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The government now makes it explicitly illegal to discriminate against federal employees on the basis of sexual orientation. President Barack Obama in 2014 signed an executive order to prohibit federal contractors from discriminating against gay workers, though he lamented that being gay can still be a fireable offense “in too many states and too many workplaces.”
While the government’s position has changed dramatically since the 1950s, debate about the scope of LGBT rights persists in state legislatures and courthouses. Francis said the documents sought in the suit would help reveal early and overt anti-gay bias that lingers in some corners.
“The evidentiary history is critical to see the roots of the animus,” he said.
Documents culled from the National Archives, libraries and other sources have shed light on the order, but Francis’ group believes nearly 900 additional pages that have been withheld could help flesh out the portrait.
“We put the puzzle together but we’re still missing an ocean of material,” he said.
The organization requested documents in January 2013, including all correspondence involving Warren Burger, a senior Justice Department official tasked with helping enforce the order who later become chief justice of the Supreme Court. The suit says more than 800 documents have been turned over, but 891 have been withheld, including any records related to Burger.
The FBI has invoked exemptions to the public records law, including a provision that protects against the disclosure of classified information for national security reasons. Thompson said he found that assertion “particularly troubling” because national security was the rationale of the order in the first place.
“What the lawsuit is for us is the final step in us saying, ‘No, we really are serious’,” Thompson said. “We are serious, and we’re not going to stop until we feel like we have exhausted all possible avenues to obtain these records.”
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