Ghosts in the Courtroom
The late gay rights pioneer Frank Kameny’s exhortations ring in my ears as I anticipate arguments before the U.S. Supreme Court on whether the Fourteenth Amendment requires states to license same-sex marriages.
Chief Justice John Roberts, in his dissent in the 2013 Windsor case, dismissed as “snippets of legislative history” the evidence for decades of anti-gay animus by the U.S. government. This erasure of our struggle is not unique to judges. Tom Brokaw’s 2007 book, Boom! Voices of the Sixties, prompted a letter from Kameny charging, “Your book simply deletes the momentous events of that decade which led to the vastly altered and improved status of gays in our culture today.”
Such deletions inspired the re-establishment in late 2011 of the Mattachine Society of Washington, D.C. (MSDC), which Kameny founded in 1961 but allowed to lapse in 2006. The new MSDC is dedicated to archive activism for LGBT equality. As an officer of the earlier organization, I joined Charles Francis, who led the successful effort to preserve the Kameny Papers at the Library of Congress, in creating the new one.
Mattachine’s research led to the March 6 filing of its amicus brief in Obergefell v. Hodges and related cases by its legal counsel, McDermott Will & Emery LLP. The brief complements “The People’s Brief” prepared for the Human Rights Campaign, which explores the historical and political context of state marriage bans. The Mattachine brief states:
“Original source materials obtained and recently released by the MSDC reveal the backdrop of animus in front of which the states enacted the bans now at issue.… The historical background…reveals a culture of animus against LGBT Americans, justifications for excluding them from the privileges given to all other Americans….”
After the Second World War, the federal government began firing its homosexual employees, armed with the FBI’s Sex Deviate program in 1951 and President Eisenhower’s Executive Order 10450 in 1953. The Civil Service Commission (CSC), later renamed the Office of Personnel Management (OPM), conducted the purge. After adverse court rulings, CSC adjusted its arguments to continue firing people for private, consensual behavior that was irrelevant to their jobs. It even expelled heterosexually married father William Dew for a few same-sex encounters as a student; he fought for years before being restored.
It is a grim history. Eisenhower advisor Arthur Vandenberg, Jr. was forced to resign when the FBI learned of his homosexuality. CSC General Counsel L.V. Meloy used a sensational Florida investigative report to purge federal employees. CSC Chairman John W. Macy, Jr. denied prying into people’s private sex lives despite CSC’s investigations, then said, “We see no third sex, no oppressed minority or secret society, but only individuals....”
CSC persisted after being rebuked by a federal appeals court in 1971. “By the 1970s,” the brief states, “the Commission had reluctantly slowed its purge.” But the lie about a gay security threat lingered. In the 1990s, President Clinton affirmed a cultural shift with executive orders barring anti-gay discrimination in security clearances and federal civilian service. Yet as late as the George W. Bush administration, Special Counsel Scott Bloch fought gay protections.
The marriage cases being argued April 28 call to mind Kameny’s defiant 1969 statement to the Defense Department in the security clearance case of Benning Wentworth, concerning a previous applicant known only by his case number: “OSD 66-44 may have compromised…. He may have crawled. He may have groveled. He may have submitted to Departmental blackmail of the most contemptible kind. We will not. We stand our ground. We throw down the gauntlet, clearly, unequivocally and unambiguously.” These bracing words stir both pride and sorrow at the price still paid to uphold our love.
The Mattachine brief, and the archival rescue that went into it, is in partial payment of an historic debt. But victory in the marriage cases will not complete that debt. The thousands, living and dead, who were persecuted by their own government because of whom they loved, deserve a formal apology like the one OPM Director John Berry gave Frank Kameny in 2009. Even as we move forward, we reclaim our roots. We cannot allow our gay foremothers and forefathers to be forgotten.