By Todd D. Rainer
In August 1963, Representative John Dowdy chaired a committee hearing to amend the District of Columbia’s Charitable Solicitation Act (the Act). The proposed amendment defined two alterations to the Act. First, it would convert the law from a “shall issue” law to a “may issue” law. This change would allow the commissioners to deny licenses to “undesirable” organizations. While ill conceived, this modification was perfectly legitimate legislation involving a regulatory issue. However, the amendment additionally specifically rescinded the Mattachine Society’s (MSW) license to solicit for charitable donations thus acting, amongst other things as a bill of pains and punishments.
A bill of pains and punishments is a subcategory to a bill of attainder and is an extrajudicial punishment created through legislation. The Constitution of the United States bars both under the Bills of Attainders Clause found in Article I, Section 9, Clause 3. The Clause simply states, “no bill of attainder or ex post facto law shall be passed.”[1] Following the Civil War, the Supreme Court of the United States (SCOTUS) invalidated laws under the Attainder Clause on five occasions. The four cases that the SCOTUS heard prior to 1963, which have bearing on the discussion at hand are[1] Cummings v. Missouri and Ex parte Garland in 1866, Pierce v. Carskadon in 1872, and United States v. Lovett in 1946.[2] Later, in 1965, the court decided United States v. Brown, that case however occurs after events discussed herein.[3] In all the cases decided, the government actor considered the plaintiff some sort of political subversive, passing laws to restrict various activities. In the early cases, former Confederates or Confederate sympathizers were the subjects, in the later cases, usually Communists. The various laws singled out people for unfavorable treatment without the benefit of the judicial process. In every case, the offending legislation named not just groups and organizations, but individuals as restricted by legislation. This is a clear violation of the Constitution. The restriction on bills of attainder is a protection to the separation of powers between the judiciary and the legislative branches of both the federal and state governments of the United States. The restriction prevents legislatures from behaving as judiciary, thus ensuring the right to judicial proceedings prior to a taking of some right or property.[4]
As the precedential case, United States v. Lovett played a significant role in the events surrounding the hearing. One of the courts findings states, “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution.”[5] Additionally, all four SCOTUS decisions affirmed that the Bill of Attainder Clause was to be liberally construed, thus putting the legislature on notice that should a law even have the flavor of a bill of attainder, it was almost certainly unconstitutional.
In support of determining if legislation violates the Bill of Attainders Clause, the courts have established a dual level test to ascertain a statutes status. The first level is a two-pronged test; first – are specific individuals, groups, or entities affected by the statute and second – does the legislation inflict a punishment on those individuals? Should a piece of legislation meet both those tests, a second level test is then applied. Dowdy’s amendment specifically calls out the MSW. A license to solicit is, legally speaking, property. Therefore, a revocation of that property is a taking. The Amendment unquestionably meets the first test as a bill of attainder, both naming a specific group and taking property from them without the benefit of a judicial decision.
As part of the second level test, the courts have defined three additional checks of legislation, the finding any one of which results in an affirmative finding of a statute being a bill of attainder and therefore unconstitutional. These tests are historical, functional and motivational. The historical test finds burdens that are traditionally found to be punitive. For instance, a law that fines, banishes, or sentences someone to death would be traditionally found to be punitive. Additionally, a law that confiscated property or prevented named groups or individuals from participating in specific vocations would also be found to be punitive under the historical test.[6] The amendment, being a taking from a specific group meets this test. The functional test applies to legislation where the type and severity of the burdens are functionally equivalent to a punishment because they do not further non-punitive legislative purposes. This test applies directly to Lovett, wherein the court found that the legislation acted outside the bounds of a merely regulatory law in part due to the legislators’ discussion during committees and debates related to “charges” and finding the subjects named “guilty,” thus violating the separation of powers and the Bills of Attainder Clause.[7] Whether the hearing regarding the amendment meets the functional test is questionable. While evidence does exist to support an argument, the legal question is complex. Does rescinding the license of the MSW provide a regulatory function beyond any sort of punishment, perceived or real? While the courts are required to strictly interpret any such evidence of a functional nature, the question is impossible to answer given the evidence at hand. Finally, the motivational test, wherein the record shows a congressional intent to punish.[8] In an apparent attempt to evade expanding the historical test, which the courts have narrowly defined and been loath to expand, the motivational test allows the courts to take into account the apparent motivations behind the legislation. However, what constitutes sufficient evidence of motivation has varied between court to court. This test, the most challenging, and subjective of the three, has yet to have a bright line rule established by the SCOTUS.[9] Even so, Dowdy’s statements, behavior, and apparent temper during the committee hearing, as well as statements made outside the hearing indicate clearly an intent to punish the MSW. As such, the statute fails the motivational test as well as the history test in numerous ways discussed below.
