In a rare agreement on an LGBT-related matter, the Trump administration is following the lead of the Obama administration in fighting a lawsuit filed last year by a gay rights group against the U.S. Department of Justice.
The lawsuit, filed by the Mattachine Society of Washington, D.C. in April 2016, calls on the DOJ to release thousands of documents linked to a massive purge of gay and lesbian employees of the federal government in the 1950s and 1960s.
Historians say the purge was triggered by a 1953 executive order issued by President Dwight D. Eisenhower that, among other things, associated homosexuals with “infamous, dishonest, immoral, or notoriously disgraceful conduct.”
The order asserted those falling under these categories, including homosexuals, posed a security risk and were unsuitable for federal government employment.
In its lawsuit, Mattachine Society accuses the DOJ of failing to adequately comply with a Freedom of Information Act request that the group submitted in 2013 seeking all internal documents from DOJ and the FBI that pertain to the enforcement of the Eisenhower executive order against gay or lesbian federal employees.
Under the direction of Obama Attorney General Loretta Lynch, the DOJ replied that it had conducted a good-faith search for the requested documents. It has since turned over to Mattachine about 2,000 documents related to the FOIA request.
In a motion filed in December in U.S. District Court for the District of Columbia during the last full month of the Obama administration, DOJ asked Judge Royce Lamberth to dismiss the lawsuit in a summary judgment decision.
The motion argues that the search categories requested by Mattachine for additional documents are “overly broad and, therefore, using them to search the FBI’s records for a 40-year period would constitute an unduly burdensome search that is unlikely to result in locating documents responsive to Plaintiff’s FOIA request.”
In its own brief opposing the dismissal motion Mattachine argues that the DOJ acknowledged in an addendum to its dismissal motion that a search using the term “pervert” yielded 5,500 hits for potential documents but it nevertheless said retrieving all of those documents would be overly burdensome.
“The government has ignored most of the Mattachine Society’s request with incredibly non-responsive documents that do not even come from the critical period of 1953,” said Mattachine Society President Charles Francis. Francis noted that previously released records show that between 7,500 and 10,000 federal employees were fired or pressured to resign on grounds of homosexuality in 1953 alone as a result of the Eisenhower Executive Order 10450.
In its opposition to the dismissal motion Mattachine also argues that a DOJ claim that it could not find any homosexual related documents linked to then-Assistant U.S. Attorney Warren Burger, who was in charge of enforcing the Eisenhower executive order, lacks credibility. Burger subsequently became Chief Justice of the U.S. Supreme Court.
“Most especially, historians need to understand the role of Chief Justice Warren Burger, who was tasked with enforcing the ‘sexual perversion’ order in 1953 when he was Assistant Attorney General,” Francis said. “These Burger papers would be under the control of the FBI and the DOJ. Why won’t they release them?”
On March 27, under Trump Attorney General Jeff Sessions, DOJ filed a supporting addendum to its motion to dismiss the lawsuit. The addendum says the FBI had inadvertently failed to enter Burger’s name in its search for documents requested by Mattachine but it has since conducted a full search for Burger related documents.
“The FBI’s search efforts located records broadly responsive to Mr. Burger,” the DOJ addendum says. “[H]owever, after reviewing these results, the FBI has determined that none of these records were responsive to Plaintiff’s specific FOIA request for Mr. Berger’s involvement with Executive Order 10450.”
Judge Lamberth was expected to issue a ruling on the motion to dismiss the lawsuit within the next 60 to 90 days, according to court observers. If he denies the dismissal motion steps would be taken to schedule a trial after an effort to determine whether an out of court settlement could be reached.
Mattachine is being represented in court by the D.C. law firm McDermott Will & Emery on a pro bono basis.
The Mattachine Society of Washington, D.C. was co-founded by D.C. gay rights pioneer Frank Kameny in the early 1960s as the city’s first widely recognized gay rights organization. Francis played a lead role in reactivating the group in recent years as an advocate for uncovering long hidden documents showing how gays were persecuted by the federal government in past years.