he must refuse to answer them.
On December 10, 1957, petitioner was presented with a letter from the Commanding Officer of the Map Service, indicating his desire to dismiss petitioner for falsification of the Form 57, specifically in regard to his answers to Question 33's request for the name of the charge and the action taken. Petitioner replied, on December 12, 1957, refuting the charges. (Ex. 1, JA, p. 7, and Ex. 3, JA, pp. 10-12)
On December 20, 1957, petitioner was dismissed from the Army Map Service, ostensibly upon charges of falsification, but actually upon grounds of his alleged homosexuality (See substantiation under "Reasons for Granting the Writ, below). He orally requested a hearing. This took place, on about 20-minutes notice, on December 23, 1957, before the Commanding Officer and the Chief Personnel Officer of the Map Service. Over 50% of the hearing was devoted not to the charges of falsification at issue, but to the allegations of petitioner's homosexuality. Petitioner then submitted a formal, written appeal to the Map Service. On March 12, 1958, the Map Service affirmed its own judgment, as might well have been expected, since the same two men—the Commanding Officer, and the Chief Personnel Officer of the Map Service—were, in effect, accusers, prosecutors, hearing court, judge, jury, and appeals court. (Ex. 4, JA pp. 12-13, and Ex. 9, JA, pp. 14-15)
Petitioner appealed, informally, up to the Office of the Secretary of the Army, where he was told that their "hands were tied" by the Civil Service action of January 15, 1958 (see immediately below), but that, could that be reversed, they would re-examine the Map Service's decision. In order that the matter not lapse, they suggested that a letter be written to the Commanding Officer of the Army Map Service, indicating petitioner's intention of keeping the matter open and alive. This was done on or about May 1, 1958.
Meanwhile, on January 15, 1958, the Civil Service Commission had declared petitioner unsuitable and ineligible for Federal employment, on grounds of immoral conduct (not further specified) in a letter which stated that petitioner had:
"* * * refused to furnish a statement regarding your moral conduct". (JA, pp. 34-35)
thus implying that petitioner was considered guilty until proven innocent, rather than in reverse, as is usual in this country.
Petitioner appealed on February 14, 1958. The Commission upheld itself on March 17, 1958. (JA, pp. 33-34) Petitioner then decided that "if he were going to be hanged he was going to know what he was being hanged for". After repeated conversations with successively higher officials of the Commission's Investigations Division, and finally with the Executive Assistant to the Chairman of the Commission, he was told, by two officials separately, that there was no specific evidence against him, but that the Commission's decision had been based upon the San Francisco incident and upon "the tone and tenor, but not the gist and substance" of petitioner's replies to the interrogators. Despite repeated and insistent attempts by petitioner, then and later, to obtain further information about the charges against him, this was denied him.
Petitioner then appealed to the Chairman of the Civil Service Commission, on March 30, 1958. On May 15, 1958, the Chairman affirmed the Commission's action, and on June 12, in response to a request of May 16, 1958, refused to reconsider his affirmation. (JA, pp. 32 and 31)
Petitioner then engaged in correspondence on the matter with the then Civil Service Commission Chairman, Mr. Ellsworth, and his successor, Mr. Jones, until April, 1959. He appealed, informally, to President Eisenhower, and various White House staff members, and to various members of Congress, including the Chairmen of the House and Senate Civil Service Committees, all to no avail.
On June 16, 1959, the complaint initiating this case was filed in the U.S. District Court for the District of Columbia Circuit, alleging (1) that petitioner's answer to the Form 57 question was without intent to deceive; (2) that both decisions were, in fact, based upon mere suspicion of homosexuality, unsubstantiated by facts in the possession of the government; and (3) that petitioner had not received the procedural rights due him by statute and regulation. (JA, pp. 2-6)
Respondents filed a motion for Summary Judgment on the ground, basically, that the necessary forms, rites, rituals and ceremonies had been followed, and that the substance and basis for their action was not subject to adjudication by the courts; that it was not for the courts to look behind a decision to dismiss an applicant for Federal employment.
After a hearing on October 23, 1959, on the Summary Judgment motion, the motion was granted without opinion on December 23, 1959. Petitioner appealed, basing his appeal upon the assertion that two triable issues of fact existed; (1) Whether petitioner's answer was made without intent to deceive; and (2) Whether the Civil Service Commission had proper basis for its finding of immoral conduct. After a hearing on May 18, 1960, his appeal was rejected, per curiam, on the ground that (1): The Army Map Service had
"* * * accorded to the appellant all procedural prerogatives required to be extended in the case of temporary appointees, and that valid regulations of the Civil Service Commission authorized appellant's separation from the service."