As a conservative Democrat, Dowdy was, amongst other things, anti-communist, anti-civil rights, and anti-gay rights. Additionally, he conflated these three movements into a single, all-encompassing cabal of a world communist conspiracy. In a speech before Congress on March 21, 1962, Dowdy extolled his own anti-communist record of “consistently” voting against recognition of Red China, supporting the House Committee on Un-American Activities, and holding a variety of anti-communist and anti-liberal views. Additionally, he also railed against liberal organizations such as the Americans for Democratic Action (ADA) and the AFL-CIO’s Committee on Political Education (COPE), entreating “the people” to “consider just whose interests the ADA are really serving.”[10] Dowdy’s letter of November 14, 1957, to James C. Nesom of Falls Church, Virginia accused the executive and judicial branches of having turned the country over the Communists and the “communist-front NAACP.” This shows a clear bias not only against Communism, but more disturbingly, the executive and judicial branches of government.[11] In a letter to Rev. M.O. Frederick of Lufkin, Texas on April 17, 1959, Dowdy once again comingled the NAACP with the communist conspiracy, as well as accusing “80% of the members of the House and Senate,” the President and the Supreme Court of being a part of the cabal and “flying in the face of God’s command.”[12] He affirmed his support for the 1952 Immigration and Nationality Act, a.k.a. the McCarran-Walter Act, an act, in part, intended to prevent entry of people with “psychopathic personalities” into the United States.[13] “Psychopathic personalities” was a condition that, while not specifically called out in the text of the statute, included homosexuality as was enumerated in the first edition of the Diagnostic and Statistical Manual, Mental Disorders.[14] Finally, a 1967 campaign advertisement describes Dowdy’s record of supporting legislation to “control” homosexuals.[15] That same year, he further asserted his success in revoking the license of “a society of homosexuals” to solicit donations in the District of Columbia.[16] These statements, both before and after the 1963 hearing, are but a small sampling indicating Dowdy’s prejudices and motivations against those who do not follow his line of “right thinking.” Taken as a whole, these statements and positions are also an indictment of his intentions; conduct that ultimately is evidence of his motivation to legislatively punish the MSW and bypass the judicial process which he felt was corrupt.
Dowdy’s adversary in this contra-constitutional campaign was Frank Kameny. In 1957, Frank E. Kameny, Ph.D. and WWII veteran was an astronomer for the Army Map Services when he was called before Civil Service investigators and accused of being a homosexual. When he refused to cooperate with the investigators, the Army dismissed Kameny from his job. In 1960, nine years before the Stonewall Riots, Frank Kameny, reviving the race-sex minority analogy, entered into a civil rights case, the first of its kind in the United States. Kameny said, “My dismissal amounted to declaration of war against me by the government.” Kameny sued over what he felt was a capricious and unjustified blacklisting by the federal government of homosexuals and merely suspected homosexuals.
Kameny petitioned the courts for a mandatory injunction for reinstatement to his job. The court denied the petition entering a summary judgment for the Army Map Service. Effectively, a summary judgment indicates that in the opinion of the court there was no legal or factual issue to explore. To let that ruling stand would have been devastating to Kameny’s goal of returning to his job. Kameny appealed to the U.S. Court of Appeals for the District of Columbia. The appellate court, ruling strictly on procedural grounds, never addressed Kameny’s legal arguments. The court affirmed the lower court’s ruling, upholding the summary judgment.[17] After the appellate court denied a rehearing, Kameny, expanding his argument against the government policy of dismissing homosexuals out of hand, filed a writ of certiorari, a request for hearing, with the United States Supreme Court in October of 1960.[18]
Kameny, representing himself with some legal assistance, presented numerous arguments in his writ, some procedural, some legal. The procedural arguments are not relevant to the discussion at hand, and are therefore set aside. His legal arguments included, (1) that real legal questions existed and were ignored by the appellate court, (2) the legal questions presented were pertinent to a large minority, (3) that a government discharge was unlike the discharge of any other employer and created special problems for those affected by it, (4) that the discretion of the Government to be free from judicial review in matters related to employment created an environment which led to “abuses of the worst sort,” (5) that the regulation under which he was dismissed, one which banned “immoral conduct”, was unconstitutionally vague, and finally (6) that the regulation is improperly discriminatory – taking an interesting tack by arguing that while in many instances homosexual activity may be contra-legal, the mere state of being a homosexual is not. Kameny also applied a “test of reason” argument to his case, while providing no examples of such a test applying to government hiring practices.[19] Kameny’s writ, while presenting the arguments listed, asked only that the SCOTUS overturn the lower court’s summary judgment and allow for a full hearing before the court of appeals. The SCOTUS denied certiorari without comment.
Prior to Kameny’s case, homophile groups only requested, and occasionally insisted upon acceptance or tolerance. Kameny, by pursuing his case to the highest court in the land was the first to demand full rights for homosexuals as citizens of the United States. If Kameny made errors, it was first in not retaining new, experienced legal counsel after his attorney abandoned him. There is no evidence available concerning whether he even attempted to do so. It is possible such evidence exists within his records at the Library of Congress. Barring the very common mistake of having a “fool for a client,” his second and more important error may lay in his pleading. He requested merely a new hearing before the appellate court, not that the SCOTUS address the legal questions he presented. Had his arguments been in terms of his dismissal being the result of the morality regulation being a bill of attainder, it is possible that the court’s action may have been different. After all, based on precedential case law a declaration of guilt or innocence, without judicial review is a clear violation of the restriction. However, without an in depth review of both case law that makes similar arguments, and a review of the writs presented to the SCOTUS in this same period, this is a purely speculative conclusion – a dangerous one at that.
