On this Memorial Day, I’m pondering the connection between our struggle for freedom and equality and the sacrifices of service men and women. Memorial Day was invented on May 30, 1868, as “Decoration Day.” Now it climaxes a three-day weekend marking the start of summer fun. In this way and many others, Americans forget their history. Often I write about our history because it is the context in which we have expanded – and contracted – our national oneness.
Decoration Day was a remembrance of the Civil War, which was a consequence of the worst-ever Supreme Court decision, in 1857: Dred Scott, in which Chief Justice Roger Taney wrote that a free Negro, descended from slavery, “is not a ‘citizen’ within the meaning of the Constitution of the United States.” Having nullified the Compromise of 1850, the court turned out politics in favor of arms.
The Supreme Court has often been our agent of expanding equality. Consider Brown v. Board (reversing its own “separate but equal” decision in Plessy) or United States v. Windsor (striking down the Defense of Marriage Act). But the courts also have been the agent of reaction, while the executive and/or Congress have driven creation – as was the case in the 1860s with the prosecution of the war and passage of the 13th, 14th and 15th amendments. Later came Congress’s generation of amendments expanding the franchise to women, D.C. residents, and 18-year-olds.
While African Americans continue to struggle for equality before all three branches, the courts have driven rights for LGBT persons, with rare same-sex marriage victories in the executive and legislature. Anticipating the high court’s gay-marriage decision in Obergefell v. Hodges, I read one of the amicus briefs, filed by the Mattachine Society of Washington, D.C. The brief details the executive branch’s “animus against LGBT Americans [that] fed the flames of hatred, revulsion, and disgust from which the current marriage bans arose.”
MSDC conducts archival research and educational programs on gay and lesbian history. With its pro bono counsel, McDermott, Will & Emory, MSDC’s brief focuses on the efforts of the Civil Service Commission (now the Office of Personnel Management) to roust homosexuals from federal jobs beginning in the 1940s. The brief states:
The historical background demonstrated by these original source materials reveals a culture of animus against LGBT Americans, justifications for excluding them from the privileges given to all other Americans, and a revulsion to any form of intimacy between individuals of the same sex. The voices of the government officials in these important documents, and the stories of the victims of these purges, show why government actions grounded in animus cannot stand.
One might suggest that FBI Director J. Edgar Hoover’s program to identify “sexual deviants” was rooted in the government’s Cold War loyalty investigations. But President Eisenhower’s 1953 Executive Order 10450 turned a largely political exercise under a Truman executive order into a broader effort to purge employees suspected of “any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction, or sexual perversion.” The CSC, supported by the FBI, was directed to execute Eisenhower’s order. The brief argues:
EO 10450 and the Sex Deviate Program were already powerful tools to implement the policy of running homosexuals out of the federal government. But, when combined with the CSC, the three became a potent poison that spread animus against homosexuals throughout all branches of the federal government and into the States.
In a 1964 memo, for example, a CSC supervisor wrote:
[O]ur society generally regards homosexuality as a form of immoral conduct. Also, our societal attitudes being what they are, a homosexual is extremely vulnerable to blackmail: exposure means public opprobrium, and, in the case of a Government employee the loss of his job. Thus, under the terms of the Order, past or present homosexuality renders the individual unacceptable for a sensitive position . . . [W]e set homosexuality apart from other forms of immoral conduct and take a more severe attitude toward it . . . The result is that our evaluations are quite subjective, depending on the strength of the reviewing official’s aversion to homosexuality in general and his reaction to the circumstances of the particular case at hand.
As the brief explains, the CSC’s purging of homosexuals preceded the Cold War and concerns over possible blackmail of officials, in sensitive positions or in lower grades. By 1950, the commission worked closely with a Senate subcommittee, which reported that “the public interest cannot be adequately protected unless responsible officials adopt and maintain a realistic and vigilant attitude toward the problem of sex perverts in the Government. To pussyfoot or to take half measures will allow some known perverts to remain in the Government.”
The CSC also relied upon the work of the states – or at least the work of Florida, where a joint legislative committee issued a 1963 report stating that “many facets of homosexual practice as it exists in Florida today pose a threat to the health and moral well-being of a sizable portion of our population, particularly of our youth.” (The introduction of the report is so sensational that it’s difficult to capture in a phrase or two; on the other hand, it quotes an arm of the MSDC that had predicted: “The time is coming when homosexual love will be accepted in America as it is now in some other cultures of the world.”) According to MSDC, the Florida report resulted in the firing of 37 federal officials.
Adverse court rulings eventually tamed the government’s urge to purge. But the MSDC brief has a footnote that brings the Eisenhower executive order full circle: The White House relied on then-Assistant Attorney General Warren Burger to defend the order. Burger, as chief justice three decades later, wrote a concurring opinion in Bowers v. Hardwick (1986), in which he called homosexuality “the infamous crime against nature,” an offense of “deeper malignity” than rape, and “a crime not fit to be named.” I have suggested that the court’s reversal of Bowers in Lawrence v. Texas (2003) set the course for the backlash among voters to same-sex marriage – a course that the court, from all signs, intends to end.
It is a particular for which no soldier likely has given his life over the past 150 years. But it is the cause of which Lincoln spoke at Gettysburg. We are still working on whether “of the people, by the people, for the people” means all of them.