and (2), that:
"Our decision on this aspect of the case makes it unnecessary for us to consider appellant's contentions with reference to the conclusions reached by the Civil Service Commission". (CR, pp. 42-44; Appendix hereto, infra, pp. 1a-3a)
Petitioner requested a rehearing, on the grounds that both actions against him were constitutionally invalid—that of the Army Map Service because it was arbitrarily against the evidence and the facts; that of the Civil Service Commission (and, in truth, that of the Map Service, as well) because it was based upon a personal discrimination so unjustifiable as to be violative of due process—and that the court had ruled upon neither of these. In regard to the court's express refusal to rule upon the Civil Service Commission's decision, appellant stated in his Petition for a Rehearing (CR, p. 48):
"Appellant has claimed his liberty under law to compete for Government employment on the same basis as other citizens of the United States. By his complaint in this action, appellant alleged facts to support his contention that he was discharged and disqualified not for any want of technical ability, nor for dishonesty in answering questions on his application form, but solely because he was suspected of homosexuality. By his prayers for relief, in his argument below, and in his brief and argument in this court, he has claimed his federally guaranteed right to be free from discrimination based on religious and racial grounds."
The rehearing was denied, and the court's judgment affirmed, without opinion, on August 31, 1960. Petitioner appeals now to this court.
Reasons for Granting the Writ
Preamble to Arguments
(1) This case, involving matters never before examined by the courts, is one of extreme importance to a very large number of American citizens. A rough but probably fair estimate (see substantiation and elaboration under Argument 6 below) of the number of homosexuals in the United States, would have them making up 10% of our population at the very least—perhaps, at least some 15,000,000 people (after infants and young adolescents are omitted). This is a group comparable in size to the Negro minority in our country, and of roughly the same order of magnitude as the Catholic minority; a group some 2½ times the size of the country's Jewish minority, and comparable to the world's Jewish population. It is a group which, in this country, has borne and is bearing the brunt of a persecution and discrimination of a harshness and ferocity at least as severe as that directed against these other minorities, but which persecution instead of being mitigated and meliorated by the government's attitudes and practices, has instead been intensified by them; a persecution and discrimination not one whit more warranted or justified than those against Negroes, Jews, Catholics or other minority groups. This entire large group, broadly and completely heterogeneous as it is, and having in common among its members, physically, intellectually, socially, economically, and otherwise, nothing at all save their homosexuality itself, is barred, in toto, from Federal employment.
It is because the government's policies, particularly in the field of employment, are of such direct and personal concern to so large a minority, that this court is asked to direct that this case, involving, in large measure, a challenge to these policies, be given a full hearing in all of its aspects and ramifications.
(2) It has been argued, particularly in regard to the Army Map Service action, that the discretion of an appointing officer is not subject to adjudication; that as long as the prescribed rites, rituals, forms, and ceremonies of a dismissal are conformed to, the substance and ground of the discharge are not subject to examination by the courts. The courts have upheld this policy on several occasions. It is time that this policy be re-examined and that the realities of the consequences of this policy be looked at with a critical and jaundiced eye.
The government is not just another employer, and discharge from government employment is not discharge from just another job. Appointing officers are subject to all of the failings of other human beings, including, among others, prejudice, personal ambition, submission to pressure by others, cowardice, emotion, and malice. Discharge from Federal employment, unlike other discharge, bears an official stamp, in the minds of the majority of citizens.
Petitioner has, by this discharge, and by this debarment been branded, publicly and (if they are not reversed) permanently, by the majesty of the United States Government, as a dishonest person, and as an immoral person, neither of which he is. And he has been so branded without a shred of fact to bear out the accusations, and, more important, without a chance to defend himself in an impartial hearing.
To say that the victims of actions of this sort, with all of the consequences of such actions, have no recourse in the courts, is monstrous! It is possible, by a stroke of the pen, for one fallible appointing officer, through error, pressure, malice, prejudice, or irresponsibility, to destroy an employee's reputation and his good name, his career and his profession, and to deprive him, often permanently, of his livelihood, with no recourse on his part. That such a state of affairs should be allowed to persist, upon no grounds other than that Federal employment is supposedly a privilege and not a right, seems intolerable. In a government such as ours, any government official should be able to be held accountable and responsible for any of his actions—and especially for those of his actions which are directed at, and directly and personally affect, an individual citizen. That this is not so can lead to abuses of the worst sort—as in this case.
It would seem long overdue that the entire philosophy behind these policies of non-interference by the courts be re-examined.
(3) The Court of Appeals, in their opinion of June 23, 1960, stated, in regard to their decision on the Army Map Service's action, that:
"Our decision on this aspect of the case makes it unnecessary for us to consider appellant's contention with reference to the conclusion reached by the Civil Service Commission." (CR, p. 43)
This is incorrect. A favorable decision on either count, alone, would grant petitioner a measure of relief and justice. A favorable decision on the Civil Service Commission's action would (1) remove an otherwise permanently disabling stigma from petitioner's record, and (2) allow petitioner to follow certain avenues of administrative recourse opened to him by the Office of the Secretary of the Army provided that the Civil Service debarment could be removed. It is thus proper and, in the interest of justice imperative, that the Civil Service Commission's action also be considered by the courts.