Nonetheless, this defeat motivated Frank Kameny to reestablish the Mattachine Society of Washington in 1961. [20] Kameny, the first president and spokesperson for the MSW was largely responsible for the re-politicization of the organization, overseeing the first picketing of the White House by a gay rights organization on May 4, 1963.[21] Kameny, ever aware of his challenges both social and legal, insisted that the activities of the MSW be legal and above the board.[22] Kameny, intent on taking action, applied for and after much resistance from C. T. Nottingham the superintendent of licenses and permits, was eventually granted a license to solicit charitable donations for the MSW in the District of Columbia.[23] Recognizing the importance of such a milestone, Kameny wasted no time in advertising what he saw was one of the first forms of public recognition for a homophile organization. On Sept 16, 1962, the Washington Star published an article with the headline: Group Aiding Deviates Issued Charity License.[24]
According to David K. Johnson in, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government, the report “incensed” John Dowdy, placing the U.S. Congress and the Mattachine Society on a course towards conflict.[25] In the 1962 session, Dowdy introduced a bill to rectify what he considered an intolerable situation, however, it was introduced too late to act upon in the session. Dowdy entered into remarks in the Congressional Record of the 88th Congress, on July 8, 1963, that he opposed the Mattachine Society’s licensing, an opposition based on religious and moral grounds arguing that “The acts of these people are banned under the laws of God, the laws of nature, and are in violation of the laws of man.” Dowdy further accused the MSW of promoting sexual deviation and criticized the law for allowing them a platform. [26]
The law Dowdy was criticizing was the 1957 District of Columbia Charitable Solicitation Act.[27] Its purpose was to “to provide full and fair disclosure of the character of charitable, benevolent, patriotic, or other solicitations in the District of Columbia; and for other purposes.” The law merely required registration of an organization with little or no evidence of its charitable nature. The “shall issue” nature of the law proved to be problematical in that the commissioners had no right to refuse to issue a permit, a situation that offended Rep. Dowdy. On August 8, 1963, the House Subcommittee No.4 of the Committee on the District of Columbia met with Congressman Dowdy as its chair with the intent of debating the issues surrounding Dowdy’s proposed amendment to the Act. The committee consisted of Representatives John Dowdy (D-TX), George Huddleston, Jr. (D-AL), Basil Lee Whitener (D-NC), Bernice F. Sisk (D- CA), Jim Broyhill (R-NC), Frank Horton (R-NY) and Richard L. Roudebush (R-IN).[28] Witnesses included Robert F. Kneipp and C.T. Cunningham for the Commissioners, Frank Kameny and Ellen Keene for the Mattachine Society and Monroe Freedman representing the Freedom of Communications Committee of the National Capital Area Civil Liberties Union (the local chapter of the American Civil Liberties Union, the ACLU). After dismissing the other outstanding issues before the committee due to a scheduling conflict, Rep. Dowdy focused the session on the amendment to the Act. As previously discussed, the object of the amendment, entered as H.R. 5990 was two-fold. First, the amendment required that the commissioners to “affirmatively” confirm that an applicant’s activity benefited or assisted in promoting “the health, welfare and the morals of the District of Columbia.” Secondly, the amendment revoked the Mattachine Society’s certificate of registration.[29]
The first to testify was Robert F. Kneipp of the Corporations Counsel’s Office of the District of Columbia, representing the District Commissioners of the Department of Licenses and Inspections with limited remarks from Commissioner, C. T. Nottingham. Following Mr. Kneipp was Frank Kameny, appearing as President of the Mattachine Society of Washington, with a cursory testimony by Mrs. Ellen Keene, Vice President of the MSW. Finally, Mr. Monroe H. Freedman testified for the ACLU.
Mr. Kneipp expressed the District’s objections to H.R. 5990 in a letter to the chairman of the House Committee on the District of Columbia submitted prior to the hearing. The District’s objections were essentially two fold. The District objected to Section 1 due to the burden it placed on the District to hold a hearing for every applicant to determine if they met the criteria of promoting “the health, welfare and the morals of the District of Columbia.” In spite of Dowdy arguing that he did not read the bill this way, Mr. Kneipp insisted that it did. He maintained that the amendment did create a “heavy and difficult burden” on the commissioners resulting in the necessity to hold hundreds of hearings prior to issuing permits. Moreover, continuing this line of reasoning, Kneipp argued that, because the wording of the amendment was so poorly considered, the vast majority of the 163 organizations that held registrations would not qualify under the amendment. Frank Kameny raised similar objections in his testimony, arguing that the administrative and financial burden for both the government and the organizations would be “overwhelming” and that few organizations licensed at the time could even meet the standards of the amendment.[30] This concurrence of testimony led the committee to question whether Kneipp and Kameny had consulted with one another; they both asserted that they had not in any meaningful sense. However, this line of questioning set the tone for the committee seeking evidence of some sort of collusion between the witnesses that would continue throughout the hearing. This concern by the commission is mentioned primarily to dismiss it. Section 1 of the Amendment, while being fatally flawed, is a mere regulatory issue and does not bear on the unconstitutional nature of section 2.
The second, more important objection raised the specter of a bill of attainder, or more accurately, a bill of pains and punishment (used interchangeably herein as is custom).[31] Mr. Kneipp, a government employee, being somewhat reticent and trying to ensure that the committee did not take their objections to the amendment as an endorsement of the MSW, argued that the specific discriminatory nature of the amendment made it a bill of pains and punishments, and thus could not pass constitutional muster.[32] Citing United States v. Lovett, Mr. Kneipp strained to maintain an argument based solely on the precedential law, something the committee seemed intent on avoiding. Mr. Kneipp argued that by excluding, retroactively the MSW with the new amendment, Congress would be violating the constitutional restriction on bills of attainder.
