Lawprof Dan Pinello gave me permission to quote this email he just sent to our list of conlawprofs:
In today's New York Times, Linda Greenhouse reports that the Supreme Court is likely to uphold the Solomon Amendment. However, she relates an interesting exchange from oral argument:
"Asked by Justice Ruth Bader Ginsburg what a ... school 'could do concretely while the [military] recruiter is in the room,' [Solicitor General Paul D.] Clement replied that as long as the school granted equal access, 'They could put signs on the bulletin board next to the door. They could engage in speech. They could help organize student protests.'"
I plan to rely on this representation to the Supreme Court by the chief legal advocate for the Solomon Amendment. As a member of my school's Committee on Cultural Pluralism and Diversity, I will help organize protests every time military recruiters set foot on campus.
I urge all of you also to follow the Solicitor General's lead.
I note
Dahlia Litwick's report on this part of the argument:
Clement, flashing his counterculture creds, suggests they could "put up signs on bulletin boards, give speeches, organize a student protest."
He briefly loses Kennedy. "The school can organize a protest where everyone jeers at the recruiters and the applicant? That's equal access?" the justice fumes. Clement stands firm. Yes. Cue Scalia the wiseacre: "You are not going to be a military recruiter are you?" Scalia and Kennedy don't want to allow student jeering. But Clement would permit it. "This statute gives a right to equal access," he says. After that, recruiters are on their own.
I suppose that at some point a protest would interfere with the recruiting and violate the law, but the "more speech" remedy should be available to the law schools. I'd like to see those who object to the "don't ask, don't tell policy" be respectful to the students who are seeking out this public service job and to the military recruiters who did not make what is a statutory policy. Hostility aimed at these persons is wrong and should backfire. The important thing is to present the civil, reasoned argument for allowing gay persons to serve in the military. This is an appealing and sound argument, and it is most persuasive when it is presented in a calm, articulate way. I'd like to see the law schools hold symposia where the issue can be discussed in an intellectual environment, with good advocates from the military to explain the policy and debate with their opponents.
Posts
92 comments:
If you are looking for an interesting arugment on gays in the military here is one:
http://www.blackfive.net/main/2005/11/lively_discussi.html
Ann, I think you're right about this. Certainly the campus should be able to present their views. But if they act like asses, they'll ruin their own arguments. Strange that protesters don't realize the fine line that they tread.
The smart form of protest would be for every gay person on campus to sign up for an interview with the military - talk to them for an hour - then mention at the end that they are gay.
Eat up all of the recruiters time. I have a gay friend at a top law school and he says that's what they do. He said the military recruiters are always very nice and say that the gay candidates are highly qualified but that the recruiters don't make the rules.
I think that's fair.
Could someone clarify something for me? Would I be correct in concluding that creating a hostile environment through jeering and other forms of harassment may be prohibited through legislation since race and sex are protected classes while the same thing can't be extended to military recruiters because they're not?
Hostility aimed at these persons is wrong and should backfire.
I agree with your approach ann, but I'm wondering how it would backfire if students did take this approach? Do you think States would start passing laws that make gay people second class citizens. Woops they're already doing that? Do you think they would kick gay people out of the military? Woops - they already do that. Do you think they would pass laws that would stop gay people from adopting and passing laws that ban any benefits whatsoever for gay people? Woops - they're already doing that. Do you think some people would start gay bashing and inflicting violence against gay people? Woops - they're already doing that.
What exactly would "backlash" involve? It can't get much worse.
Hey, that's a great idea. Pretty ethical too, screwing your classmates like that by denying them the opportunity to interview. Yeah, that'll teach the military. Kind of like pulling resumes out of the envelopes for law firms where you'd like to be hired, except for a good cause.
It makes me glad that although my school administration and maybe 30% of the students were vociferously in favor of a total military ban, that we still had an oft-enforced and strict honor code that would ban that kind of behavior.
I think by "backfire" Ann means that the bulk of moderate people who could easily be convinced that allowing gay people to serve honorably in the military will instead turn away in disgust when they see images of ridiculous pampered college students (and worse radical professors in their earnest tweeds and John Lennon glasses)engaging in street theater, holding signs asking soldiers to frag their officers.
Is that really so hard to understand?
Hey, that's a great idea. Pretty ethical too, screwing your classmates like that by denying them the opportunity to interview.
And how exactly are the "classmates" screwed? They are perfectly free to sign up as well. Seems like the only people who are screwed are the recruiters.
Or are you saying that law schools should not gays interview with the military? That seems to be exactly what you're saying. Which means the law school would have to implement a bigoted policy as well. Now why should they do that?