(4) Petitioner wishes to call explicitly to the attention of the Court that in the present proceedings, the Court is not, necessarily, being asked to decide any of the issues raised above or below. This is an appeal from respondents' motion for Summary Judgment granted and affirmed by the lower courts. This court is asked, merely, to affirm that issues and questions of sufficient validity and gravity exist to warrant the granting of a full court hearing to the case in all of its aspects.
Petitioner's efforts to achieve justice have miscarried and have been thwarted by the refusal of the respondents and of the courts to face the pertinent issues squarely—or, in fact, to face them at all—and by their reliance upon technicalities and side-issues, indicative either of a fundamental lack of sense of responsibility on these matters, or of a refusal to recognize their importance. It has been abundantly clear that as much as it is in the public interest that many questions and issues relating to homosexuality be dealt with by the government realistically, civilizedly, and directly, the government is not going to deal with these matters at all, in any fashion, (except by further attempts at repression) unless it is forced to do so. Therefore petitioner, in this petition, seeks to attack the problem at its roots and at its sources, by challenging (in part, and within the framework of the circumstances of this case) the propriety, the legality, and the constitutionality of the government's practices, procedures, and policies in regard to the employment of homosexuals. . . .
In World War II, petitioner did not hesitate to fight the Germans, with bullets, in order to help preserve his rights and freedoms and liberties, and those of others. In 1960, it is ironically necessary that he fight the Americans, with words, in order to preserve, against a tyrannical government, some of those same rights, freedoms and liberties, for himself and for others. He asks this court, by its granting of a writ of certiorari, to allow him to engage in that battle.
Arguments
(1) The Argument of Fact
(a) Petitioner has been declared unsuitable by the Civil Service Commission, upon grounds of immoral conduct. By statement of more than one Civil Service Commission official, the only bases for this accusation were (1) the incident in San Francisco and (2) "the tone and tenor, but not the gist and substance" of petitioner's remarks to the Civil Service Commission's interrogators (The phraseology quoted was orally submitted to, and was approved, verbatim, by the Commission officials in question, as summarizing, fairly, properly, and accurately, the basis for their action). (JA, pp. 39-40)
By basis (2) can only be meant (and this was clearly indicated to petitioner in his conversations with Commission officials) that the Civil Service Commission resented bitterly having been told by Petitioner, that in his view his personal life, during non-working hours, and also prior to the date of his employment, was no proper business or concern of his employer, of the government, of the agency, or of the Civil Service Commission. This leaves (a) the incident in San Francisco, and (b) the unproven assumption that petitioner is a homosexual as the only bases for the Commission's action.
The San Francisco incident is not proper basis for the Commission's action for several reasons. First, whatever the formal legal aspects of that situation may be, petitioner, as the object of an unexpected and unsolicited assault, was guilty of no immoral conduct here. In point of fact, no immoral conduct occurred at all, on the part of either party to the incident, nor would it have been immoral even had petitioner solicited the assault. Illegal conduct (not an issue here) may conceivably have occurred, but not immoral conduct. It is essential that, throughout this case, a sharp and clear distinction be made and maintained between immorality and illegality. This distinction will be maintained throughout this petition.
Secondly, the incident occurred long before petitioner was hired or had ever applied for Federal employment. It was not one of a series of such incidents, but stood quite alone. it did not, therefore, indicate a continuing course of conduct which had led, or could have led to a series of such arrests. . . . In the present case, it is amply clear that the Commission considers the incident as an indication that petitioner is a homosexual. . . .
It should be pointed out, too, that, whatever the formal, strictly legal significance of the government's action, it amounts, in actual fact, to severe and harsh punishment for petitioner. If such punishment be administered on the ground of the San Francisco incident, then petitioner, who paid once whatever penalty society, through the California courts, prescribed, and who was ultimately declared not guilty, is being, again, further penalized by society, and in an extremely harsh manner. This is not justice as this country conceives of it.
(b) In regard to the Army Map Service accusation of falsification, no falsification occurred. No evidence presented by respondent has shown it to have occurred. Petitioner answered, in a fashion consistent with the information he had at hand, and with the advice given him by the California probation officer, and in a manner which clearly and easily led the Civil Service Commission to the source of full information on the incident. There was plainly no attempt to conceal or to falsify.
