Procedural Posture

The plaintiff challenged a decision of the FBI not to hire her, alleging that it was based solely on her sexual orientation and therefore violated the defendant’s own policy as well as the plaintiff’s constitutional rights. The District Court allowed the defendant’s motion for summary judgment and dismissed both the plaintiff’s claims. The plaintiff appealed.

Facts

The plaintiff had applied for a position as a special agent with the FBI. Following the first screening tests, the FBI had conducted a routine investigation on her background that disclosed her homosexuality. During a follow-up interview the plaintiff confirmed that she was a lesbian. After some time, the FBI notified the plaintiff that it was unable to offer her a position, asserting that she had been rejected due to intense competition for the position. The plaintiff, contesting this, alleged that the decision had been taken solely on the basis of her sexual orientation.

Issue

Whether the FBI’s decision not to hire the plaintiff on the basis of her sexual orientation violated the right to Equal Protection guaranteed by the 14^th Amendment of the United States Constitution.

Domestic Law

Administrative Procedure Act.

Constitution of the United States, 14^th Amendment (Equal Protection).

Bowers v. Hardwick, United States Supreme Court, 1986 (upholding the constitutionality of State law criminalising sodomy).

Dronenburg v. Zech, United States Court of Appeals for the District of Columbia, 1984 (holding that the discharge of a petty officer from the Navy for engaging in homosexual conduct was justified).

Reasoning of the Court

The Court considered two issues. The first was whether the hiring decisions of the FBI could be subjected to judicial review. The Court held that hiring decisions could be judicially reviewed.

The second was whether the agency had relied on constitutionally prohibited factors. The plaintiff argued that the decision not to hire her on the basis of her sexual orientation had denied her the equal protection of the law guaranteed by the 14^th Amendment. She also requested that sexual orientation be recognised as a “suspect” or “quasi-suspect” classification and that, therefore, any differential treatment on that basis ought to be subjected to strict judicial scrutiny.

The Court noted that the parties disagreed about the description of the class in question. The FBI argued that its policy focused only on homosexual conduct and not on sexual orientation per se. The plaintiff, on the contrary, maintained that “homosexual status is accorded to people who engage in homosexual conduct”. Given that the plaintiff did not identify herself as a homosexual who did not engage in homosexual conduct, the Court found the definitional disagreement irrelevant.

The issue was thus whether “homosexuals, defined as persons who engage in homosexual conduct”, constituted a “suspect” or “quasi-suspect” classification, and whether the FBI’s hiring decision was subject to strict or heightened scrutiny. The respondents argued that two recent cases, Bowers v. Hardwick and Dronenburg v. Zech, were insurmountable barriers to the plaintiff’s claim. The Court agreed.

In Dronenburg, a navy officer who had been dismissed from the Navy for engaging in homosexual conduct argued that his constitutional rights to privacy and equal protection had been violated. The court had held that the right to privacy included no right to engage in homosexual conduct. As for the right to equal protection, it was only infringed if the Navy’s policy was not rationally related to a permissible end. Given the specialised function and “unique needs” of the military, the court had held that the discharge for homosexual conduct was justified.

In Hardwick, the Supreme Court had upheld a Georgia law criminalising sodomy. It held that the right to privacy only concerned family relationships, marriage and procreation and did not extend to all kinds of private sexual conduct between consenting adults. A “right to engage in consensual sodomy” was not constitutionally protected since it was neither implicit in the concept of liberty nor “deeply rooted in this Nation’s history and tradition”. The judicial review therefore only had to consider whether the law had a rational basis. The court had held that “the presumed beliefs of the Georgia electorate that sodomy is immoral provide an adequate rationale for criminalizing such conduct”.

The Court found that the reasoning in Dronenburg and Hardwick precluded “suspect” classification status for sexual orientation. The Court emphasised that it would have been “quite anomalous, on its face, to declare a status defined by conduct that states may constitutionally criminalise as deserving of strict scrutiny under the equal protection clause”. Moreover, the Court noted, if the Supreme Court was: “unwilling to object to state laws that criminalise the behaviour that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”

Nevertheless, this did not mean that every act of discrimination based on sexual orientation was constitutionally authorised: laws and government practices needed to pass the rational basis test of the equal protection clause, if challenged. A governmental agency that discriminated against homosexuals thus had to justify the discrimination in terms of “some government purpose”.

The Court noted that the FBI was a national law enforcement agency whose agents had to be able to work in all the States of the United States. To have agents engaging in conduct that was criminalised in several states would “undermine the law enforcement credibility” of the agency. Moreover, it was not irrational for the FBI to fear that homosexual conduct could expose its agents to the risk of blackmail.

Therefore, drawing a comparison with Dronenburg, the Court concluded that the FBI’s specialised functions rationally justified the consideration that homosexual conduct could adversely affect the agency’s ability to carry out its responsibilities.

The Court affirmed the decision of the District Court.

Padula v. Webster (Director, FBI), United States Court of Appeals for the District of Columbia (full text of judgment, PDF)