A federal appeals court said Wednesday that there is evidence that the CIA routinely denies security clearances to homosexuals and refused to foreclose a legal challenge to the agency's practice of considering such applicants on a case-by-case basis.
In one of a series of recent rulings restricting government discrimination against homosexuals, the U.S. 9th Circuit Court of Appeals reversed a lower-court ruling that had prevented an openly gay woman from suing the CIA when she was denied a top-level security clearance.
Although the court declined to rule on the constitutionality of any blanket policy of withholding clearances from homosexuals, the judges did say there is evidence that the CIA has such a policy and held that the woman should be allowed to take her challenge to trial.
"We hold a fair-minded trier of fact could reasonably infer from the evidence that the CIA considers all persons who engage in homosexual activity to be unacceptable security risks," Judge William A. Norris wrote for a three-member panel of the court.
Norris, a liberal member of the court who wrote a major opinion last year banning homosexual discrimination in the Army, was joined by one of the court's most conservative judges, John T. Noonan Jr., and visiting District Court Judge Russell E. Smith.
Julie Dubbs, a senior technical illustrator for a San Francisco Bay Area defense contractor, SRI International, had held a top secret security clearance from the Department of Defense since 1981.
But the CIA denied her an upgraded security clearance to handle intelligence information and sophisticated technical systems for collecting intelligence, which Dubbs said she needed to continue her job and to apply for promotions at SRI.
Dubbs filed suit in federal court, alleging that the CIA has an unconstitutional blanket policy of denying security clearances to people who engage in homosexual activity, or at least a policy that considers private, consensual homosexual conduct a negative factor, while not taking heterosexual conduct into consideration, except where promiscuity or extramarital relations reflect an applicant's lack of judgment or discretion.
The CIA, which lost a similar case last spring when the U.S. Supreme Court ruled it did not have the right to summarily fire a homosexual employee because he is considered a security risk, claims it has no blanket policy against homosexual conduct but maintains that such a policy, if it existed, would not be unconstitutional.
Government lawyers argued that foreign operatives could use evidence of homosexual activity to blackmail the holder of a security clearance. Even though Dubbs is openly gay, the CIA said, it is possible that she could have a relationship in the future with someone who was seeking to hide their homosexuality, thus exposing Dubbs to the possibility of blackmail.
In Dubbs' case, the CIA also raised concerns that she had not immediately disclosed her homosexuality, a fact that the agency said "indicates a perception of vulnerability on your part" and "raise(s) serious doubts about your reliability and your susceptibility to compromise by a hostile intelligence service."
The appeals court recognized the CIA's argument that it regards homosexual conduct as only one factor in a "whole-person" approach to evaluating security clearances. But the court said the agency's own testimony "gives rise to a permissible inference that the CIA, in fact, considers all those who engage in homosexual conduct to be unacceptable security risks."
The appeals court also rejected one of the government's major arguments, that the courts should not be intervening in complex security determinations.
"People who don't make these decisions day in and day out don't have access to the big picture factors and should not be second-guessing those who do," one Justice Department attorney argued.
Richard Gayer, Dubbs' lawyer, said he will now seek a ruling from the district court that the CIA does, in fact, have a blanket policy against security clearances for gays and that the policy is, in fact, unconstitutional.
"The important thing to note here is that the CIA is the only known agency that absolutely will not grant a security clearance to a known gay person under any circumstances, unlike the Defense Department or even the National Security Agency," Gayer said.
Amy Brown, a Justice Department spokeswoman, said lawyers had not yet seen the opinion.