Had petitioner intended to falsify, he would have answered question 33 on the Form 57, with "No", and would have hoped that record of the arrest would not have been discovered. But, given the present climate of suspicion and persecution, in which any admission of an incident such as this could, with certainty, be expected to be pounced upon and explored to its fullest, it would have been the height of folly and the depth of stupidity to admit the arrest and then to falsify details, which, with assurance, would have been discovered anyhow.
The Army Map Service charge was a "trumped up" one, brought in collusion with the Civil Service Commission. Petitioner was told by officers of the Map Service that he was actually being discharged because of alleged homosexuality. Petitioner was also told, by officers of the Map Service, that they had been told by officials of the Civil Service Commission, in regard to petitioner, that "If you don't get him, we will." They both did!
Factually, there is no evidence of falsification because there was no falsification. More than half of the so-called hearing granted to petitioner by the Map Service, was devoted to his alleged homosexuality, even though the charge to be examined at the hearing was falsification.
Thus, factually, both counts of respondents' case are totally unsupported. Neither immoral conduct, nor falsification occurred, respondents' allegations and accusations notwithstanding.
This alone is sufficient to invalidate the action of both the Civil Service Commission and the Army Map Service. But we have:
(2) The Argument of Procedure
Even were the Civil Service Commission's action factually supported (as it is not) however, the action ins procedurally incorrect. . . .
It has been made evident, by insinuation, implication, innuendo, and deduction, since the outset of the proceedings, in 1957, that the basis for both the Civil Service Commission action, and the trumped-up Army Map Service charge, was petitioner's alleged homosexuality. However, despite repeated requests—in fact, demands–by petitioner, he has never been explicitly and formally informed, by the Commission, of the nature of his alleged immoral conduct. Setting aside considerations of the degree of possibility or impossibility of such rehabilitation, petitioner cannot and could not seek or attain rehabilitation from that of which he was never informed, and of the nature of which rehabilitation itself he was also never informed. It was his right to receive such information in a formal manner. He was refused it. . . .
Thus the Civil Service Commission, by its own refusal to supply this information, formally and explicitly, has frustrated its own avowed and only purpose for its debarment action, and has, thus and thereby rendered the action necessarily futile, merely (and by its own statement, improperly) punitive, and, therefore, arbitrary and capricious.
This alone is sufficient to invalidate the Civil Service Commission's action. But we have:
The Civil Service Commission's Faulty Regulation
(3) The Argument Against the Validity of the Commission's Regulation
Even were the Commission's action factually supported, and procedurally correct (as it is not), however, the regulation under which the action is taken is invalid.
The regulation (5 C.F.R. 2.106(a)(3)) indicates, as ground for a decision of unsuitability, "immoral conduct", not further specified.
But what is immoral conduct?
Petitioner asserts, flatly, unequivocally, and absolutely uncompromisingly, that homosexuality, whether by mere inclination or by overt act, is not only not immoral, but that, for those choosing voluntarily to engage in homosexual acts, such acts are moral in a real and positive sense, and are good, right, and desirable, socially and personally. The regulation, as it stands, does not say petitioner nay to this assertion. In fact, upon examination, the regulation will be seen not to say anything at all. . . .
There are those, and in negligible number in this country, who considering dancing, drinking of alcoholic beverages in any quantity, however small, and other commonplace acts (even, in some instances the drinking of tea and coffee) as immoral. There are those who consider nothing immoral which they can "get away with". There is a very widely-held body of opinion which takes a middle-ground view that any act which does not hurt or harm others or interfere with others against their will, is not immoral.
How is the citizen, reading this regulation to know where he stands? He cannot possibly know. The regulation is being interpreted at a whim and caprice of the Civil Service Commission officials. Will they, next year, term as immoral left-handedness, red-headedness, a liking for horse-meat steaks, or membership in either political party or in none at all? . . .
The present regulation serves merely as a catch-all, which enables the Commission officials of the moment to indulge their personal prejudices (or those of their prejudices which they believe they can safely indulge in this context). This will be demonstrated further in Argument 6, below.
This court and others have thrown out laws relating to obscenity, because those laws were too vague and inexplicit. A less explicit regulation than this one would be hard indeed to find.
This the Civil Service Commission's regulation is too broad and vague to have legal weight or meaning, or to convey to the citizen any useful intelligence or to be implementable except in a totally arbitrary and capricious manner as was done here, and hence is invalid.
This alone is sufficient to invalidate the Civil Service Commission's action. But we have:
(4) The Argument Against the Constitutionality of the Civil Service Commission's Regulation
Even were the Civil Service Commission's action factually supported, and procedurally correct, and its regulation legally valid (as they are not), however, the regulation invoked here is unconstitutional under the First, Ninth, and Tenth Amendments to the Federal Constitution.
Any decision as to morality and immorality is a matter of a citizen's personal opinion and his individual religious belief.
