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DOE v. WEBSTER

June 4, 1991

JOHN DOE, Plaintiff,
v.
WILLIAM H. WEBSTER, Director, Central Intelligence Agency, Defendant


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON

AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE.

 This case was remanded from the United States Supreme Court. At issue is whether plaintiff, John Doe, has a colorable constitutional claim arising out of his discharge from the Central Intelligence Agency.

 I. BACKGROUND

 John Doe began employment with the Central Intelligence Agency (hereinafter "CIA") in 1973 as a clerk-typist. His evaluations consistently rated him outstanding or excellent. By 1977, Doe had been promoted to a covert electronics technician.

 In January 1982, Doe voluntarily informed a CIA security officer that he was a homosexual. Shortly thereafter, the CIA placed him on paid administrative leave and conducted an investigation concerning the security implications of his homosexual conduct. During the investigation, which involved several interviews and a polygraph test, Doe admitted engaging in homosexual conduct, but denied ever having relations with any foreign national or having disclosed classified information to any sexual partner. Doe was shown the report of the interviews and the test, and he submitted a two-page statement to the Agency commenting on the report.

 On April 14, 1982, Doe was informed by the Agency's Office of Security that his homosexuality posed a threat to security, and he was asked to resign. When he refused to do so, the Office of Security recommended to the Director of the CIA that he be dismissed. He was dismissed by the Director's order on May 7, 1982. Doe was advised that the CIA would give him a positive recommendation in any future job search, but if he applied for a job requiring a security clearance, the Agency would inform the prospective employer that it had concluded that his homosexuality presented a security threat.

 II. CONSTITUTIONAL CLAIMS

 Doe has three unresolved constitutional claims: (a) he claims that he has an equal protection claim; (b) he claims that he has a right to privacy; and (c) he claims that he has a due process property interest in employment.

 A. Equal Protection Claim

 Doe does not have a colorable equal protection claim if the Court finds a rational basis for the termination of his employment. It is widely held that the appropriate level of equal protection constitutional analysis to be employed in cases involving homosexuals is "rational basis" analysis. See Padula v. Webster, 261 U.S. App. D.C. 365, 822 F.2d 97 (D.C. Cir. 1987); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990). In those cases, both Courts rejected attempts by the plaintiffs to gain heightened constitutional protections for homosexuals as a suspect or quasi-suspect class. Therefore, the appropriate standard which applies to Doe is not that of "strict scrutiny," but rather "rational basis." If an action or policy is based on a suspect classification such as race, alienage, or national origin, that is when the strict scrutiny standard is applied. *fn1" When the strict scrutiny standard is applied, the classification will be sustained only if it is suitably tailored to serve a compelling government interest.

 Secondly, classifications which are based on illegitimacy or gender are subject to a "quasi-suspect" classification. There is an intermediate level of judicial scrutiny applied. It will only be upheld if the classification is "substantially related to an important governmental interest." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985).

 If the classification falls into neither category of suspect nor quasi-suspect class, the rational basis standard is used. The issue then is whether the CIA's decision to terminate Doe's employment, based on his homosexual conduct is rationally related to the CIA's national security responsibilities. If so, the action is presumed to be valid and will be sustained.

 Here, the CIA's reason for the discharge was that Doe's homosexual conduct was a threat to national security. Doe must concede that the CIA, as the primary agency responsible for collecting foreign intelligence and protecting the secrecy of information important to our national security, has a legitimate, interest in ensuring that its employees are not susceptible to breaches of security.

 In Padula v. Webster, 261 U.S. App. D.C. 365, 822 F.2d 97 (D.C. Cir. 1987), the Court of Appeals recognized that the specialized functions of the Federal Bureau of Investigation, including "counterintelligence duties that involve highly classified matters relating to national security," rationally justified consideration of homosexual conduct that could adversely affect the FBI's responsibilities. 822 F.2d at 104. The rationale that homosexuals may be subject to blackmail and coercion has been recognized in many opinions. See Padula, 822 F.2d at 104 (it is not irrational for the [FBI] to conclude that the criminalization of homosexual conduct coupled with the general public opprobrium toward homosexuality exposes many homosexuals, even "open" homosexuals, to the risk of possible blackmail to protect their partners, if not themselves."); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 578 n. 13 (9th Cir. 1990) ("We conclude that the targeting of homosexuals by hostile intelligence agencies is a legitimate if not compelling justification.").

 As a result, it is evident that the discharge is rationally related to the legitimate government security interest in collecting foreign intelligence and protecting the nation's secrets. Clearly, the CIA has a responsibility to ensure that its employees are not subject to threats and coercion. Homosexuals engaging in homosexual conduct pose a greater security risk than heterosexuals. Doe may be particularly susceptible to blackmail and coercion by hostile intelligence agents to protect himself or his partners even if he has admitted his homosexuality to friends and family. The fact is that homosexual conduct is a characteristic that hostile intelligence services are likely to target, and at least some homosexuals may be coerced or manipulated.

 Doe asserts that because heterosexuals may also be subjects of hostile intelligence coercion, it is irrational to assume that homosexuals are more likely than heterosexuals to pose a security risk. However, in High Tech Gays, the Court recognized that foreign services do in fact target homosexuals for possible exploitation. The CIA should not be required to ignore homosexual conduct when assessing the risk of that conduct on their employees. Thus, the termination of CIA employment, based on admitted homosexual conduct, ...


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