Frank Kameny, JFK, & the Case for LGBTQ+ Rights

(This post is adapted from a post published on our previous blog on 1/11/2014.)

By Stacey Flores Chandler, Reference Archivist

In 1953, President Dwight D. Eisenhower signed an Executive Order that changed the course of American history – and not just in the way the government planned. E.O. 10450 made “dishonest, immoral, or notoriously disgraceful conduct” – including so-called “sexual perversion” – grounds for firing any federal government employee. The order opened the door for agencies and the military to find, fire, and even publicly out suspected “homosexuals” in what’s now called the Lavender Scare.

Thousands had lost their jobs under E.O. 10450 by 1957, when Franklin E. Kameny, a young veteran with a new PhD in astronomy, started his dream job as an astronomer with the U.S. Army Map Service. But just a few months in, the U.S. Civil Service Commission started to suspect that Kameny might be gay. Investigators asked him about his relationships with men, but Kameny wouldn’t answer, explaining that “these were matters of his own personal life…having no relation to his performance in the position for which he was hired.” The Army disagreed and fired Kameny in 1958 for “immoral conduct.”

28.
immoral, it may do so, but it must do so in clear and explicit language, applied to particular acts considered immoral. The present regulation serves merely as a catch-all, which enables the Commission officials of the moment to indulge their personal prejudices (or those of their prejudices which they believe they can safely indulge in this context). This will be demonstrated further in Argument 6, below.
This court and others have thrown out laws relating to obscenity, because those laws were too vague and inexplicit. A less explicit regulation than this one would be hard to find indeed. 
Thus the Civil Service Commission's regulation is too broad and vague to have legal weight or meaning, or to convey to the citizen any useful intelligence or to be implementable except in a totally arbitrary and capricious manner as was done here, and hence is invalid.
This alone is sufficient to invalidate the Civil Service Commission's action. But we have:
4) The Argument Against the Constitutionality of the Civil Service Commission's Regulation
Even were the Civil Service Commission's action factually supported, and procedurally correct, and its regulation legally valid (as they are not), however, the regulation invoked here is unconstitutional under the First, Ninth, and Tenth Amendments to the Federal Constitution.
Any decision as to morality and immorality is a matter of a citizen's personal opinion and his individual religious belief.
For the Commission - or any other agency or branch of the government - to declare a course of conduct 
29.
immoral, and to act upon that declaration, is for it to attempt to tell the citizen what to think and how to believe. This  the government may not do under the First Amendment to the Constitution.
Within the narrow framework of this particular argument (although certainly not from the broader viewpoint of this petition as a whole) the Commission's regulations may, if the Commission wishes, declare employees unsuitable upon grounds of homosexual acts per se, and if their nature and details are clearly specified, but it may not tell him that his acts, or any acts, are immoral.
For the government to subscribe, in this explicit fashion, to a particular definition of immoral acts is tantamount to its establishing certain religious beliefs and discarding or disowning others, and to setting up an implicit religious test for the holding of public employment. Granted that these beliefs may be those of a majority (albeit a diminishing majority) of the public, and granted that in certain cases (again, within the restricted framework of this argument only) the government may base specific law, statue and regulation upon such beliefs about morality, still, the government may not, by the First Amendment, take an explicit stand upon the immorality itself of certain acts. 
The explicit substance and fabric of our government are written law, not morality, whatever may be the real or ostensible implicit basis beneath that law, and it is not within the framework of legality and illegality, not morality and immorality, that the government must actually function. The Civil Service Commission has not done so, and is not doing so now.
NAID 26318494. Pages 28-29 of Frank Kameny’s Petition for a Writ of Certiorari #676, 1960. Series: Numerical Applications for Action, 1912-2017, Record Group 267: Records of the Supreme Court of the United States, 1772-2007, U.S. National Archives.

He quickly appealed to federal courts and lost twice, but when his case reached the Supreme Court in 1960, Kameny decided to try something groundbreaking: instead of denying he was gay (as fired workers often did), he’d argue that the government had no business declaring homosexuality as immoral. The Court wouldn’t review his claim (accessible in full here), but Kameny had already made history; his was the Supreme Court’s first civil rights claim based on sexual orientation.

Being fired under E.O. 10450 – and fighting back in court – shifted Kameny’s entire life plan; he became a full-time, lifelong activist for gay rights. Less than a year after his case was dismissed, he formed the grassroots advocacy group the Mattachine Society of Washington and set his sights on equal treatment and employment rights for gay Americans. Kameny sent letters arguing his case to officials across the entire government – including at the very top – and the John F. Kennedy administration received its first letter from Kameny a few months after the Inauguration. The letter, the first of several that are now part of our archives, was the start of his group’s effort “to stand up for their rights and freedoms.” Kameny explained:

2435 16th Street, N.W.
Washington 9, D.C.
May 15, 1961

President John F. Kennedy
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C.