For the Commission—or any other agency or branch of the government—to declare a course of conduct immoral, and to act upon that declaration, is for it to attempt to tell the citizen what to think and how to believe. This the government may not do under the First Amendment to the Constitution. . . .
For the government to subscribe, in this explicit fashion, to a particular definition of immoral acts is tantamount to its establishing certain religious beliefs and discarding or disowning others, and to setting up an implicit religious test for the holding of public employment. Granted that these beliefs may be those of a majority (albeit a diminishing majority) of the public, and granted that in certain cases (gain, within the restricted framework of this argument only) the government may base specific law, statute and regulation upon such beliefs about morality, still, the government may not, by the First Amendment, take an explicit stand upon the immorality itself of certain acts.
The explicit substance and fabric of our government are written law, not morality, whatever may be the real or ostensible implicit basis beneath that law, and it is within the framework of legality and illegality, not morality and immorality, that the government must actually function. The Civil Service Commission has not done so, and is not doing so now.
Thus the Commission's regulation, as it stands, is unconstitutional, in that, by establishing a tyranny over the mind of the citizen, it is inconsistent with and violates the provisions, stipulations, spirit, and intent of the First Amendment to the Federal Constitution.
Under the Ninth Amendment to the Constitution, "the enumeration of certain rights shall not be construed to deny or disparage others retained by the people".
Under the Tenth Amendment to the Constitution, "The powers not delegated to the United States by the Constitution * * * are reserved * * * to the people."
It is indisputable that the citizen has the right and the power to decide for himself, individually, what is moral and what is immoral (as distinguished, again, from what is legal and what is illegal). Nowhere in the Constitution is Congress, or any other branch, agency, or officer of the Federal government given, directly or by implication, the power to decide what is and what is not moral and immoral.
Therefore (1) because the right of the individual citizen to decide for himself matters of morality is not explicitly granted (except under the First Amendment) but is not explicitly denied, and is therefore, under all circumstances retained by him, and (2) because the power to make such decisions is not delegated to the United States, hence is reserved to the citizen, the Commission's regulation is unconstitutional in that it violates the stipulations, spirit, and intent of the Ninth and Tenth Amendments to the Federal Constitution.
This alone is sufficient to invalidate the Civil Service Commission's action. But we have:
The Civil Service Commission's Faulty Policies
(5) The Argument That the Civil Service Commission's Policies Are Improperly Discriminatory
Even were the Civil Service Commission's actions factually supported, and procedurally correct, and its regulation legally valid and constitutional (as they are not), however, the policies underlying its action and regulation are invalid because they are arbitrarily and capriciously discriminatory.
Homosexuality, as a state of being, is not illegal in the District of Columbia, where petitioner (and a high percentage of other Federal employees) is resident (Rittenour v. District of Columbia, 163 A. 2d 558 (Mun. App. D.C. 1960)).
Further, many, if not most homosexual acts, actions, and activities (including among others, such homosexual, but non-strictly sexual acts as dancing and kissing between members of the same sex) are not illegal in the District of Columbia (Rittenour v. D.C., ibid; lack of specification in D.C. Code).
However, such acts—or even the simple state of being a homosexual, or, in fact, of sharing an apartment with a homosexual—which acts residents of the District of Columbia may (legally) freely perform—or in which state they may exist—without proper official legal censure or punishment, subject the Federal employee to the severe penalties of loss of employment, loss of career, and official designation as an immoral person.
This clearly makes of the Federal employee a second-class citizen, since, upon pain of severe penalty, he may not engage, in his own time, and in his own private life, in activities in which all other citizens of the District of Columbia may freely and legally engage, and, in fact, he may not even arrange his life, or exist in a state legal to all residents of the District. . . .
Thus the Civil Service Commission's policy on homosexuality is improperly discriminatory, in that it discriminates against an entire group, not considered as individuals, in a manner in which other similar groups are not discriminated against, and in that this discrimination has no basis in reason, is inconsistent with other policy and practice, and thus is plainly arbitrary and capricious.
This alone should be sufficient to invalidate the Civil Service Commission's action. But we have:
(6) The Argument of Reason
Even were respondent's actions factually supported and procedurally correct, their regulations legally valid and constitutional, and their policies properly non-discriminatory (all of which they are not), however, the policies underlying their actions are invalid because they are neither reasonable, rational, realistic, consistent with other policy, nor in the national good or in the interest of the general welfare.
The citizen should be able to expect that the laws, regulations and policies under which he lives—particularly those which affect him individually and personally—will meet the test of reason. Not only are the Civil Service Commission's policies on homosexuality not pervaded by a discernible thread of reason, but they seem pervaded by a thread of madness. In their complete negation of the realities around us, they remind the observer of an excerpt from a nightmare of an inmate of a lunatic asylum. In their form and in their practice, they border upon, if they do not actually over-step the bounds of the psychopathic.
