Courts Can Review CIA Firing of Gay Employee, Justices Rule : O’Connor Joins Dissenting Scalia in Sharp Rebuke

The Supreme Court, in a victory for homosexuals fighting employment discrimination, ruled today that federal courts can review a decision by the CIA to fire a gay employee.

In a 6-2 decision written by Chief Justice William H. Rehnquist, the court held that a homosexual employee of the spy agency may bring a claim in federal court charging his dismissal violated his constitutional rights.

The action sends the issue back to lower courts to decide whether the employee’s rights were violated.

The case is one of the few on the issue of homosexual rights to reach the court. While the court has upheld state laws making homosexual acts criminal, it has not spoken on whether a federal agency may discriminate against employees based on sexual orientation.

Right to Press Claim

Today’s ruling did not touch that question directly but did give the employee the right to press the claim in federal court, a necessary first step.

The court pointed out that constitutional claims are already brought to trial despite federal laws giving a CIA director wide powers to fire employees whenever he feels it necessary.

“(The CIA) complains that judicial review even of constitutional claims will entail extensive ‘rummaging around’ in the agency’s affairs to the detriment of national security,” Rehnquist said. “But (the CIA) acknowledges that Title 7 (race and sex discrimination) claims attacking the hiring and promotion policies of the agency are routinely entertained in federal court . . . and the inquiry and discovery associated with those proceedings would seem to involve some of the same sort of rummaging.”

Rehnquist was joined in the ruling by Justices William J. Brennan, Byron R. White, Thurgood Marshall, Harry A. Blackmun and John Paul Stevens.

Kennedy Not Involved

The ruling brought a sharp rebuke from Justice Antonin Scalia, who said in dissent that the action “brings a significant decision-making process of our intelligence services into a forum where it does not belong.” He was joined by Justice Sandra Day O’Connor. Justice Anthony M. Kennedy did not take part.

The case stemmed from the firing of a nine-year CIA employee, whose name has been withheld because of a government policy not to name CIA employees publicly.

“John Doe” began working for the CIA in 1973 at age 17 as a clerk-typist and was eventually promoted to a position as an electronics technician.

In January, 1982, Doe told a CIA security officer that he was a homosexual. He was placed on administrative leave, and the CIA conducted an investigation and gave Doe a polygraph test.

The polygraph test showed that he did not have sexual relations with any foreign nationals nor did he disclose any secret information to any sexual parters.

Nonetheless, the CIA fired him that May.