November 10, 2006

After FAIR

by PG

Eugene Volokh has aroused an unusual level of opposition among his commenters by blithely declaring, "The debate about whether law schools should exclude the military from interviewing on campus is ultimately not about gay rights. It's about perspective." In short, Volokh thinks that people who apply their anti-discrimination policies to the military lack perspective, because it's much more important that the military be able to recruit on campus or advertise in the Oregon State Bar Journal than that law schools or the Oregon State Bar have serious anti-discrimination policies. Or to approximate his argument more closely, supporting the military is so important that we cannot allow our solidarity with homosexuals who have been discriminated against to impede that support in any way, shape or form.

The "war on terror," particularly as currently prosecuted, doesn't strike me as a necessary war* obligating all citizens' assistance even if they have objections to the military's procedures, but I would revoke my personal policy against joining a discriminatory military if I felt the United States was at risk of ceasing to exist, as was a threat in the War of 1812, Civil War and World War II. For example, African Americans should have fought for the Union in the Civil War and for the U.S. in WWII despite the segregated military. However, we all have an obligation to help the people in the military, which is why I'm trying to organize a pro bono project for law students to assist soldiers and their families. (Though it may not get off the ground if I can't find a need that my group is likely to be able to help meet.)

Volokh doesn't take seriously that there is a general policy of boycotting advertisement by anti-homosexual advertisers; he seems to assume an anti-military bias that does exist among some boycotters, but not all. Boycotters without bias don't want the military to be unable to get recruits; they simply refuse to make an exception to the general policy to help them to do so. I support the law schools' applying their general policy of nondiscrimination to military as well as non-military recruiters, but I also pushed my Student Senate to assist students who were interested in the JAG program to get off-campus interviews instead.

Those of us with anti-discrimination policies should not relax them except in times of need, but we also can find alternatives to destroying our own policies that will assist a deserving, albeit discriminatory, employer. For example, the Oregon State Bar Journal could refuse to take the Guard's advertising, as it refuses the advertising of all other anti-homosexual employers, but could make an effort to publish writing about the work military lawyers do. Even if the Wall Street Journal banned advertising from the military, the article they ran about Phil Carter's work in Iraq was a much better recruiting tool than the lame ads the military puts out -- getting unjustly imprisoned Iraqis out of jail, without running roughshod over local authority, appealed to the little pro bono lawyer in my heart far more than the notion of boot camp did. Ultimately I agree with Volokh that "those institutions that defend our lives deserve slightly more accommodation." Where he's wrong is in thinking that "accommodation" must equal surrender of the underlying principle.

* Perhaps the most annoying part of Volokh's post and comments is his repeated nudge that "the people the U.S. military is fighting now would do much worse things to gay people than merely refusing to let them be soldiers." See, gay people, you have no right to think the military is bad, because they are saving you from being stoned by the Taliban! I confess that I see nothing terrorists could do as being worse for gay people than for everyone else -- to my knowledge, Islamic terrorists are far more likely to bomb government or Jewish buildings than Pride parades -- but Prof. Volokh may see the eventual takeover of the United States by Muslim theocracy as more plausible than I do.

November 10, 2006 01:54 AM | TrackBack

FAIR, of course, is moot now. And, there is no chance that any law school that gets any money at all from the government is going to disallow recruiters on campus. The only thing we can do now is focus on the underlying military discrimination policy.

Thank you for the excellent analysis and for the work that you're doing. Let us know how things go with your group!

Posted by: Denise at November 14, 2006 07:29 AM

:-) Thanks. I don't know if you keep in touch with any folks from your days in the military, but if you know anyone who could tell me what the legal needs that aren't getting fully served are, that would be a huge help.

Part of the reason that I wanted the Student Senate to assist students with off-campus JAG interviews is that I think we really need to eradicate this view of the law schools as anti-military service. It's become way too easy for people like Volokh to assume that the liberal elites just hate the military and want it to suffer.

I think focusing on how strangely the Don't Ask, Don't Tell policy operates would help get it changed. It really doesn't get much exposure -- I'm interested in the issue, and I didn't find out until very recently that if anyone is "found out" as gay after already being scheduled for deployment, s/he is sent anyway and the sexuality issue is shelved until s/he comes back. So how seriously is the military really taking its supposed concerns about unit cohesion, etc.? I'd also like to get a big group of straight military (maybe it would have to be recent ex-military, to avoid the can't-dissent-in-the-ranks problem) people who would organize against DADT. They can be the voice saying "This isn't for the military's sake, this is for the anti-queer Congressmen. The military doesn't want this and in some cases finds it harmful to our goals of getting and retaining the best people."

Posted by: PG at November 15, 2006 02:40 AM

As you may remember, I worked for the Servicemembers' Legal Defense Network this past summer (when we failed to meet, damnit!). You should look over their site -- in particular drill down on some of the links -- they have tons of information about being gay in the military and DADT.

If you ask Congress, they'll say: "We're only doing the the military tells us we should do", and if you ask the military you'll hear: "It's out of our hands, this is a law that Congress passed and we can do nothing about it." I know. I've spoken personally with representatives from both.

Posted by: Denise at November 19, 2006 07:48 AM
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