More important, in their being nothing more than a reflection of ancient primitive, archaic, obsolete taboos and prejudices, the policies are an incongruous, anachronistic relic of the Stone Age carried over into the Space Age—and a harmful relic! Let us examine them.
Accordingly to Kinsey, Pomeroy, and Martin (Sexual Behavior in the Human Male, pp. 650 ff.) (a) 30% of all males, married and single, have at least incidental homosexual experience over at least a three-year period between the ages of 16 and 55, and (b) 25% have more than incidental experience. . . (c) At least as much homosexual as heterosexual experience has been had for at least three years between the ages of 16 and 55 by 18% of the population; (d) 13% have had more homosexual experience than heterosexual; (e) 10% were more or less exclusively homosexual and (f) 8% exclusively so for a similar period; and (g) 4% are exclusively homosexual throughout their lives. . . .
Much more important, and very much more relevant, all seven of these groups, comprising 30% of the American male population, are ineligible for federal employment under present Civil Service Commission rules, policies, and regulations, as they are now administered! . . .
These figures deal with males. Female homosexuals are perhaps less well known to the populace at large, but their incidence is about as great as that of the male homosexual.
Thus we may accept as a conservative estimate, that these policies are primarily directed against some 15 or 16 million adult Americans—about 13% of our adult population—and may potentially affect up to 30%—about 35,000,000 adults. . . .
In the present Federal services, with its more than 2,000,000 employees, there are thus potentially some 260,000 persons intimately affected by these regulations, and 600,000 against whom these regulations could be invoked. . . . [T]he number presently within the Federal service who are under the shadow of these regulations is neither small nor negligible; the number in the entire population who are discriminated against, actually or potentially, by these policies, and by them having their freedom of opportunity unreasonably, improperly, and unnecessarily reduced, is enormous. . . .
It has been argued that the mere presence of homosexuals in a government (or other) office is a disruptive influence, and a cause of friction among employees. The acknowledged extreme difficulty in identifying these people effectively refutes this argument. If it were true that homosexuals constitute a disruptive influence, the undisrupted government office would be a rarity. . . .
Although the government's policies on homosexuals have long been in effect, their present harshness, the extreme measures used to effectuate and implement them, and much of the body of administrative and investigative procedure now in existence, date back, largely, to the unfortunate, so-called "McCarthy Era", and, specifically, to the recommendations of U.S. Senate Document No. 241, December 15, 1950, an interim report submitted to the Committee on Expenditures in the Executive Departments, by its Sub-Committee on Investigations (the "Hoey Committee"). The document is entitled "Employment of Homosexuals and Other Sex Perverts in Government". While, to a quick or uninformed reading, the contents and conclusions of this report may seem properly arrived at, supported by fact, and reasonable, a careful and informed reading will show it to be a mass of misstatement, misinformation, non sequiturs, prejudiced judgments (in the original sense of the word "prejudiced"), specious reasoning, sheer fabrication, and fallacy.
Much more important than that, however, is the sub-committee's own statement of its objectives in making its inquiry:
"To consider why [the employment of] homosexuals by the Government is undesirable * * *"
Not "whether", but why"! Naturally, since, as this statement indicates, the Committee had decided a priori, that the employment of homosexuals by the Government was undesirable, they would discover that it was indeed undesirable, and would supply some fallacious but superficially plausible-sounding rationalizations for their position. . . .
[F]or a full decade, these rationalizations, arrived at by me with (by their own statement) closed minds, have been the guide for government policy and procedure in regard to the employment of homosexuals—as well as the basis for much vicious police activity in Washington and elsewhere in the country (e.g.: The nationwide practice of the taking of fingerprints and the sending of them to the FBI's files in cases of even the most minor of offenses, or even in cases where individuals are detained for me "investigation" or "suspicion", if there is the slightest overtone of homosexuality involved; and the maintenance—as by the D.C. Police Department—of extensive lists of known and suspected homosexuals, for use by the Civil Service Commission. A study of the percentage of such "arrests" for "investigation" in Washington, D.C., in which possible homosexuality was a factor might perhaps prove illuminating, as might a study of the amount of police activity and deployment of police manpower directed at simply adding names to lists of homosexuals. Much of the activity of the D.C. Police Department's so-called Morals Squad, and, in fact, according to an oral statement to petitioner by the Chief of the Squad, the very genesis of the Squad, or of its so-called perversion section, are in direct consequence of the report of the "Hoey Committee"). Policies and procedures built upon a basis such as this cannot conceivably meet the test of reason.
