Why was that conduct language there? Because of gay and lesbian activism and legal struggles. From the mid-1960s to the mid-1970s, gay and lesbian activists fought with and finally changed the Civil Service Commission — the agency that the act replaced with three new agencies (the Office of Personnel Management, the Merit Systems Protection Board and the Office of Special Counsel). In letters, face-to-face meetings and public protests — in front of the White House and Philadelphia’s Independence Hall — activists pointed out, over and over, that there was no relationship between sexual orientation and a person’s capacity to work for the federal government.
After bureaucratic and legal battles lasting 10 years, persistence paid off. But the coded language of conduct, rather than an explicit statement about sexual orientation, demonstrated the limits of this landmark piece of legislation, and the challenges that still faced the LGBTQ community as it labored to overcome discrimination in federal employment.
It was a struggle that went back decades. During the Cold War, the sexual orientation of federal employees became a target during what has become known as the “Lavender Scare.” Government agencies cracked down on employees suspected of same-sex attraction, arguing that it betrayed a moral weakness and created a security risk.
By the early 1960s, however, the Mattachine Society of Washington, working with the National Capital Area Civil Liberties Union, developed a litigation strategy for challenging the commission’s discriminatory policy. They found an ally in the courts. In the 1969 decision in Norton v. Macy, the United States Circuit Court of Appeals for the District of Columbia Circuit declared discriminatory practices unconstitutional. That case pitted Clifford Norton, a NASA employee arrested by D.C. police for homosexual solicitation and then interrogated for several hours by NASA security agents, against John Macy, the highly homophobic chair of the Civil Service Commission.
The court held that “the Commission has neither the expertise nor the requisite anointment to make or enforce absolute moral judgments … the notion that it could be an appropriate function of the federal bureaucracy to enforce the majority’s conventional codes of conduct in the private lives of its employees is at war with elementary concepts of liberty, privacy, and diversity.” In short, it argued that there was no relationship between conduct and an employee’s “efficiency of the service.”
The legal battle continued over the next four years, culminating in a federal injunction against the Civil Service Commission. On Oct. 31, 1973, San Francisco federal judge Alfonso Zirpoli, a liberal appointed by President John F. Kennedy, issued an injunction against the commission after the firing of a gay employee in the Agriculture Department. The injunction held that sexual orientation was irrelevant, contrary to the position taken by the Civil Service Commission that the reputation of the civil service would suffer if it was widely known that lesbians and gay men worked for Uncle Sam.
The court forced the commission to start an internal review to study whether there was a “specific rational connection” between “conduct” and “ability to perform” or “the ability of the Federal agency to carry out its mission.” Within a few weeks, the commission issued a bulletin to federal agencies forbidding dismissals of employees for homosexuality alone and barring any reliance on “‘unsubstantiated conclusions regarding embarrassment to the Federal service.’”
The commission thus — finally! — embraced Norton. It did so because one of the commission’s long-serving lawyers, Anthony Mondello, had decided on the merits that the time for policy change had come. (I know this thanks to reading copies of documents from the commission’s Office of General Counsel that were unearthed in the National Archives by the new Mattachine Society of Washington, D.C and shared with me during a visit to the D.C. law firm of McDermott, Will & Emery.)
A year and a half later, in July 1975, commission officials fully complied, announcing that open homosexuality no longer constituted a cause for dismissal. On the front page of the July 4 Washington Post, the headline read: “Civil Service Ruling: Homosexuals Win Job Right.”
While an achievement for the Ford administration, it soon became Jimmy Carter’s responsibility to implement these changes. Carter was the first president to have openly campaigned in favor of gay rights (a little-known fact about him). The administration even held a White House conference on gay rights early in his administration.
But by the fall of 1978, Anita Bryant and her homophobic “Save the Children Campaign” had spread throughout the country. Their targets? Those cities and municipal governments that had, in the early and mid-1970s, put clear and explicit protections for gay and lesbian municipal employees into their long-standing civil rights ordinances.
It is quite likely — although not certain — that Bryant’s campaign is why the final Civil Service Reform Act used the opaque language of conduct.
What was not done in legislation was done by bureaucratic means. In 1980, Alan Campbell, who had just transitioned from his role as Civil Service Commission chair into that of director of the Office of Personnel Management, clarified the language of conduct through the simple device of a binding memorandum — today known as the Campbell Memorandum in law school case books and in law review articles. It read: “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.”
This policy gradually spread through the federal government, but it took activism for that to happen. Over the next decade and a half, several federal agencies — in response to demands from organized gay and lesbian federal employees — explicitly announced that they did not discriminate on the basis of sexual orientation. Then on May 28, 1998, President Bill Clinton issued Executive Order 13087, which amended an equal opportunity order issued by Richard Nixon to include “sexual orientation.”
As we take note, then, of CSRA’s 40th anniversary, we should also take note that the commemoration’s coincidence with LGBT History Month (October of every year) teaches us a crucial lesson about the power of activism: It can stop a government from persecuting its own civil servants because of their sexual orientation.