Additionally, Kneipp argued, the commissioners, while not wishing to condone or support homosexual activities, were bound by the law as written to issue the permit as the law was merely a notification law as opposed to a may-issue law.[33] Even so, Commissioner Nottingham admitted before the committee that he had indeed refused a permit to a member of the communist party. The committee does not explore Nottingham’s reasoning for believing that he was empowered to reject the application of a communist organization, but not an application from homophile organization.[34] Leading one to believe that the committee was considerably less concerned with upholding the law and more concerned with punishing the MSW. Nevertheless, Mr. Kneipp’s testimony on this topic is most thorough, if somewhat restrained. The attorney established clearly that the commission opposed the implementation of section 1 of the amendment due to its burdensome nature, and section 2 of the amendment on Constitutional grounds. Mr. Kameny’s testimony on this subject, while expressed in layman’s terms, mirrored that of the commission’s. Enough so that the committee once again inquired if there had been any sort of collusion between the District and the MSW. There had not been.[35]
Frank Kameny’s testimony followed over two days. Kameny, the first openly homosexual citizen to testify on Capitol Hill, eventually testified for over four hours before the committee. Largely his testimony revolved around the organization of the MSW and its relationship with other homophile organizations. This further attempt by the committee to establish some sort of conspiracy – likely based on the “cabal of homosexuals” theory – ultimately failed in that Kameny made clear or at least attempted to make clear that the MSW was an independent organization beholden to no other, even while being in communication with many. These attempts to establish some sort of conspiracy or criminal activity additionally could be considered within a motivational test framework if a court were to determine that the question was outside the bounds of legislative necessity. A likely outcome.
The committee’s attempt to garner the names of the members of the society, and later Mr. Freedman’s personal information spanned the course of the interviews of Kameny, Keene and Freedman. These attempts almost certainly fall within the motivational framework of the court’s test of the statute in question. The committee’s attempt to hinge the legitimacy of the MSW’s claims on the public knowledge of their membership rolls was a not-so-veiled threat given the political atmosphere at the time, and the danger to homosexuals of being “outed.” A publicly known homosexual faced not only professional and financial harm but potential physical harm as well. Harm that could come not just from a thug on the street, but even from official sources. District homosexuals had taken the Washington D.C. Morality Squad to court over numerous cases of police brutality.[36] Kameny and Keene stuck to the MSW’s party line of stating that they did not believe that the questions were relevant to the topic or appropriate. When the committee attempted this line of questioning on Mr. Freedman, the ACLU attorney made very clear the inappropriateness of the line of questioning, going so far as to accuse Dowdy of subtly threatening him by inquiring as to his membership status in the society and his place of employment.[37] The continued attempts to garner further private information become important in the tests to determine if a piece of legislation is a bill of attainder. It is quite possible to argue that the only reasonable purpose for such information was to seek out legislative or regulatory punishment for those who offend congressional sensibilities.
According to Mr. Charles Francis, current president of the Mattachine Society of Washington D.C., Mr. Kameny saw Dowdy’s attacks as a boon to the growth of the society and the advancement of gay rights in general.[38] Frank Kameny then went on to use this newfound notoriety to further the cause of the homosexual American citizen. Ultimately, Kameny’s testimony primarily addressed the structure, purpose, activities and membership of the MSW and, except for passing comments did not directly address any issues pertaining to the theory that the second section of the amendment may be a bill of attainder. This only makes sense as Mr. Kameny was not an attorney and did not represent the MSW as a legal expert, but as an expert on the MSW itself who was hoping for some goodwill from the committee.
However, Monroe Freedman was an attorney, neither seeking goodwill of the committee nor beholden to his client as Mr. Kneipp was in his restricted responses. Mr. Freedman was a highly educated and experienced attorney and a law professor representing an organization whose interest lay solely in protecting the Constitution of the United States from what they saw as “gross violations of civil liberties”.[39] Mr. Freedman made clear in the early exchanges that he would not be, and in fact could neither be intimidated nor dragooned by the committee. He went so far as to advise the board that he had what were in his opinion, more important things to do than teach Congress the basics of Constitutional Law. Mr. Freedman, after some semi-heated exchanges with committee members concerning privacy, established his identity, his credentials and his interest in the amendment. He then went on to eloquently lecture the Committee arguing that the amendment would “…impose an unconstitutionally vague qualification on freedom of speech” and therefore was a probable violation of the First Amendment of the Bill of Rights. [40] Additionally, intercepting objections by the committee, Mr. Freedman plainly asserted that in this instance he was not speaking of any sort of sexual expression, nor of the amendment’s effect on any particular group (including the MSW), but of the freedom of communication and association overall.[41] In doing so, he came at the crux of what the NCACLU objected to beyond the bill of attainder/bill of pains and punishments issue. In a confrontational exchange with Dowdy, Freedman explains – even chastises Dowdy on the basics of freedom of speech and the legal difference between regulating an act that may or may not be protected by the Constitution and regulating speech/association that very clearly is protected. Freedman extended his allocution into the foundations of the creation of the First Amendment. As an example, Freedman compared an organization lobbying for stricter laws on homosexuals – which Freedman contended would have surely been granted – and the MSW – which espoused a philosophy that the committee found repugnant, which would, in Freedman’s hypothetical scenario be denied licensing. In this comparison, Freedman citing an unnamed article in the August 1963 issue of the Journal of the Bar Association of the District of Columbia, calls such standards as “morals” amorphous concepts and thus, unconstitutionally vague. Freedman entreated the committee to distinguish between what the MSW stands for and its right to free speech. As to the amendment being a bill of attainder, of those testifying, Mr. Freedman expressed the simplest, clearest opinion of the second section of the amendment in stating that it was “as clear a case of a bill of attainder and denial of equal protection of the laws and denial of due process of law as one could conceive of.”[42]
