I know that there are many lawyers and current law students that read SM on a daily basis. Therefore I thought it might be of value to point out that the Supreme Court is hearing oral arguments today in a case pertaining to the Solomon Amendment. The Christian Science Monitor reports on the crux of the debate:
At the center of the legal showdown: to what extent military recruiters should have access to law school campuses. The case involves conflicting conceptions of free speech. It also could erode some civil rights laws, which use federal funding to encourage nondiscrimination. On one side of the current case are a group of law professors and law schools seeking equal treatment of gays interested in serving the nation as members of the armed forces. In protest of the Pentagon’s “don’t ask, don’t tell” policy banning openly gay individuals from the military, the law schools restricted military recruiters from fully participating in school-sponsored employment events.Military recruiters could still come to campuses, but the law schools’ employment placement offices would not assist them. The message was that the schools would not abet military discrimination against some of their own students.
<
p>I have thought a lot about this issue. I am a big time supporter of the military but on this issue I would side with the law schools. The law schools could bar any other employer that openly discriminates, so why not the U.S. military? I understand that a ruling in favor of the law schools could set a dangerous precedent. It would embolden people to protest all kinds of federal laws based on the logic that they were following their conscience. Take for example the pharmacists that oppose filling a prescription to the morning-after pill. In many instances they HAVE to fill the prescription by law. I would not want that to change. The threat of federal money being taken away from a University that only has the best interests of its students (i.e. protecting is LGBT community) in mind does not seem fair to me.
Law schools have “a Hobson’s choice: Either the university must forsake millions of dollars of federal funds largely unrelated to the law school, or the law school must abandon its commitment to fight discrimination,” justices were told in a filing by the Association of American Law Schools.The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities, including their law and medical schools and other branches, give the military the same access as other recruiters or forfeit money from federal agencies like the Education, Labor and Transportation departments.
Dozens of groups have filed briefs on both sides of the case, the first gay-rights related appeal since a contentious 2003 Supreme Court ruling that struck down laws criminalizing gay sex.
It seems that our own guest blogger PG faced a choice of her own recently:
Among the employers who signed up for on campus interviewing were the U.S. Army and Air Force Judge Advocate Generals. In the listing for students to bid for their interview slots, they had little information icons that could be clicked to say,The U.S. Military J.A.G. employment practices are not in compliance with Columbia Law School and Columbia University policies on nondiscrimination in that they are unable to provide assurances that they observe the principles of equal opportunity and nondiscrimination in employment on the grounds of sexual orientation. The U.S. Military J.A.G. is being permitted to interview at the Law School because of a U.S. Department of Defense (D.O.D.) threat, pursuant to federal legislation, to withhold all D.O.D. funding, in addition to the funding from a number of other federal agencies, provided to Columbia University if they are not provided the same access as other employers.Despite not being a fan of the Solomon Amendment, I signed up to interview with both, but the Air Force JAG dropped out, so now I’m only going to see the Army folks. However, I might feel obligated to ask them to move from the comfy confines of Warren Hall to an off-campus locale.
Most SCOTUS observers think that the law schools are facing an uphill battle:
The U.S. military got support from most Supreme Court justices in its fight with law schools over whether they can protest the armed forces’ ban on acknowledged gays and lesbians by limiting their recruiting of students.
During a one-hour argument session in Washington, the Bush administration said it has the power to withhold millions of dollars in aid unless universities give military recruiters the same access to students as other prospective employers. An attorney for the law schools argued they have a free-speech right to refuse to help employers who discriminate.
“You’re perfectly free to do that if you don’t take the money” from the government, Chief Justice John Roberts told the law schools’ attorney. [Link]
SCOTUSblog has the play-by-play.
I’m not sure I understand the argument of not pursuing an aggressive integrationist policy during a war. Wasn’t the military racially integrated at the end of WW2 and in the pause right before US entry into the Korean War? I mean, we’re constantly bombing someone – when’s a good time to integrate if not when you’re already low on recruits, etc?
Maybe I’m just excessively naive because I’m a total outsider to the military, but I’m having trouble seeing through this part of your argument.
Punjabi JAG, It’s really interesting to hear your perspective. I think you’re right that change from within, through attrition, is plausible. But there’s no reason that can’t go hand in hand with outside pressure, e.g. from law schools. These law schools are not preventing the military from recruiting “progressives,” or from recruiting law students. (If anything disuades progressives, it’s the military’s own policy.) The law school’s stance is largely symbolic, and probably doesn’t have much effect on recruitment.
At least 2 federal courts have said the law schools are NOT violating the law. Now it’s up to the SC. Until the validity and meaning of the law are resolved by the courts, your implication here is wrong.
Of course, if they told the truth, they’d never have been accepted in the first place. DADT requires gays to lie, and then the honor code punishes them for lying (and allows the military to say “we didn’t kick you out for being gay, per se.”). Quite a catch-22.
The military is the quintessential top-down organization, isn’t it? If the message comes from on high that gays are your brothers-in-arms, then the grunts are MUCH more likely to treat them that way. How long can you cater to the lowest common-denominator soldier? If DADT is repealed, and grunts still display their homophobia, have Lou Gosset Jr. scream in their face, put them on latrine duty, or whatever. The military has many effective ways of enforcing rules. Of course there’ll inevitably be growing pains, just as with racial integration. But the military is on the wrong side of history here, and is just delaying the inevitable.
Mom says hi. 😉
But the military is on the wrong side of history here, and is just delaying the inevitable.
Agreed and I think you have an excellent point re Louis Gossett, many troops would respond positively to integrating LGB if an order from up top came down. Many would not though and I fear at a time of war it MAY not be a good time to fiddle with the military’s chemistry. But I do see your point and now is as good a time as any. Thanks for your thoughts.
PunjabiJAG:
Re your comment:
The military is no longer allowed to ask about a recruit/applicant’s sexual orientation. That contradicts the first part of “Don’t Ask” in DADT. There is anecdotal evidence that some branches and recruiting locations still use outdated application forms that include this question (E.g., Variations on “Are you gay?” or “Have you ever had a relationship with a member of your same sex?”), but those locations are in violation of Defense Department policy in implementing DADT. See, e.g., DOD Directive No. 1304.26, at “Applicant Briefing Item on Separation Policy” (quoted below)
MF, Hypothetically, couldn’t a soldier still be caught for lying even if there is no explicit sexual orientation question on the application? For example, the application could ask, “list ALL clubs and organizations of which you have been a member,” and the recruit neglects to mention the LBG students association. (I heard an omission like this caused a gay teacher to be fired by his school district.)
Supreme Court has come down against the law schools 8-0.