Court Can Review CIA Firing of Gay Employee : Supreme Court Rules, 6 to 2, That Hearing Is Due, Avoids Issue of Homosexual Employment Rights

The Supreme Court, dealing the CIA a sharp setback, ruled Wednesday that a homosexual employee is entitled to a court hearing to fight his dismissal from the intelligence agency.

The high court has never ruled on whether gays have employment rights under the Constitution that may not be abridged, and it pointedly avoided answering that question Wednesday.

But on a 6-2 vote, the justices refused to allow the CIA to dismiss an admitted homosexual without explaining why. Instead, in an opinion by Chief Justice William H. Rehnquist, the court said that the gay employee had presented a reasonable claim that his constitutional rights were violated by his firing and that the CIA must defend itself against the claim in federal court.

Potentially Important

The decision was hailed as a potentially important one by gay rights groups, which have been trying to win a court ruling that the 14th Amendment to the Constitution bars government agencies from firing a worker because he is gay. The amendment says that the government may deny no person “the equal protection of the laws,” a clause that so far has been interpreted to bar most forms of racial or sexual discrimination.

“This seems to open the door, at least part way, to the equal protection claim,” said Thomas B. Stoddard, executive director of the Lambda Legal Defense and Education Fund, a national gay rights group.

The ruling also could threaten the virtually unlimited latitude that the secret intelligence agency has in making personnel decisions. Federal law gives the CIA director the authority to fire any employee whenever he “deems (it) in the interests of the United States.”

The decision was the second time this week that the high court has flatly rejected the Reagan Administration’s argument that the government is immune from legal attack. On Monday, the court said that the government could be sued for negligence if it approved a dangerous strain of a polio vaccine.

Admits His Homosexuality

The latest case involved an unnamed CIA electronics technician who was dismissed in 1982 just weeks after he admitted his homosexuality to his supervisor.

Defending the CIA, the Justice Department argued that the intelligence agency, perhaps more than any other branch of the government, should be “insulated” from attack in the courts over its personnel moves.

But the Supreme Court, normally deferential to the military and the national security agencies, refused to accept that argument.

“Nothing in the (CIA’s authorizing law) persuades us that Congress meant to preclude consideration of . . . constitutional claims arising out of the actions of the director,” Rehnquist wrote. “We believe that a constitutional claim based on an individual discharge may be reviewed by a district court.”

Sent to Trial Judge

Without further guidance, the high court sent the case back to a trial judge to decide whether the rights of “John Doe” were violated by the CIA officials who fired him.

In dissent, Justice Antonin Scalia complained that the court ruling will lead to the “creation of the world’s only secret intelligence agency that must litigate the dismissal of its agents.” He contended that not all constitutional claims may be settled by the federal courts. Justice Sandra Day O’Connor also dissented, while Justice Anthony M. Kennedy took no part in the decision since he joined the court after the case (Webster vs. Doe, 86-1294) was argued.

“This is an important ruling for what it says about the CIA and a modest step forward for gay rights,” said Morton H. Halperin of the American Civil Liberties Union, whose Washington office represented the employee. “It means the actions of the director of the CIA are not beyond constitutional review, and it leaves us free to make the constitutional argument in the lower courts.”

Halperin noted that the employee in the case was a nine-year veteran of the agency with good job performance marks who had admitted his homosexuality to friends and co-workers.

Has ‘Nothing to Hide’

“He has nothing to hide, so they can’t argue that he can be blackmailed,” he said. The man has refused to reveal his name in the court record because he wants his undercover job back, not because he fears being exposed as a homosexual, Halperin said.

When the case returns to federal court, “we will argue that discrimination on the basis of sexual orientation is unconstitutional,” he said.

In February, a three-member federal appeals court panel in San Francisco ruled as unconstitutional the Army’s policy of refusing re-enlistment to known homosexuals. While it may be legal to penalize a soldier for homosexual acts, the Army could not reject a soldier simply because of a stated inclination toward homosexuality, the appellate court said.

However, the U.S. 9th Circuit Court of Appeals announced last week that it would reconsider that ruling before an 11-member panel.

Regardless of how the appellate panel decides the Army case, or how a trial judge decides the case of the fired CIA agent, the issue is nearly certain to return to the Supreme Court.

Georgia Anti-Sodomy Law

In 1986, the justices cast a pall over the notion that gay rights were constitutionally protected by upholding a Georgia anti-sodomy law on a 5-4 vote. It ruled that the right to privacy could not be extended to cover unlawful homosexual acts.

But job rights may pose a different question for the court. In addition to guaranteeing citizens the equal protection of the laws, the Constitution, in both the 5th and 14th Amendments, says that no person may be deprived of liberty and property without due process of law. A job is considered property, according to the federal courts.

If the trial court accepts the employee’s claim that as a homosexual he has a constitutional right to be protected from job discrimination, the CIA must show that it had a compelling reason for ridding its ranks of homosexuals. In the past, the agency has argued that all homosexuals pose a security risk as a potential target for foreign espionage efforts. In the pending Army case, lawyers for the military say that the presence of homosexuals would destroy morale.

Calls Record Confusing

In his opinion, Rehnquist said that the court record is confusing, and he urged the trial court to find out whether the CIA has a blanket policy of firing homosexuals.

In another action, the court reaffirmed its landmark rulings that the police may not question a suspect after he has invoked his right to have a lawyer present (Arizona vs. Roberson, 87-354).

In 1966, the high court in Miranda vs. Arizona said that suspects must be told of their right to remain silent or to have a lawyer present before answering questions. In 1981, in another case from Arizona, the court said flatly that questioning must cease after the suspect requests a lawyer. In this case, involving a burglary suspect who told police that he wanted to see a lawyer, Arizona prosecutors said police should nevertheless be permitted to question the man about a second burglary. The court ruled that the police could not.