That time the Watergate prosecutor argued the case for job discrimination against gays

Archibald Cox is remembered today as one of the legal heroes of his time. Cox was a patrician, bow-tie-wearing Harvard Law School professor who was appointed Watergate special prosecutor in 1973; his uncompromising pursuit of the evidence — including secret White House tapes — triggered the events that led to President Richard Nixon’s resignation.

But a newly unearthed legal filing reveals another, less well-known, chapter in Cox’s career: his effort to uphold the firing of a federal air traffic controller on the grounds that the man had admitted during a background check to engaging in homosexual acts as a 19-year-old college student.

Describing homosexuality as a “personality disorder” and homosexual contacts as “acts of disgraceful personal conduct,” Cox — who was then serving as President John F. Kennedy’s solicitor general — in 1963 filed a brief with the Supreme Court opposing a bid by the air traffic controller, William Dew, to be reinstated.

Cox conceded in his brief that there was no question about Dew’s ability to perform his job. Still, he argued, the Federal Aviation Agency was within its rights to fire him because his co-workers “might be disturbed or adversely affected by the presence of a person who had committed immoral acts of the kind here involved.” (Read the Cox brief.) The brief was co-signed by three other U.S. government lawyers.

Cox died in 2004, and it is impossible to know from the record what role he personally played in shaping the U.S. government’s legal case against the air traffic controller. But this week, Cox’s antigay legal argument is being prominently featured by a gay civil rights group in its own filing with the Supreme Court.

The Cox brief, the group contends, is striking evidence of what it describes as decades of federal government “animus” against homosexuality — officially sanctioned prejudice that the group contends is at the root of current state bans against same-sex marriage.

When he discovered the Cox legal brief in the files of the National Archives, “it took my breath away,” said Charles Francis, president of the Mattachine Society of Washington, D.C., which is filing its brief this week. “It’s a stunning exception to his liberal, pro-civil-rights legacy — that he would write something as hostile to homosexuals as this. This was the Kennedy administration; it’s not the Dark Ages.”

For the past several years, the Mattachine Society of Washington, a revived version of a group originally founded in 1961, has been seeking to document evidence of the U.S. government’s persecution of homosexuals, filing Freedom of Information Act lawsuits that have unearthed thousands of government files showing how gay workers were barred from employment and hounded from federal jobs.

Some of those records are now being used by the group in its brief to the Supreme Court in Obergefell v. Hodges, the same-sex marriage case that will be argued before the justices next month. The Mattachine Society brief, written by lawyers from the major D.C. firm of McDermott Will & Emery, takes the same basic position as the Obama administration, though with far different details. It argues that same-sex marriage bans are the product of invidious (and unconstitutional) discrimination that was sanctioned by high-level government officials for years. (A copy of the brief, with links to the original documents, including Cox’s memo, is available online.)

The brief, for example, cites a September 7, 1951, memo by FBI director J. Edgar Hoover titled “Sex Deviates in United States Government Service.” Hoover’s memo authorizes a sharp expansion in the bureau’s efforts to identify “deviates” in the federal workforce: When conducting investigations into the “loyalty” of government workers and “information is received … indicating the person under investigation is a sex deviate, this allegation should be completely and fully developed,” Hoover wrote in the memo.

Among the steps Hoover ordered: The bureau should consolidate information obtained from local police departments or “any other source,” including cataloguing “the name of the alleged sex deviate as well as the name of any other deviates with whom he associated,” along with “the date and place that the alleged act of sexual perversion occurred.”

The brief also traces how the FBI’s “sex deviates” program — fed by fears that gay workers could be blackmailed by communist subversives — led President Dwight Eisenhower in 1953 to sign Executive Order 10450, a sweeping decree that specifically named “sexual perversion” as among the grounds for barring a worker for a federal job.

The order was then rigidly enforced and even expanded by the U.S. Civil Service Commission, most vigorously by its later chairman John W. Macy, a Kennedy appointee who continued to serve under President Lyndon B. Johnson and into the early years of the Nixon administration, according to documents uncovered by the Mattachine Society and cited in this week’s brief.

When Frank Kameny, a gay civil services advocate who originally founded the Mattachine Society, and others met with Macy in September 1965 to argue that “private, consensual, out of working hours homosexual conduct” posed no security threat and should therefore not be a bar to employment, they got back a stinging rejection letter from him.

In a missive dated Feb. 25, 1966, Macy laid out his case: “Pertinent considerations here are the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of common toilet, shower and living facilities [and] the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact Government business…”

That basic position — that the presence of gay workers was disruptive to the efficiency of the federal workforce — played out in the case of Dew (who, like Cox, has since died). An Air Force veteran who served during the Korean War, Dew (who also was African American) had initially gotten a job as a CIA file clerk. To obtain his security clearance, he was required to submit to a polygraph test and admitted to having engaged in at least four “unnatural sex acts with males” in 1950 when he was a teenager in college in North Carolina.

Dew was then permitted to resign from the CIA. Later, in 1956, he landed a new federal job with the Civil Aeronautics Authority, the predecessor of the FAA, as an air traffic controller in Denver. He is believed to have been the first African American to hold such a position, prompting Francis — who researched his case — to label Dew “the Jackie Robinson of air traffic controllers.”

At that point, Dew was a married man with a baby on the way. But his past soon caught up with him. In May 1958, with no complaints about his service as an air traffic controller, he was “shocked,” according to the Mattachine Society brief, to receive a letter informing him that he had been deemed “unsuitable” for his position based on his previous, pre-employment admission that he had engaged in homosexual acts.

Dew spent the next six years challenging his dismissal, both before federal appeals examiners and in federal court, arguing that his firing had been unrelated to his job performance and violated preferences he was due as an Air Force veteran.

When his case finally reached the Supreme Court in 1963, there is some evidence, in one document uncovered in Civil Service Commission files, that Cox was initially “unwilling” to argue the government’s case because there was sufficient evidence of Dew’s “rehabilitation.”

But Cox did so anyway. His 1963 brief offers multiple arguments to refuse Dew’s bid to get his federal job. Besides concerns that co-workers would be disturbed by Dew’s past “immoral” conduct, “the bare commission of these acts raises legitimate doubts as to [Dew’s] reliability,” Cox wrote in his brief asking the Supreme Court to deny hearing Dew’s case.

In the end, Cox and the FAA did not prevail. The Supreme Court agreed to hear Dew’s case, and the FAA quickly chose to settle, reinstating him and paying him $12,000 in back wages.

But the Mattachine Society argues in its brief that this was only a tactical retreat to avoid an adverse Supreme Court ruling. The Civil Service Commission tightened its standards — requiring “clear and definite information” of evidence of “homosexuality or sexual perversion,” not merely past conduct. But it continued to enforce the ban on gay workers for years to come.

Although chipped away by the courts, the Eisenhower executive order was not formally rescinded until 1998, by President Bill Clinton.

“The Dew case taught the government that it had to tighten its procedures and find other ways to continue to ban LGBT Americans from public employment,” the Mattachine Society argues in its brief. “The government demonstrated its willingness to use all of its resources to crush homosexuals and those who engaged in homosexual acts with its suitability standards.”

The brief continues: “Never was a case of animus against a group of citizens so obvious, and the irony is that Dew was not even a homosexual.”