I've always had a feeling that this whole issue is just a proxy which allows college professors and university administrations to cloak their more general anti-military feelings and hostilities in the guise of concern for equal rights for gay people.
I personally think that advocating the end of official discrimination against gays serving in the military is a profoundly pro-military position; it seeks to make the path to serving one's country free of obstacles for a significant segment of the population, thereby making the military even more representative of the civilians that it protects (and is comprised of). Having personally known a number of gay soldiers in several branches of the military both honorably and, to their fellow soldiers, fairly openly makes the "don't ask, don't tell" policy all the more hypocritical. Israel has suffered no unit cohesion or other problems since they lifted all official barriers to gay people serving openly in the Israeli army (which I admit is a slightly different issue given that service is compulsory in that country), and I have enjoyed, on a number of occasions, watching the rhetorical convolutions that result from asking anti-Israel, pro-gays in the military friends if they would hold the Israeli military up as a good example of successful integration. "Don't ask, don't tell" is a nonsensical policy, and an outright ban is both insulting to the professionalism of our soldiers and to those gay people who want to serve without fear of damaging official reprisal.
But, as I said, I feel that in some cases the "don't ask, don't tell" policy is not really what these universities are protesting against.
Thanks for the link to that blackfive thread, showhank. Interesting reading.
I think by "backfire" Ann means that the bulk of moderate people who could easily be convinced that allowing gay people to serve honorably in the military will instead turn away in disgust when they see images of ridiculous pampered college students (and worse radical professors in their earnest tweeds and John Lennon glasses)engaging in street theater, holding signs asking soldiers to frag their officers.
Would you have advised Rosa Parks to just go to the back of the bus, because otherwise she would create a "backlash".
She did create a backlash by the way. But I still think black people are better off because of what she did.
Shadycharacter - What you're basically arguing is that gay people accept that they are second class citizens and just shut the hell up.
No thanks.
Palladian - These law schools do not have any policy in place that bans the military. They only require that recruiters have a non-discrimination clause in place for sexual-orientation. Those rules came about in reaction to "Don't Ask - Don't Tell"
As has been pointed out (on volohk.com, I think), the ban on gays in the military is in fact a LAW, not a policy of the the military or the Bush administration. The recruiters CANNOT legally pursue gay candidates for the JAG. Nor can they change the policy.
The people who should be pressured / protested are the ones that can change the law, aka Congress and the President.
And I have to add that I wish people who want to protest would drop the Act-Up street theater crap and actually try to think of their protest as a way to convince people of their point, not to mock our military recruiters and obstruct and belittle those who want to learn about careers in military law.
Downtownlad: "I'm wondering how it would backfire if students did take this approach?"
I think it would create some sympathy for the students who are being harassed and would make some people think the gay rights movement is radical and marginal. It's offputting to moderates. The appeal to justice and equality here is so strong that, I think, angry political protests are counterproductive. Also angry protests might just read as anti-military and anti-war, which alienates a lot of people who should agree with you.
Downtownlad: Rosa Parks represents the style of protest that is very persuasive to moderates, that appeals to the sense of justice and creates great sympathy. I said hostility aimed at students and recruiters was wrong. If Rosa Parks had yelled in the face of the bus driver, maybe you'd have a parallel. See why that wouldn't have been as good of a protest as what she actually did?
The appeal to justice and equality here is so strong.
Unfortunately, most Americans don't agree. And it's doubtful they will anytime in the next 25 years. Great - I'll be in my 60's then . . . .
I'm not advocating the yelling and harassing approach. And as I understand it, no such harrassment has taken place at the schools in question, such as Yale. I think the debate has all been very civil. And if anyone has any counter-examples, I'd like to hear them.
And has that civility helped gay people one bit. Nope. We're still second-class citizens in the eyes of the law. And that won't be changing soon. If anything, it's getting worse.
"It's offputting to moderates. The appeal to justice and equality here is so strong that, I think, angry political protests are counterproductive. Also angry protests might just read as anti-military and anti-war, which alienates a lot of people who should agree with you."
Exactly right, Ann, and I say that as a gay person who basically supports the cause in this case. I just wish protesters could drop the theatrics and hysterics and approach this as adults, but the absurdist, emotionalist, 68er, Brechtian, puppet-head approach seems to have overtaken all moderate forms of protest in the world.
Just to clarify - I agree with you about hostility. That would be unlawful. I just actually don't think it would get that much worse for gay people even if they engaged in violence. When 75% of Texans vote against your rights, how much worse can it get??? Again - not justifying violence in any way.