In the instant case, petitioner's performance at his job, by statement of his supervisors at the Army Map Service, was not merely satisfactory, but superior. His training and specialization placed him in a category in which the supply of available manpower was and is smaller, by far, than the demand. his conduct, bearing, demeanor, and deportment while at work had been impeccable. Yet, in his letter of March 12, 1958 (Ex. 9, JA, pp. 14-15) . . . the Commanding Officer of the Map Service rejected petitioner's appeal on the ground that he was dismissed "to better promote the efficiency of the Federal service." A greater departure from reason would be difficult to find! . . .
The Government's policies on homosexuality violate such fundamental criteria of reason. Not only are the government's present policies on homosexuality irrational in themselves, but they are unreasonable in that they are grossly inconsistent with the fundamental precepts upon which this government is based, and with the entire body of its other current practices and policies, as well as with recognized national aims and goals.
We may commence with the Declaration of Independence, and its affirmation, as an "inalienable right" and that of "the pursuit of happiness". Surely a most fundamental, unobjectionable, and unexceptionable element in human happiness is the right to bestow affection upon, and to receive affection from whom one wishes. Yet, upon pain of severe penalty, the government itself would abridge this right for the homosexual. It is a rather shabby and shoddy state of affairs for a citizen's retention of his job to be dependent upon his having to choose, as an object for his affections, someone acceptable to the Civil Service Commission officials, and their henchmen elsewhere in the government. That is what the present situation boils down to. And it is indeed a petty thing when the very government of the United States stoops to attempt to regulate the social life of its employees. A re-reading, by respondents, of the Declaration of Independence, with some careful thought given to its meaning, significance, and background, would be immensely valuable to them, and of enormous good to the nation!
In November of 1960, the President's Commission on National Goals published its report. This report, if its background and origins are considered, contains what is probably as close to an official statement of what our national goals are and ought to be as any document in existence. There is much in it which is of relevance here. There is precisely equally much with which present government policy toward the homosexual is totally inconsistent.
The Report (pp. 2-4) states: . . .
"Respect for the individual means respect for every individual. Every man and woman must have equal rights before the law, and an equal opportunity to * * * hold office * * * to get a job and to be promoted when qualified. These goals which are at the core of our system must be achieved by action at all levels."
These goals can hardly be said to have been attained by the homosexual in our society, and certainly not by the homosexual in his dealings, on any basis or level, with his government. The government is acting vigorously and properly to secure to the Negro his civil rights; but it is acting equally vigorously to deprive the homosexual of his civil rights. . . .
"The notion that ideas and individuals must be rejected because they are controversial denies the essence of our tradition."
But such rejection is precisely what is occurring in this case. . . .
Perhaps most important, we read (page 4 of the Report) that:
"One role of government is to stimulate changes of attitude."
In field of anti-Negro, anti-Semitic, anti-Catholic, and other prejudice, the government has indeed recognized, and is playing fully and admirably its role as a leader of changes in attitude. In regard to the homosexual, the government is following—and following abjectly—an example of prejudice of the least admirable kind, with no effort to change its own attitude, much less to stimulate changes of attitude elsewhere.
In the summer of 1960, Mr. Kimball Johnson, Chief of the Investigations Division of the Civil Service Commission, in publicly enunciating Commission policy, stated that
sex perverts will continue to be fired on the spot. The public would not condone any modification of CSC's rigid standards in handling such cases.
But the pubic did not condone integration in Little Rock, in New Orleans, in the armed forces, and elsewhere. By court order and force of Federal troops, the public was made to accept it, willy-nilly, with or without condonation.
There will be no riots in the streets if homosexuals are no longer fired from the government service; no government buildings will be blown up; there will be no need to call out troops to protect Federal employees; there will be no mass resignations or boycotts of the Federal service, or any other signs of protest analogous to those occurring in the South in regard to racial integration.
Yet the government will act against strongly (and violently) expressed public opinion in support of one minority, but will not act to support another minority, equally large and no less deserving, against what is little more than the government's own presumption of what the strength of public opinion might be. . . .
In summary, then, the government's entire policy on homosexuals, and its practices, procedures, and regulations, and the cliches used to justify them, represent a complete abandonment of, and abdication from reason. This entire set of policies and practices is fraught with inconsistencies and irrationalities, and, by no stretch of imagination or pretense at the use of intellect, can they be said even to approach meeting the tests of reason, or of the promotion of the general welfare, as prescribed in the Preamble to the Federal Constitution. Quite to the contrary, they violate all reason, and are strongly antagonistic to the interest of the general welfare.
This alone should be sufficient to bring respondents' actions at issue into the strongest, fullest, and most searching of question before the courts. But we have:
(7) The Argument Against the Constitutionality of the Civil Service Commissions Policies and Practices
Even were respondents' actions factually supported and procedurally correct, their regulations legally valid and constitutional, and their policies properly nondiscriminatory, and capable of meeting the test of reason (all of which they are not), however, the Commission's action is invalid because it itself, and the policies upon which it is based are unconstitutional under the Fifth Amendment to the Federal Constitution.