President Kennedy:
I write to you for two reasons: (1) To ask that you act as a "court of last appeal" in a matter in which I believe that you can properly act as such; and (2) perhaps much more important, to bring to your attention, and to ask for your constructive action on, a situation involving at least 15,000,000 Americans, and in which a "New Frontier" approach is very badly needed. These people are our nation's homosexuals - a majority group in no way different, as such, from the Negroes, the Jews, the Catholics, and other minority groups. 
May I take the liberty of requesting that, because of the importance of this question to such a large number of citizens, this letter, and the enclosed material, despite their length, be read and replied to by you personally, rather than merely by one of your aides.
The enclosed US Supreme Court brief, written by me for myself, present the entire story. The three sections headed "Questions Presented," Statement," and "Reasons for Granting the Writ" present my case. The majority of the case for the homosexual, generally, will be found on pp. 33-56 and, also, on pp. 22-33. The petition was unfortunately denied by the Supreme Court on March 20, 1961. By well-established precedent, this, of course, represents no judgment upon the merits of the case.
In World War II, I willingly fought the Germans, with bullets, in order to preserve and secure my rights, freedoms, and liberties, and those of my fellow citizens. In 1961, it has, ironically, become necessary for me to fight my own government, with words, in order to achieve some of the very same rights, freedoms, and liberties for which I placed my life in jeopardy in 1945. This letter is part of that fight.
The homosexual in the United States today is in much the same position as was the Negro about 1925. The difference is that the Negro, in his dealings with his government, and in his fight for his proper rights, liberties, and freedoms, has met, at worst, merely indifference to him and his problems and, at best, active assistance; the homosexual has met only active hostility from his government.
The homosexuals in this country are increasingly less willing to tolerate the abuse, repression, and discrimination directed at them, both officially and unofficially, and they are beginning to stand up for their rights and freedoms as citizens no less deserving than other citizens of those rights and freedoms. They are no longer willing to accept their present status as second-class citizens and as second-class human beings; they are neither.
Statistics on the sharply-rising members of homosexuals who are fighting police and legal abuses, less-than-fully-honorable discharges from the military, security-system disqualifications, and who are taking perfectly proper and legal advantage of military policies and prejudices and draft-board questions to escape the draft, etc., etc., will, I believe, bear me out.

In World War II, I willingly fought the Germans…In 1961, it has, ironically, become necessary for me to fight my own government, with words, to achieve some of the very same rights, freedoms, and liberties for which I placed my life in jeopardy in 1945.

JFKWHCNF-1418-002-p0002

Over the years, his letters to President Kennedy made varied and detailed arguments, but there was one tactic Kameny deployed most: using the President’s own ideas, and sometimes his exact words, to make the case for gay rights. His first letter to JFK referenced a famous Kennedy campaign speech, and asked for a “New Frontier” in the country’s treatment of his community. Later in the same letter, he quoted another Kennedy speech to point out the gap between political rhetoric and the lived experience of marginalized people:

3.
(listed here in no particular order) and a fifth general one. These are: (1) The law, and the mode and practices of its administration and enforcement, and the abuses thereof; (2) Federal employment policies; (3) The policies, practices, and official attitudes of the military; (4) security-clearance policies and practices in government employment, in the military, and in private industry under government construct; and (5) The education of the public and the changing of their primitive attitudes. No construction action has ever been taken in any of these areas.
Yours is an administration which has openly disavowed blind conformity. Here is an unconventional group with the courage to be so. Give them the support they deserve as citizens seeking the pursuit of happiness guaranteed them by the Declaration of Independence.
You yourself said, in your recent address at George Washington University, "that (people) desire to develop their own personalities and their own potentials, that democracy permits them to do so." But your government, by its policies certainly does not permit the homosexual to develop his personality and potential. I do not feel that it is expecting too much to ask that governmental practice be in accord with administration verbiage.
At present, prominently displayed at the entrance to each of the Civil Service Commission's buildings is an excerpt for another statement of yours, in which you said "let it be clear that this Administration recognizes the value of daring and dissent." I have demonstrated that I have the daring to register public and official dissent in an area wherein those directly involved have never before dared register such dissent. May I ask that my government show equal daring and dissent in "coming to grips" with this question in a proper and constructive fashion. Let more than mere lip service be given to laudable-sounding ideals!
I can close in no better a fashion than by quoting Thomas Jefferson:
"I am not an advocation for frequent changes in laws and constitutions. But laws and constitutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstance, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
His words could not be more aptly quoted than in this regard. Let us, as we advance into the Space Age, discard the policies and the attitudes, the "laws and constitutions," the customs and institutions of the Stone Age.
I shall be more than merely pleased to have the privilege of discussing this matter with you by letter, by telephone, or directly, entirely at your convenience. I can be reached at the address at the head of this letter, or at the D.C. telephone numbers Columbia 5-4360 during most non-working hours, and Oliver 6-3600 during the working day.
Thank you for your consideration of the matters presented here. I look forward to your reply.
Most sincerely yours, 
Franklin E. Kameny

