Abstract

The United States Supreme Court recently granted certiorari in Doe v. Casey to consider whether the decision by the Director of the Central Intelligence Agency (CIA) to discharge an employee based solely on sexual orientation is judicially reviewable. The discharged employee petitioned to have the court determine whether the employee was entitled to a statement of reasons for the CIA's determination, but certiorari was not granted on that issue. Both questions, however, arise out of a broader and more difficult issue: when may the government legally discharge an employee because he or she is a homosexual?

This Note reviews the judicial decisions regarding employment terminations of homosexual persons in both private and governmental contexts. It then examines rulings of the lower courts in Doe v. Casey, a recent case concerning an employee of a government agency dealing with sensitive national security information. Finally, it evaluates the existing policy framework that the Supreme Court may use in its upcoming decision.

Both the private and governmental sectors may be examined to determine trends in decisions involving homosexual employees. Additionally, the governmental sector can be divided into three categories: civil service employees, teachers, and employees of the military and other agencies dealing with national security.

An analysis of the trends in decisions involving homosexual employees, provided in the following sections, reveals two main principles. First, the government is held to a higher standard of job-relatedness in its employment decisions than are private employers, and second, the first principle is essentially meaningless when applied to employment in the military and national security sectors.

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