7 J.L. & Pol. 133 (1990-1991)
Unacceptable Risk or Unacceptable Rhetoric - An Argument for a Quasi-Suspect Classification for Gays Based on Current Government Security Clearance Procedures

handle is hein.journals/jlp7 and id is 143 raw text is: Unacceptable Risk or Unacceptable Rhetoric? An
Argument for a Quasi-Suspect Classification for
Gays Based on Current Government Security
Clearance Procedures
INTRODUCTION
Despite some advances in recent years, the gay' community's battle
for true equality in a dominantly heterosexual culture is far from over.2
This is particularly evident in the often thwarted efforts of gays, once
the subject of their homosexuality arises, to obtain or retain positions
of employment which relate to national security.- All too often, gays
are denied security clearance, or face unreasonable delays even if a
I Many lesbians and gay men believe homosexual, which literally means an orientation
toward the same sex, is an inadequate term because it suggests merely a physical condition.
On the other hand, gay connotes a sense of personal and spiritual identity. For the
purposes of this essay, homosexual will rarely be used since the author is aware that gay
is the preferred term.
Similarly, the author notes that all those who engage in homosexual conduct are not
necessarily gay and, conversely, that all those who engage in heterosexual conduct are not
necessarily straight. The distinction between conduct and orientation will be referred to
where appropriate.
2 According to one author, public acceptance of homosexuality is higher today than was
support for racial integration forty years ago. Weisberg, Gays in Arms, New Republic, Feb.
19, 1990, at 21.
It seems just as often that, for every step forward, there is a step backward. See High Tech
Gays v. Defense Industrial Security Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987),
rev'd, 895 F.2d 563 (9th Cir. 1990), reh'g denied, 909 F.2d 375 (9th Cir. 1990) (en banc)
(lower court finds gay plaintiffs constitute a quasi-suspect class but finding reversed on
appeal); Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988), affd on other
grounds, 875 F.2d 699 (9th Cir. 1989) (prior circuit court opinion that homosexual
orientation constitutes a suspect classification withdrawn on rehearing), cert. denied 111 S.Ct.
384 (1990). Compare with Bowers v. Hardwick, 478 U.S. 186 (1986) (Georgia anti-sodomy
statute upheld against man arrested for committing consensual sodomy in his own bedroom);
Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982), rev'd on reh'g, 769 F.2d 289 (5th Cir.
1985) (en banc), reh'g denied, 774 F.2d 1285 (5th Cir. 1985), cert. denied, 478 U.S. 1022
(1986) (upholding Texas statute regulating homosexual conduct which earlier was found
unconstitutional by the lower court).
3 See Dubbs v. Central Intelligence Agency, 866 F.2d 1114 (9th Cir. 1989); Padula v.
Webster, 822 F.2d 97 (D.C. Cir. 1987); McKeand v. Laird, 490 F.2d 1262 (9th Cir. 1973);
Finley v. Hampton, 473 F.2d 180 (D.C. Cir. 1972); Adams v. Laird, 420 F.2d 230 (D.C. Cir.
1969), cert. denied, 397 U.S. 1039 (1970); Marks v. Schlesinger, 384 F. Supp. 1373 (C.D. Cal.
1974).

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