August 19, 2004

Solomon in All His Foolishness

by PG

Phil Carter has a Jurisprudence piece in Slate on the subject of law schools that wish to prevent the military from recruiting on campus. Actually, this attempt goes beyond law schools; entire universities, including undergraduate programs, are engaged in the same effort. (The Fray selections at the bottom of the page actually are worth reading for substantive responses to Carter's argument.)

Carter's concluding remarks, about how obstructing the movement of students from top universities (who are usually more socially liberal than the general population) into the military would "impede institutional change within the military on this issue by at least a decade, if not a generation," reminded me of an email discussion I had with U-Hand/Gabriel Mendel last year when he first started his blog. I asked him how he, a person supporting equality for gays, could participate in the military, and he gave an answer similar to Carter: change can come from within an institution, and his presence as a pro-equality JAG may facilitate that change.

This is an excellent response to an presumptuous question, and explains why individuals who choose to work for the military are not somehow betraying their political beliefs. However, I don't see how it overcomes the schools' objection to having military recruiters.

Why should such recruiters be treated differently than any other employer with a discriminatory policy? If Jerry Falwell's ministries have an explicit ban on hiring gays, presumably we wouldn't think that schools ought to permit the organization to recruit on campus, in the hopes that pro-gay-rights straight students will join and change the policy.

One could say that Falwell doesn't give money to various liberal universities, while the government (of which the military is an arm) does. Such is Gabriel's annoyance:

I would, however, like to register my continued discontent with the hypocritical policy of these schools that desire to take the federal government's money but refuse to allow its military recruiters on campus. If a university wants to take a principled stand and refuse these recruiters, let them bear the consequences of the action. But to want it both ways, to be able to exclude the recruiters, put up roadblocks preventing students from seeking military service, all while taking money from the same Congress responsible for "Don't Ask, Don't Tell"? That I cannot accept.
It seems that the only distinguishing factor between Falwell and the military, when it comes to discrimination on the basis of sexual orientation, is that the government will pay off universities to accept this discrimination, while Falwell won't. And certainly Falwell would be well within his rights to condition any aid he gave to a school on its accepting his recruiters -- which is what the Solomon Amendment does.

Nor is there a great historical precedent for Carter's hope that "future movement on this issue [...] will likely occur with the election of another politician willing to change this policyŚnot by judicial fiat." While one might point to Truman's -- not the Supreme Court's -- bringing about the desegregation of the military, Gabriel himself has pointed out that a) "don't ask, don't tell" is statutory law, so Congress would have to agree to changing it; and b) the military exhibited institutional resistance to Truman's order.

The first thought that came to my mind when I read about the First Amendment objection (on grounds of expressive association) that the law professors are bringing against the Solomon Amendment was, "Hey, weren't the Boy Scouts arguing that they should be able to ban gays on the grounds of expressive association?" Fortunately, David Bernstein already has mined that ground.

Justice Stevens's dissent to Dale said that if the Scouts were more clearly an organization that existed to exclude gays, or to fight against gay equality, their expressive association claim would be better. For example, one wouldn't require the KKK to accept black members (Clayton Bigsby notwithstanding), but the BSA's purpose does not seem nearly as anti-gay as the KKK's is anti-black. At the time Dale was expelled, nothing in BSA's mission statement or Scout Handbook articulated a problem with homosexuality; indeed, discussion of sexuality was to be kept strictly out of scouting.

By that reasoning, law schools would have to have fighting discrimination against gays as a fairly major goal to be able to use "expressive association" to overturn the Solomon Amendment. I really don't know how big a priority the pursuit of equality is for the average university. At the University of Virginia, it didn't seem to be a big deal; indeed, the University itself discriminates in providing benefits to married couples, but not to same-sex partners (who by definition currently cannot get married). At Columbia, on the other hand, issues of sexual orientation equality seem to have a higher priority; the partners of law students are specifically invited to events, and benefits are provided to the same-sex partners of employees.

In a parallel universe in which Stevens's dissent had been the majority opinion, therefore, Columbia University might be able to triumph over the Solomon Amendment, while schools like Georgetown (also failing to provide partner benefits) would have to permit military recruiters or lose federal funding. This isn't a particularly useful line of inquiry in the universe in which Dale lost and the BSA may constitutionally discriminate against gays, but I thought it might provide some cover to the law professors whom Bernstein charges with hypocrisy. "The BSA wasn't really anti-gay. But us, we're really anti-discrimination!"

August 19, 2004 09:50 PM | TrackBack

It seems that the only distinguishing factor between Falwell and the military, when it comes to discrimination on the basis of sexual orientation, is that the government will pay off universities to accept this discrimination, while Falwell won't.

No, the government is "pay[ing] off" (i.e. funding) these universitites to promote research and the like. The question is whether US taxpayers should (or must) pay to fund an institution that is actively standing in the way of the taxpayers' policy, as enacted by their elected representatives. I'm not sure that there is even much of a question here -- what these schools are asking for is free money, no strings attached? Dream on. I think the government office that gives out the free money with no strings is right next to that place that hands out the free lunches.

Posted by: Burning Daylight at August 21, 2004 03:41 PM
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