Justice Ruth Ginsburg made headlines last week by signaling an evolving view at the Supreme Court about gays and lesbians: we are individuals. This is a very significant event, turning from a largely unknown "landmark policy statement on homosexuals" steeped in animus and some sarcasm, issued more than forty years ago in a letter representing the Federal Government's view.
Writing for the Court, Justice Ginsburg explained: "Our decisions have declined to distinguish between status and conduct in this context" (Christian Legal Society vs. Martinez (University of California, Hastings)). The Supreme Court ruled 5 to 4 that a law school may deny recognition to a Christian student group that won't let gays join. The Christian student group argued it wasn't discriminating against sexual orientation, just the immoral conduct. Yet the Court "declined to distinguish" between the two. Doing so, the Court accepted that persons of homosexual orientation are a discrete and definable class -- individuals that can be protected.
For decades the federal government held that homosexuality is about conduct, not about individuals with freedoms derived from the promise of the Declaration of Independence and the protection of the Constitution. From the repeal of "Don't Ask, Don't Tell" to the same sex marriage case of Perry v. Schwarzenegger, the question of status versus conduct remains central and will, no doubt, be coming back to the Supreme Court until settled.
Almost forty-five years ago, in 1966, the Federal Government laid out its position on homosexual status vs. conduct, in a three page policy statement, in the form of a letter from the head of the U.S. Civil Service Commission to The Mattachine Society of Washington, D.C. Until discovered in the attic of Dr. Franklin E. Kameny, the founder of The Mattachine Society of Washington, D.C., this letter had been forgotten, neither afforded historic credibility or scrutiny by mainstream media, nor discussed by legal scholars. In later years, it was not even mentioned in the autobiography of the man who instigated and signed it, Chairman of the Civil Service Commission John W. Macy, Jr.
Macy's letter -- dubbed the "Revulsion Letter" now in The Library of Congress -- explained why homosexuals were "unsuitable for federal employment", citing "the revulsion of other employees" when they work with an "admitted sexual deviate". However, Macy's primary focus was not on revulsion. His focus was on the very specific question of status vs. conduct. Macy wrote: "We see no third sex, no oppressed minority or secret society...". He continued, "We do not subscribe to the view that "homosexual" is a proper metonym for an individual. Rather we consider the term "homosexual" to be properly used as an adjective to describe the nature of overt sexual relations or conduct".
Macy sharpens the attack on the Mattachine Society to make his final point. "It is upon overt conduct that the Commission's policy operates, not upon spurious classification of individuals. The (Mattachine) Society apparently represents an effort by certain individuals to classify themselves as "homosexuals" and thence on the basis of asserted discrimination to seek, with the help of others, either complete social acceptance of aberrant sexual conduct or advance absolvement of any consequences for homosexual acts which come to the attention of public authority." The animus toward the Mattachine is so complete, Macy does not refer to "rights". He's talking "absolvement", the language of a historian or a royal.
John Macy, Jr. was the establishment itself. Originally appointed by President Eisenhower, Macy served under President Kennedy and Vice President Johnson -- who later appointed Macy to head the Civil Service Commission. Macy reported directly to LBJ, sometimes through Johnson's Special Assistant, Bill Moyers. Before sending his letter to The Mattachine Society, Macy wrote his counsel with whom he worked on the letter, "I have reviewed with thoughtful care the proposed response to the Mattachine Society. I believe it is most effectively done and sets forth a humane, public interest position." Later in a personal note, Macy praised his counsel for helping draft "the landmark policy statement on homosexuals" (LBJ Library, Personal Papers of John W. Macy). This letter was no one-off response to an interest group. It was heavily lawyered, signed by a Washington colossus, and served as the formal policy statement supporting the federal ban on hiring gay and lesbian Americans -- and firing them -- until 1975. Sadly, the letter's "status vs. conduct" analysis reverberates still: "we see no oppressed minority".
John Macy, Jr. would not enjoy seeing his role remembered these many years later, on the wrong side of history. He saw himself as a progressive man. The successor Office of Personnel Management (OPM), Director John Berry formally repudiated and apologized for the "landmark policy statement" to Frank Kameny, fired in 1957, in a 2009 ceremony.
Justice Ginsburg's comment may signal that the legal shadow of "The Revulsion Letter" could be coming to an end.
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