Press coverage of the event was largely supportive of the MSW and dismissive, even critical of Dowdy and his position. In fact, when finally passed in 1964, Dowdy complained that the Washington Post had been attacking him for two years over his sponsorship of the amendment.[43] The archives of the Washington Post include numerous articles published in relation to Dowdy’s amendment. John Groshko covered the hearing; his first article on August 8, 1963 was entitled Unpopular Causes. This article was clearly disapproving of the Amendment stating, “we think that the organization (MSW) has a clear right to make a plea for public support”. Additionally, the article recognizes the second section of the amendment as a bill of attainder, arguing that the Constitution flatly forbids Congress from passing it.[44] Groshko’s article the next day went on to criticize the committee for focusing on “morality” in lieu of the law.[45] Coverage the following day went on to criticize the pertinacity of the committee indicating that little was accomplished due to their far-ranging “digressions” from discussion of the law itself into the morality of homosexuality and even into the details of what constitutes a homosexual act, and what is meant by homosexual in the first place. The author even makes note that Mr. Freedman had to correct the committee on no less than seven occasions regarding the organization he represented.[46] Groshko, described as a stalwart veteran of the Washington Post showed little appreciation in his writings for the belaboring of the discussion of homosexuality in what was supposed to be a legislative matter, repeatedly pointing out when Dowdy or some other member of the committee strayed from what was supposed to be the point.[47]
Throughout the hearing, Rep. Dowdy’s tone could best be described as confrontational, at times argumentative, and occasionally downright insulting. Dowdy first accused the commissioners of allowing the MSW to promote “perversions and immorality,” then accused Kameny and the MSW of perversion, and then argued with Freedman that the ACLU was condoning the same. In fact, Dowdy returns to the accusation of promoting perversion frequently, repeatedly returning to Biblical authority to justify his position. The Texas representative was generally insulting of the MSW throughout the hearing making numerous snide, side-comments such as “queer” and “fairy.” Additionally, he compared MSW publications to “pornography.” Dowdy raised the topics of prostitution, incest and bestiality as well, further establishing the reasoning behind his motivations.[48] Unfortunately, the pornography charge may have a basis in fact even if the pornography in question did not originate from the MSW. Bruce Schuyler, the MSW secretary sent a scathing letter to ONE magazine in Los Angeles regarding their publication of a particularly offensive cartoon of a nude sailor defecating in public. [49] Schuyler’s letter took the magazine and its editors to task for giving Rep. Dowdy yet another piece of evidence to use against the MSW. ONE magazine was not associated with the MSW in any way; even so, this seems to have had little bearing on Dowdy’s position. This merely further supports the impression that Dowdy was intent on punishing the MSW, no matter what the facts. Numerous other malicious remarks including discussion of the nonsensical urban legend of homosexuals gaining weight on a diet of semen, and a comparison between dinner parties and homosexual orgies, clearly shows the prejudicial nature of the hearing.[50] It also positively fulfills two of the secondary bill of attainder tests, historical and motivational. Dowdy seems unconcerned about this, even to the point of admitting that the purpose of the amendment is to specifically revoke the MSW’s permit without judicial action, an act that as an experienced attorney, Dowdy had to have known was unconstitutional on its face.[51]
Additionally, Dowdy made quite clear his opinion of the connection of the homophile movement with communism, another subset of people who had been subject to bills of attainder. Dowdy set forth the very common, but largely unsupported argument that homosexuals were security risks, even citing the Martin and Mitchell defection as evidence.[52] Dowdy also discussed the existence of “homosexual schools” in communist countries, and homosexual orgies in communist embassies, thereby linking homosexuality with communism yet again.[53] Essentially, Rep. Dowdy used this forum as sounding board for his own personal, religious, and moral arguments against homosexuals, and forsook his duties under his oath of office to “support and defend the Constitution of the United States.” His behavior was reprehensible and provided further evidence that homosexuals were subjected to irrational, even unconstitutional hatred and prejudice at the highest levels of government.
In The Lavender Scare, a seminal work on the topic of repression of the early gay rights movement, Johnson makes a number of leaps of logic that that are questionable. The first is that Kameny somehow gave away the “secret” that the officers of the MSW were using pseudonyms – an act which may or may not have been in violation of district regulations.[54] In a strict reading of the transcripts, Kameny does no such thing, a refusal to answer a question is not, and never has been an admission to the fact. This is basic legal canon in the United States enshrined within the Bill of Rights itself and a plethora legal opinion. Historically, the legal protection against self-incrimination stems from the English Puritans refusing to answer questions of their torturers as explained by Chief Justice Warren in Miranda v. Arizona.[55] Even if Dowdy declared that the committee should just assume that a refusal to answer was an admission, such a declaration has no meaning in law or reality except in the declarer’s mind. However, the attempt to garner membership and officership information of a named organization, under the guise of criminal accusations, goes toward a positive finding in all three, historical, functional and motivational tests for an affirmative finding that the statute is a bill of attainder.