But I do think gay people signing up to talk to the military recruiters is a good form of peaceful protest. Recruiters should get a chance to meet potential lawyers that they somehow deem unfit to serve.
I just wish protesters could drop the theatrics and hysterics and approach this as adults.
Palladian - Can you provide me one example theatrics and hysterics? Or are you stereotyping what you "think" is happening?
Downtownlad: The gay rights movement has made amazing progress over the years. Don't be so pessimistic. Time is on our side. So are the enlightened arguments. Show some faith in people's good judgment, powers of reasoning, and empathy.
The gay rights movement has made amazing progress over the years. Don't be so pessimistic. Time is on our side. So are the enlightened arguments. Show some faith in people's good judgment, powers of reasoning, and empathy.
I'd like to be optimistic. But I'm 37 years old. As I said, I'll probably be 65 before I get equality in this country. And when you're that old, what's the point? It just gets frustrating. It's 2005. The whole world is starting to get it, and this country is going backwards.
Gays were on the verge of getting into the military in 1992. It's 13 years later - and we're not even close.
Ann,
"with good advocates from the military to explain the policy and debate with their opponents."
Why from the military? could the military arbitrarily and unilaterally abrogate 10 U.S.C. §654? If so, what other statutory provisions can, or should, the military choose to ignore? If not, why have the military explain the policy - why not have someone from Congress - which passed this policy, which is the body responsible for repealing it or not, and from which these Universities are happy to take cash?
Characterizing DADT as a "military policy" is, it seems to me, an attempt to alleviate one's conscience, to facilitate taking the money from Congress but not acknowledging that it is the same Congress that gives this money as which is responsible for the hated discrimination.
Law schools are part of a larger university. What was bizarre, sleazy, and contrary to the public interest in this case was that the Law Schools apparently didn't pursue kicking the recruiters off of the entire campus, just out of the Law Schools.
What representation of the university is that?
What message does that send to law students and to the community.
Is this what we need? Official school cover for law student chickenhawks?
The law schools should have sought to kick the recruiters out of the entire university, or just STFU.
Typical lawyer bizarro world notions of advocacy and privilege.
I entirely agree with DTL's first post in this thread. I think that's entirely appropriate, and a much better way to accomplish one's goals.
Simon: "Why from the military?" Congress needs to change the law, but the opinion from the military is key to their retaining it. They relied on arguments from inside the military. I'd prefer to hear the argument made by someone inside the military who supports it than just some political hack who will provide the inside view second hand.
Downtownlad, do you know of any reason why things have changed in 13 years? Because it seems to me that things are much better now than then (see Texas v. Lawrence (2001) ; Romer v. Evans (1996)).
Romer v. Evans HAD to go through the courts, because the Colorodo law essentially excluded gay people from the legislative process. Try to pass a law that gives gays incremental rights? Woops - that's unconstitutional according to Colorodo law.
There's nothing wrong with gays going through the courts when they have no other choice.
But I don't expect Romer and Lawrence to stand for long. Not with this court. They'll likely be overturned within five years, and gays will soon be imprisoned again.
As for Eugene Volokh - I think he's hypocritical - considering that he has a well-known policy of banning gay commenters from his blog.
Agree with Ann. Law profs should do what they do best -- writing articles and holding symposiums. Persuasion.
"Organizing protests" seems to be of a different caliber of reaction, and not one where the activist profs are likely to come across as completely lucid.
"As for Eugene Volokh - I think he's hypocritical - considering that he has a well-known policy of banning gay commenters from his blog."
Okay, that's the kind of spurrious assertion that demands evidence. I comment over there occasionally and I've not been banned. Please explain yourself, because unless you produce some solid evidence, you shouldn't be forgiven for making such a vile accusation.
Vile accusation? I for one can longer post.
I was banned after noting that one poster's comments about gays "recruiting" children and then molesting them was a bigoted attitude.
It's funny, because the guy who said gays are pedophiles is still posting.
I know two other gay people who were banned as well for making similar comments.
That marks a trend in my book.
Downtownlad,
Of course it could be much worse. It has been much worse in this country, and it still is much worse in many other countries across the globe.
Stop shouting about this monolithic 'gay people.' Start making reasoned arguments as a human being and a citizen. What is it that this movement wants? Five minutes ago 'they' wanted to march down the street in bondage; now 'they' want to settle down in suburbia. Go through the legislature and not through the back door of the courts for your goals (and gay marriage is fine with me)--the legislature is our proxy and you're going to have to live with us eventually anyway, so convince us.
As for campus recruiting, how are you going to protect the rights of the people who actually sign up, in spite of their professor's call to the barricades, or don't their rights count as much as yours?
