The Unsuitables

When the Office of Personnel Management (OPM) Director John Berry, now Ambassador to Australia, officially apologized in 2009 to Dr. Franklin E. Kameny, it was a personal statement delivered by letter in a special ceremony. The openly gay Director wrote: "In what we know today was a shameful action, the United States Civil Service Commission in 1957 upheld your dismissal from your job solely on the basis of your sexual orientation."

The apology was historic, powerful and heartfelt. Director Berry and his team may have sincerely thought an apology coupled with a repudiation of "the reasoning of the 1957 finding by the United States Civil Service Commission to dismiss you from your job solely on the basis of your sexual orientation," might close the books on the tens of thousands of homosexuals who had been investigated and/or fired over six decades. Kameny famously replied, "Apology accepted!"

It would have been so easy for the OPM to have made at least a simple reference to the generations of LGBT employees and others who were branded "immoral" and "unsuitable" for federal employment. There has never been an apology for them, and that is shameful given the stark new evidence of federal discrimination and animus recently discovered at the National Archives.

Hundreds of never-before-seen, declassified documents from the Office of General Counsel (OGC) of the Civil Service Commission and OPM discovered by the Mattachine Society of Washington D.C. with our pro bono legal counsel McDermott, Will & Emery, reveal a shocking animus toward LGBT Americans from the highest level of entrenched government lawyers. In boxes labeled "Suitability and Homosexuals," memos, correspondence and briefs of successive Commission Chairmen, General Counsels and staff reveal massive legal resistance to Federal courts' and plaintiffs' efforts to be reinstated in their jobs and to end federal discrimination against gays.

Among the OGC files are snide and dismissive references to Frank Kameny that he would have enjoyed but never saw, ("he and his kind (italics added)...I think we can dispose of the Constitutional question rather quickly." (Memo, General Counsel L.V. Meloy, 1962). However, the OGC files provide a larger context, like a Google map expanding its terrain, from individuals like Kameny to cases affecting thousands, with ever-more sophisticated lawyering to keep the system in place. "We have been taking our lumps on suitability cases," complained General Counsel Anthony Mondello in 1971. Terminated gay employees ask, "what has my private sex life got to do with working in the Post Office," writes Mondello,"the suit appears indefensible and could, if pursued, provide a vehicle for issuance of legal decisions we could not live with." Even in the 1980s, General Counsel Majarie Waxman writes, "the courts have shown a clear tendency to be offended by the removal of low grade employees on the grounds of homosexuality...I can see no benefit to be gained by a petition for certiorari in this case." That "low grade employee" was a messenger. That "benefit" would be to further maintain the system of investigation and termination.

The OGC files reveal embedded ideological biases that are chilling. The CSC organized a Special Task Force on Immoral Conduct where Director of Investigations Kimbell Johnson warned, "we must not go back to the McCarthy era where the reputation of the Commission had become so low that we were thought to be staffed by crooks, Communists and perverts." Johnson was concerned that because of constraints placed by Courts, "we have no criteria to remove people involved in the New Left movement who preach and practice anarchy." Civil Service Commission Chairman John W. Macy cited the "revulsion" of fellow employees working alongside a known "deviate" as a reason to maintain the ban on homosexuals in federal employment. Macy's papers remain unprocessed to this day at the LBJ Presidential Library in Austin.

The OGC briefed the Department of Justice on important cases, for example one case about an individual who "is an open, exclusive homosexual, who has obtained, indeed sought, publicity in his advocacy of freedom of homosexual activity...Plaintiff's allegations of protection under the First Amendment cannot stand." (CSC Counsel Burton McDonald, 1973).

A lengthy report to Assistant Attorney General L. Patrick Gray, later to be named Director of the FBI to replace J. Edgar Hoover, accuses a lesbian employee of an act of "oral sodomy" in the Women's Army Corps and keeping the company of homosexual friends! The legal strategy, discovered in these files, was to obtain the Army's cooperation and evidence in presenting the Commission's case to the Judge, en banc, so that the woman could be terminated from her civilian job.

The discovered OGC files reveal how the lawyers did all in their power to slow or circumvent federal court rulings to limit discrimination against LGBT Americans. We could not find a single document from any of these General Counsels that reveals any empathy for their gay and lesbian targets, people whose careers were being destroyed and lives shattered with the official label of "immoral," "disgraceful" and "unsuitable."

In the authoritative book on non-judicial truth seeking Unspeakable Truths (Routledge, 2010), Priscilla Hayner asks leaders of countries who have suffered the worst state-sponsored crimes the fundamental question: "Do you want to remember or forget?" That is, should the past be acknowledged and apologized for? The essence of truth and reconciliation efforts is to establish and acknowledge the facts of what happened so that society can move forward from terrible injustice. The OGC Files of the CSC and OPM reveal such large-scale injustice. It is time for the Office of Personnel Management to acknowledge what happened, not by personal apology to one victim, but with an honest statement fully acknowledging all of its past practices, opening its files to the public and extending a sincere apology to all whose lives and careers were destroyed. After that, how about a "suitable" Memorial for the Unsuitable?