Johnson’s second – and more important error– is the idea that somehow Dowdy won because the MSW lost its license. The MSW did not lose its license, which may actually have been unfortunate. Congress overwhelmingly passed the Amendment in August 1964, in spite of its obvious failings.[56] However, under the advice of an attorney, the MSW surrendered its license as unnecessary and potentially legally burdensome.[57] It is a fine distinction, but fine distinctions are what make good law. Kameny himself did not consider this a loss, as the attention garnered from the hearing and Dowdy’s later remarks in 1964 was greater than the small benefit of a semi-official recognition of the MSW’s legitimacy. It is unfortunate because had Dowdy successfully rescinded the MSW’s license through legislation, the MSW would have gained standing to bring a bill of attainder violation case against the US Congress. As this did not happen, we can only speculate as to the results. However, after Dowdy made it abundantly clear that his purpose was to deny the Mattachine Society a means of raising funds, it is difficult to conceive the SCOTUS going against long standing stare decisis to find for the government in such a case.[58]
In The Lavender Scare, Johnson concludes that Dowdy made a strategic error in judgment in challenging the legitimacy of the MSW. Trapped in Cold War thinking, his fear of communists, of integration, and of homosexuals ensnared him in an unwinnable state of affairs, one that made him and his cohorts look bad. By attacking what was ultimately a relatively new, tiny and largely unproductive group – a condition hinted at by Kameny himself in the hearing – Dowdy and the committee did more to augment the MSW’s prestige and dignity within Washington D.C. In the space of two days, John Dowdy did more to help the MSW than anything that Frank Kameny may have done over a much longer period. The attention to the hearing generated enough interest in the MSW and its purpose that ECHO, the East Coast Homophile Organizations voted Frank Kameny the man most responsible for furthering the goals of homophiles in the United States in 1963, largely due to the actions of John Dowdy.[59]
However, not only did Dowdy make a critical strategic error, but also he acted in a contra-constitutional manner. The Commission, the MSW, the ACLU, and the Washington Post all concurred that the second section of the amendment was a bill of attainder. Freedman of the ACLU pointed out that it likely was a violation of the First Amendment as well. Even ignoring the possible First Amendment violation, the Constitution’s Bills of Attainder Clause and the extant case law was long-standing legal doctrine of which any experienced and competent attorney, no matter what his specialty would be aware. It cannot be stressed enough here just how much the prohibition was Constitutional canon, or how much an experienced attorney would have known this. This is particularly true given the educational requirements to sit for the Texas Bar exam in 1940, the year Dowdy entered into the practice of law. Section III, Part VI of the Rules of the Supreme Court of Texas requires that a law student study not just the Constitution of the United States, but also the Constitution of Texas. The student must as well study Constitutional theory and case law from Black’s Constitutional Law or Rottschaefer’s Constitutional Law, and Black’s Cases on Constitutional Law, all of which address the issue of bills of attainder.[60]
Numerous of the founding fathers spoke out against these measures, which had been sorely abused by the crown to punish colonists.[61] James Madison argued that such laws are contraindicative of a sound legislative system. In the Federalist Papers he wrote, “bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.”[62] Alexander Hamilton expanded the discussion in the Federalist Paper no. 78, “a limited constitution . . . [is] one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”[63] Thomas Jefferson, Justice Samuel Chase, George Mason, and a host of other founders spoke out against bills off attainder as incompatible with a democratic government and a threat to constitutional law.
Despite the backlash, Dowdy continued his moralistic crusade, adding to the accumulated anxiety of an already anxious period. His writings and speeches persistently spoke of “truth and morality”, and railed against progressivism, calling collectivists “kindhearted but short sighted men and women with befuddled thinking, arousing covetousness and destroying faith and self-confidence.”[64] In spite of all his assertions to morality and truth, John Dowdy was tried and convicted of multiple counts of accepting a bribe, conspiracy, and perjury and eventually served time in prison, bringing into question his own morality, ethics and ultimately coloring his motivations.[65] The idea that Dowdy, as a prosecutor and attorney in Texas, one who is called a constitutional attorney in at least one article, would not be aware of the court’s position on the matter of something as legally vital and fundamental as bills of attainder is beyond ludicrous.[66]
Based on the evidence presented, while highly circumstantial, one can only assume that Dowdy simply intended to ignore the Constitution and the long-standing rulings of the Supreme Court in an attempt to expand the powers of the legislature into realms reserved for the judiciary. In doing so, John Dowdy followed closely to the traditions of his upbringing, his religion, and the conservatism prevalent amongst southern democrats of his time. Nevertheless, his actions stood in direct contravention to the laws, history, and Constitution of the United States.
©2015 Todd D. Rainer
ENDNOTES
[1] The Constitution of the United States, Article I, Section 9, paragraph 3, Cummings v. Missouri, 71 U.S. 277 (1867), 278-279. Ex Post Facto Laws deal with criminality and as such are not relevant to the discussion at hand.
[2] Cummings v. Missouri, 71 U.S. 277 (1867), Ex Parte Garland, 71 U.S. 333 (1867), Pierce v. Carskadon, 83 US 234 (1872), United States v. Lovett, 328 U.S. 303 (1946).
[3] United States v. Brown, 381 U.S. 437 (1965).