You yourself said in your recent address at George Washington University ‘that (people) desire to develop their own personalities and their own potentials.’ But your government…certainly does not permit the homosexual to develop his personality and his potential. 

JFKWHCNF-1418-002-p0004

“Let more than mere lip service,” he demanded, “be given to laudable-sounding ideals!”

In August 1962, Kameny sent another letter to the President, arguing that homophobic employment policies were “inexcusably and unnecessarily wasteful of trained manpower.” In this letter, Kameny argued for gay worker protections by invoking one of the most famous Kennedy phrases:

You have said ‘Ask not what your country can do for you, but what you can do for your country.’ We know what we can do for our country; we wish to do it; we ask only that our country allow us to do it.

Franklin Kameny to John F. Kennedy, August 28, 1962.

Kameny also sent Mattachine Society pamphlets and reports to President Kennedy, laying out some of his other goals for the community. Some of the documents foreshadow Kameny’s famous fight to remove “homosexuality” from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (after several presentations from Kameny, the APA voted to remove the listing in 1973).

Discrimination Against the Employment of Homosexuals
I. Introduction
A. Premises
The homosexual is one whose direction of choice of a sexual partner differs from that of the majority of the citizenry in what he is attracted to and chooses partners of his or her own sex. 
Homosexuality is neither a sickness, disease, neurosis, psychosis, disorder, defect, nor other disturbance, but merely a matter of the predisposition of a significant of a significantly large minority of our citizens.
Homosexuals are a minority group, no different, as such, from others; and their problems are those of prejudice against minorities - prejudice and discrimination as unreasonable and as ill-founded as those directed against others of our minorities.
B. Statistical Background
Lest this be considered an area too small and unimportant for this committee, a very brief background survey is in order.
While estimates of the number of homosexuals vary, and (unlike the cases of the Negro, the Jew, and others) exact figures are impossible to obtain, an informed reading of the Kinsey Report, combined with intelligent observation, leads to an estimate of at least 10 per cent of the non-juvenile population of the country (both men and women).
There is a strong tendency for homosexuals to migrate from rural to urban areas, and from small urban areas to large ones. Therefore, as a reasonable figure with which to work, one may say that 10 per cent of the total population of a large metropolitan area such as Washington is homosexual.
Thus some 15,000,000 American citizens, and some 250,000 residents of the Washington area, are homosexuals. This makes the makes the homosexual community one of the largest of the national and the local minority groups.
C. General Employment Situation
The general employment situation for homosexuals can be summed up very briefly: Virtually anyone known to be a homosexual is unemployable, regardless of all other aspects of his background [end page]

Homosexuality is neither a sickness, disease, neurosis, psychosis, disorder, defect, nor other disturbance, but merely a matter of the predisposition of a significantly large minority of our citizens.

JFKWHCNF-1418-002-p0017

As Kameny and the Society kept sending letters to the White House throughout 1962 and 1963, they expressed frustration that the President and his team didn’t have much to say in response. In fact, the only reply we’ve found in the President’s papers is a brief note from Civil Service Commission Chair John W. Macy to Mattachine Society Secretary Bruce Schuyler, after Schuyler requested a meeting. Macy wrote:

United States Civil Service Commission
Washington 25, DC
Sep 29 1962
Mr. Bruce Schuyler, Secretary
The Mattachine Society of Washington
PO Box 1032
Washington 1, DC
Dear Mr. Schuyler:
Your letter of August 28 1962 and attachments relating to the purposes of the Mattachine Society of Washington have been read with interest. It is the established policy of the Civil Service Commission that homosexuals are not suitable for appointment to or retention in positions in the federal service. There would be no useful purpose served in meeting with representatives of your Society.
Sincerely yours, 
/s/
John W. Macy, Jr. 
Chairman

It is the established policy of the Civil Service Commission that homosexuals are not suitable for appointment to or retention in positions in the Federal service. There would be no useful purpose served in meeting with representatives of your Society.