The Civil Service Commission, by its policies, seeks to limit the freedom of action of an employee, in a fashion which, as has been shown in the argument preceding, is arbitrary and without basis in reason or in relevance to any possible proper objectives of the Commission or of the government.
The Commission's policies against the employment of homosexuals constitute a discrimination no less illegal and no less odious than discrimination based upon religious or racial grounds, a personal discrimination which is, to borrow a phrase from Bolling v. Sharpe, 347 U.S. 497, 499 (1954) "so unjustifiable as to be violative of due process."
Both the Civil Service Commission action and the Army Map Service action are based upon the mere suspicion that petitioner's sexual activities and the direction of his affections may be different from those of the majority of citizens (Petitioner's arguments and position in this petition would in no slightest degree be altered, were that suspicion proven unquestionably correct).
In Bolling v. Sharpe, supra, this Court has said:
"Although the court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective."
In this case, respondent is depriving petitioner of his liberty, under law, to compete for, accept, and hold government employment on the same basis as other citizens of the United States. No proper, reasonable governmental objective has been shown in this restriction, nor, by Argument 6 above, is it likely that any can be shown.
This argument applies, too, to the Army Map Service action. Petitioner was informed (Letter of December 10, 1957) that had the Map Service had full details of the arrest, he "might not have been considered for appointment by this agency". (Ex. 1, JA, p. 7) In view of the fact that, however arrived at, the final verdict was "Not Guilty", this can mean only that the true basis for the Map Service action was identical with that for the Civil Service Commission action—solely and only a suspicion of homosexuality . . . Here too, a flat disqualification and a dismissal for homosexuality are deprivation of both liberty and property without due process of law.
The Supreme Court has held (Bolling v. Sharpe, supra), that "* * * equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive." It follows that when a Federal agency's decision is challenged as personally discriminatory in violation of the due process clause of the Fifth Amendment, the courts must satisfy themselves, by going behind the agency finding to see whether it is without substantial support. . . .
This alone is sufficient to invalidate the actions of both the Civil Service Commission and the Army Map Service.
Summary of Arguments
Respondents' case is rotten to the core. Respondents' case has been shown to fail factually and to be defective procedurally; the regulations upon which they base their case have been shown to be legally faulty, invalid, and unconstitutional; their policies have bene shown to be improperly discriminatory, irrational and unreasonable, inconsistent and against the general welfare, and unconstitutional. The entire bases for respondents' actions in this and in similar cases have been shown to be arbitrary, capricious and without reasonable foundation.
Genuine issues of fact have been raised, as well as issues of law and statute, which are of deep concern to at least some 15,000,000 citizens, and possibly twice that number or more. These issues are of sufficient weight and gravity to warrant their being heard in full by the courts.
The government's regulations, policies, practices and procedures, as applied in the instant case to petitioner specifically, and as applied to homosexuals generally, are a stench in the nostrils of decent people, an offense against morality, an abandonment of reason, an affront to human dignity, an improper restraint upon proper freedom and liberty, a disgrace to any civilized society, and a violation of all that this nation stands for. These policies, practices, procedures, and regulations have gone too long unquestioned, and too long unexamined by the courts.
The government's entire set of policies and practices in this field is bankrupt, and needs a searching re-assessment and re-evaluation—a re-assessment and re-evaluation which will never occur until these matters are forced into the light of day by a full court hearing, such as is requested by this petition.
The time has come for the government to turn over a new leaf—nay, to open a new volume—in its treatment and handling of this question and of the citizens involved. This might well be achieved by this court by the simple expedient of granting petitioner his writ of certiorari.
Conclusion
For the foregoing reasons, set out in detail above; in the interest of justice for petitioner personally, and in order that he may pursue his fight for his proper rights, freedoms and liberties, and for his career, his profession, his livelihood, his chance to contribute to society to the fullest extent of his ability, and his good name, against infamous, tyrannical, immoral and odious actions of his government; in the interest of the public at large and of the nation as a whole; and in the particular interest of a large minority of the citizenry, this petition for a writ of certiorari should be granted.
Respectfully submitted,
Franklin E. Kameny
Pro se
January 27, 1961
Supreme Court of the United States
No. 676, October Term, 1960
Franklin Edward Kameny, Petitioner
v.
Wilber M. Brucker, Secretary of the Army, et al.
On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit.
On consideration of the petition for a writ of certiorari herein to the United States Court of Appeals for the District of Columbia Circuit, it is ordered by this Court that the said petition be, and the same is hereby, denied.
March 20, 1961
Interim Report on Employment of Homosexuals and Other Sex Perverts in Government (1950)