[4] Aaron H. Caplan, “Nonattainder as a Liberty Interest.” Wisconsin Law Review 2010, no. 5: 1203-1268. Legal Source, EBSCOhost (Accessed November 28, 2015).
[5] United States v. Lovett, 328 U.S. 303 (1946) citing Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. P. 328 U. S. 315.”
[6] Thomas, Kenneth R., “Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly.” August 26, 2014. Congressional Research Service. 7-5700. www.crs.gov. R40826. 5.
[7] Ibid. 6-7.
[8] Ibid. Summary.
[9] Ibid. 9, footnote 63, footnote 64.
[10] Ibid. Box 549, File 57* (note: file number appears to be cut off from our source – probably file #572 and/or 573).
[11] Ibid. Box 134, File 5.
[12] Ibid. Box 206, File 296.
[13] United States Statutes at Large, 1952, Vol. 66, 82nd Cong., p. 163-282. § 212 (a) (4).
[14] Diagnostic and Statistical Manual, Mental Disorders. The American Psychiatric Association Mental Hospital Service. (Washington D.C. 1952). 13, 39. Note; a full copy of the DSM1 can be found at www.turkpsikiyatri.org/arsiv/dsm-1952.pdf.
Possibly because of legislative confusion caused by the poorly worded 1952 act, the passage of the 1965 amendment to the INA added “sexual deviation” as a specific medical ground for denying prospective immigrants entry into the United States. No statements by Dowdy have been found concerning this amendment, however, according to the website www.govtrack.us. Rep. Dowdy voted against the amendment, as did 2/3rd of the rest of the Texas representatives. Southern opposition likely resulted from the abandonment of the national origins quota system, replacing it with a skills and family oriented preference schema. This interesting outcome deserves research beyond the scope of this paper. Davis, Tracy J. “Opening the Doors of Immigration: Sexual Orientation and Asylum in the United States.” Human Rights Brief. (No publishing date given). American University Washington College of Law. Accessed 11/25/201. https://www.wcl.american.edu/hrbrief/v6i3/immigration.htm To Agree To The Conference Report On H.R. 2580, The Immigration and Nationality Act. https://www.govtrack.us/congress/votes/89-1965/h177 (Accessed 12/02/2015).
[15] John Dowdy Collection. “As published by the Friends of Congressman John Dowdy.” Box and File location not identified.
[16] Ibid. Box 569, File 208.
[17] Franklin Edward Kameny, Appellant, v. Wilber M. Brucker, Secretary of the Army, et al., Appellees, 282 F.2d 823 (D.C. Cir. 1960) – U.S. Court of Appeals for the District of Columbia Circuit – 282 F.2d 823 (D.C. Cir. 1960) – Argued May 18, 1960, Decided June 23, 1960, Petition for Rehearing Denied August 31, 1960.
[18] Kameny v. Brucker, Petition for Writ of Certiorari, No. 676, 365 U.S. 843. U.S. Supreme Court, October 1960.
[19] This is possibly an oversight on his part; we have no way of knowing without further research in his records. However, it is also possibly an attempt to extend a legal concept. The “Rule of Reason” is a valid legal test of a doctrine or law. It is, however used primarily in the United States in evaluating trade and antitrust laws. E.g. Addyston Pipe and Steel Co. v. United States, 175 U.S. 211 (1899).
[20] The Mattachine Society of Washington, DC, Our Mission. http://mattachinesocietywashingtondc.org/mission/ (Accessed 10/25/2015).
[21] Michael G. Long, Ed., Gay is Good; The Life and Letters of Gay rights Pioneer Franklin Kameny. (Syracuse, 2014), Kindle Edition. Kindle Location 636. NOTE: It is unfortunate that as of this writing, the Library of Congress has not digitized the collection it received from the Mattachine Society of Frank Kameny’s papers. The cost of acquiring the collection was prohibitive and going to the LoC even more so. Thus, this book is the closest thing we have to a primary source for Frank Kameny’s letters.
[22] Ibid. Location 293.
[23] David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago, 2004), Kindle Edition. Location 2632.
[24] Ibid., Location 2637.
[25] Ibid., Location 2638.
[26] Congressional Record, Vol.109 part 9, A4211-A4212.
[27] Public Law 85-87, 71 Stat. 278-282. The full text of which can be found through the Government Printing Office. http://www.gpo.gov/fdsys/granule/STATUTE-71/STATUTE-71-Pg278/content-detail.html (Accessed 12/03/2015).
[28] Transcript of the House Subcommittee No.4 of the Committee on the District of Columbia, August 8, 1963. Amending District of Columbia Charitable Solicitation Act hearing. 1. See also Biographical Directory of the U.S. Congress, (1774–2005), Official Annotated Membership Roster by State with Vacancy and Special Election Information for the 88th Congress. http://historycms.house.gov/WorkArea/DownloadAsset.aspx?id=40934 (Accessed 10/23/2015).
[29] H.R. 5990 §1 (d) and §2.
[30] Transcript of the House Subcommittee No.4. 63-4.
[31] According to the Legal Information Institute at Cornell University, a bill of attainder refers primarily to punishments of a capital nature in which a person or persons are supposed guilty of high crimes such as treason or high felonies. A bill of pains and punishment deals with milder degrees of punishment than death or banishment. It has become commonplace to use these terms interchangeably. CRS Annotated Constitution, The Legal Information Institute, Cornell University Law School. https://www.law.cornell.edu/anncon/html/art1frag89_user.html. (Accessed October 24, 2015).