JFKWHCNF-1418-002-p0025

Concerned by his government’s disinterest, Kameny wrote to Ted Sorensen, Special Counsel to the President, in March 1963. Kameny noted that his group had tried to work quietly with the government to address discriminatory policies – and warned that if officials continued to dismiss them, his community would take its cue from the Black Civil Rights Movement and shift to more visible protest.

The Mattachine Society of Washington
March 6, 1963
Mr. Theodore C. Sorensen
Special Counsel to the President
The White House
Washington DC
Dear Mr. Sorensen:
I queried you on Sunday evening, March 3, at All Soul's Unitarian Church, in regard to Federal Government discrimination against the homosexual community. I received the astounding and incredible reply that you were unaware of such discrimination.
In order to inform you of the situation, I enclose (1) A report recently presented to the DC Advisory Committee on Equal Employment Opportunity; a subcommittee of the US Commission on Civil Rights. The report is entitled: Discrimination Against the Employment of Homosexuals; (2) A copy of a letter, dated August 28, 1962 (and enclosures) sent to the President of the United States, and thus far unanswered; (3) a copy of a follow-up letter very recently sent to the President of the United States. Please note that Item (1) has appended to it a copy of a letter from the US Civil Service Commission's Chairman, John W. Macy, Jr., setting forth, bluntly and clearly, present Federal policy on these matters - a policy which differs in no way from Southern policies of exclusion of the Negro, and is not one whit more justifiable.
We are very well aware that this is a delicate question, Mr. Sorensen, with potentially explosive political implications. However, it will only become increasingly explosive if no constructive action is taken on it. We have stated, in all good faith, in our letter to the President, that we do not wish in any way to embarrass the administration or anyone in it. But we are absolutely determined that constructive action WILL be taken on this question. We WILL achieve the rights for which we are fighting, which are properly ours, and which we do not now have.
We wish to cooperate in any way possible, if the chance for friendly, constructive cooperation is offered to us by you, but if it continues to be refused us, then we will have to seek out and to use any lawful means whatever, which seem to us appropriate, in order to achieve our lawful ends, just as the Negro as done in the South when he was refused cooperation.
This is a problem which affects 15,000,000 American citizens - almost as many as there are Negroes - a group who see themselves excluded, as a matter of course, from every statement on equal opportunity for all, from denials that this country has second-class citizens, and from efforts to achieve, maintain, and protect the rights and freedoms of all citizens; and who are as rapidly losing patience with the hypocrisy involved, as has the Negro community in its struggle.
If you truly did not know about the situation before this, you now know at least a little about it. We can supply you with as much additional information as you might seek.
With the preceding established, we ask you again the question which was asked on the evening of March 3: Does the Administration plan to take any constructive action in regard to present high discriminatory Federal policies and practices in regard to homosexuals? If so, what and when? If not, why not? [end of page]

…We will have to seek out and to use any lawful means whatever, which seem to us appropriate, in order to achieve our lawful ends, just as the Negro has done in the South when he was refused cooperation.

JFKWHCNF-1418-002-p0006

The government didn’t address any of Kameny’s concerns, so in 1965, he followed through on his letter and organized the first protest for gay rights to ever take place in front of the White House. Ten years later, the Civil Service Commission ended its policy broadly banning gays and lesbians from federal service – but other restrictions, including those barring openly LGBTQ+ people from serving in the military or accessing classified information – stayed in place for several more decades. E.O. 10450 was formally repealed in its entirety on January 17, 2017.

Though Kameny passed away in 2011 without ever working as a professional astronomer again, he remained an outspoken leader in the LGBTQ+ rights movement for the rest of his life (and he even pops up again in our archives, in records related to the 1972 Presidential race). In 2009, when the U.S. government issued a formal apology to Kameny for its discrimination against him, he noted: “In a sense, it took 50 years – but I won my case.”

NAID 157649816. President Barack Obama meets Dr. Franklin E. Kameny during the signing of a Presidential Memorandum granting benefits to federal employees with same-sex partners, June 17, 2009. Photograph by Pete Souza, Records of the White House Photo Office, Barack H. Obama Presidential Library.

To learn more about Frank Kameny, the mid-20th century LGBTQ+ rights movement, and the Lavender Scare, check out these sources:

  • The Kameny Papers Project
  • Oral history interview of Franklin E. Kameny. Franklin E. Kameny Collection, Veterans History Project, American Folklife Center, Library of Congress
  • The Deviant’s War: The Homosexual vs. the United States of America, by Eric Cervini
  • The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government, by David K. Johnson
  • Gay Is Good: The Life and Letters of Gay Rights Pioneer Franklin Kameny, by Michael G. Long

With special thanks to Charles Francis, founder of The Kameny Papers project.

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