[32] Transcript of the House Subcommittee No.4. 10.
[33] Additionally, Mr. Kneipp argued that nothing in the language of the Amendment necessarily prevented the Mattachine Society from reapplying for and obtaining a new license under the Amendment.
[34] Transcript of the House Subcommittee No.4. 17.
[35] Ibid. 76.
[36] Johnson, The Lavender Scare, Locations 2483-2484.
[37] Transcript of the House Subcommittee No.4. 118-119.
[38] Email correspondence with Mr. Francis, 10/05/2015.
[39] Transcript of the House Subcommittee No.4. 103.
[40] Ibid. 106.
[41] Ibid. 107.
[42] Ibid. 109.
[43] Johnson, The Lavender Scare, Location 2684.
[44] Groshko, John, “Unpopular Causes,” The Washington Post, August 8, 1963, Page not identified.
[45] Groshko, John, “Morality’ Talk Slows Sex Hearing,” The Washington Post, August 9, 1963, Page not identified.
[46] Groshko, John, “House Group Continues Homosexuality Hearing: Not Much Headway”, The Washington Post, August 10, 1963, Page not identified.
[47] Johnson, The Lavender Scare, Location 2684.
[48] Transcript of the House Subcommittee No.4. 73, 88.
[49] Long, Gay is Good, Location 757.
[50] Transcript of the House Subcommittee No.4. 71. Note: Given that human ejaculate holds on average of 25 calories, and it takes 3500 calories to make a pound of fat, the idea of this legend being true is simply beyond the pale. An average of 140 ejaculations would be needed to even reach the threshold of “weight gain” except in the sense that the ejaculate itself, averaging about 3 grams each would weigh just shy of a pound. The legend seems about as reliable as accounts of Bigfoot, with even less evidence presented.
[51] Ibid. 12, 85.
[52] Ibid. 74. Johnson, The Lavender Scare, Location 2041. William Martin and Bernon Mitchel defected to the USSR in 1960; The NSA claimed in the furor afterward that there was potentially a cabal of traitorous homosexuals within the government.
[53] Transcript of the House Subcommittee No.4. 17, 28, 74. An unusual claim given the criminalization of homosexuality in the USSR – By 1934, the USSR codified anti-homosexuality laws in Article 121 of the Russian Federation Criminal Code. By 1936, Nikolai Krylenko, People’s Commissar for Justice decreed that homosexuality was counter-revolutionary. Donald J. West & Richard Green, Sociolegal Control of Homosexuality: A Multi-Nation Comparison. (New York, 1997). 224.
[54] Johnson, The Lavender Scare, Location 2674.
[55] Not only does the Fifth Amendment enumerate this right in the Bill of Rights, but a host of legal decisions have reaffirmed the right under a very large array of conditions. I.E. Cohens v. Virginia, 6 Wheat. 264, 387 (1821). Blau v. United States, 340 U.S. 159, 71 S, Curcio v. United States, 354 U.S. 118 (deals with demands for documents), Escobedo v. Illinois, 378 U. S. 478 (1964), and most importantly, Miranda v. Arizona, 384 U.S. 436 (1966), and other legal decisions.
[56] Johnson, The Lavender Scare, Location 2686.
[57] Johnson, The Lavender Scare, Location 2680. It turns out that the lawyer that advised them to surrender the license was none other than Monroe H. Freedman. Transcript of the House Subcommittee No.4. 122-123.
[58] Transcript of the House Subcommittee No.4. 133.
[59] Johnson, The Lavender Scare, Location 2692.
[60] Rules of the Supreme Court of Texas; Governing the Examination for Admission to the Bar and the Course of Study for the Examination: Exemptions from the Examination: and the licensing to Attorneys from other Jurisdictions. General Laws of 1940. Texas Board of Legal Education, http://www.ble.state.tx.us/ (Accessed 12/02/2015). Henry Campbell Black, M.A., American Constitutional Law. Minn. 1895. 708, 709-715. (Available gratis from Google Books). Henry Rottschaefer, Cases on Constitutional Law. Minn. 1932. 744-766. Black’s Cases on Constitutional Law was un-locatable.
[61] An excellent review of bills of attainder is found in Duane L. Ostler, Bills of Attainder and the Formation of the American Takings Clause at the Founding of the Republic, 32 Campbell L. Rev. 227 (2010). Accessed 12/02/2015.
http://www.law.campbell.edu/lawreview/articles/32-2-227.pdf
[62] Madison, James, “Restrictions on the Authority of the Several States”, Federalist Number 44, January 25, 1788. Library of Congress. The Federalist Papers. http://thomas.loc.gov/home/histdox/fed_44.html (Accessed 11/29/2015).
[63] Hamilton, Alexander, “The Judiciary Department”, Federalist Number 78, June 14, 1788, Library of Congress. The Federalist Papers http://thomas.loc.gov/home/histdox/fed_78.html (Accessed 11/29/2015).
[64] John Dowdy Collection. Box 568, File 183. “The Price of Freedom.” (1965).
[65] Ibid. Dowdy Personal Bio – “The Framing of John Dowdy” (The Liberty Lowdown, Oct, 1972). Box 476, File 66.
[66] John Dowdy Collection. Box 186, File 129.
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