Go through the legislature and not through the back door of the courts for your goals.
So should we overturn Loving V. Virginia and tell interracial couples that they should go through the legislature if they want to get married? It sounds like that's what you're saying.
As for campus recruiting, how are you going to protect the rights of the people who actually sign up.
And exactly what "right" would that be? Are law students so unintelligent that they don't know how to go down to the military recruiting center themselves? It's 1-800-army if they don't want to pay a visit. And I never advocated blocking other students. I just said that gay students should interview with military recruiters and then mention that they are gay at the end.
Finally, I assume you're not law-trained, or you wouldn't have made that assertion about "this court." I doubt you could even get cert granted on a case challenging Romer or Lawrence for the next 20 years on stare decisis grounds alone.
No, I'm not a lawyer. But I am aware that Justices such as Clarence Thomas have said that they don't give much credence to stare decisis. Scalia pretty much feels the same way. And likely Roberts and Alito as well.
How many challenges have we heard to Roe V. Wade since 1973? Lots. There's an abortion case every few years. If they can get Roe V. Wade overturned, I expect they'll go for Lawrence and Romer while they can. Besides abortion, the number one goal of the religious right is to make homosexuality illegal again. They only need one more justice, which will probably happen when Stevens dies.
I stand by my charge about Volokh. But this is Ann's blog, so I don't want to get into details here.
"Go through the legislature and not through the back door of the courts for your goals"
Perhaps they have an inbuilt predisposition towards taking the "back door" route? ;)
The comment about Volokh seems laughable. It seems to me that what you mean is, Volokh banned YOU and thus, you assume he banned you because you're gay.
downtownlad - you need to back up you accusation against professor Volokh, else every point you make henceforth is suspect. I say this as someone sympathetic (while not always agreeing) with your views on this issue.
Interesting, BTW, that you are demonstrating Ann's 'backlash' point quite well all on your own.
Simon - boo, I heckle thee for your first paragaph. Your second paragraph is right on though.
If the students (and staff) get hostile in some fashion, and the school supports them in this...
I hope the alumni practice their own form of free speech... and quit writing checks.
Pooh - Contrary to what you think, gay people have a right to their own "individual" opinion.
If you want to make blanket opinions about ALL gay people based on one gay person's thoughts (mine), that says a lot more about you than it does about me.
Simon - Like I said, I'm not going to comment further about Volokh on Ann's blog. If you want further examples - please e-mail me. Let's just say that I have lost all respect for him.
In the interest of not feeding trolls- subject change...
I find it interesting that the effectiveness of the "more speech" position is being demonstrated by the comments to Prof. A's earlier post on the 'Roberts style': "hearing the audio of the SCOTUS sessions has been interesting and informative. The Court has become such a favorite object of scorn in our society. But it's possible that this slight lifting of the veil will make their rulings more understandable to the public, humanize the institution, and maybe reduce some of the nastiness that often fills people's condemnations of SCOTUS rulings."
As a response to the "all judging is political" meme, demonstrate that this is how we make our decisions. More speech = better understanding from those who care to listen.
Simon - boo, I heckle thee for your first paragaph.I know, it's terrible; I was being fascetious. :p
Troll? I love it how "conservatives" always roll out the "troll" word when somebody says something they disagree with.
Typical. Stifle dissent at all costs. It also shows how narrow-minded conservatives can be. The same as the extreme liberal left. The only place you can actually find people willing to discuss an issue honestly is in the middle (i.e. a blog like Althouse).
Which is exactly what the military is doing here. Gays want to protest about "don't ask, don't tell"? Well - we'll use the power of the federal purse to shut the gays up.
And it's working pretty well.
Unfortunately - we lose our freedom too. Very sad.
Um, Lad?
Are you self-identifying as the troll? :)
That's rich!
Well Shadycharacter - When people tell you on a daily basis that you're a threat to civilization (because I'm gay), you learn to very quickly pinpoint who's insulting you.
Go through the legislature and not through the back door of the courts for your goals (and gay marriage is fine with me)--the legislature is our proxy and you're going to have to live with us eventually anyway, so convince us.
That pretty much ignores the history of discrimination through state laws in this country. Jim Crow was enacted through the legislature, in proxy for the will of hateful, bigoted white people. Blacks would STILL be trying to "convince" whites of what it means to have inalienable rights.
And we don't have to live with you--but we're STILL entitled to our rights as American citizens. As long as state legislators make election-year rituals out demonizing gay people, and as long as yahoos keep turning out in droves to pass anti-gay amendments to their states' constitutions, don't lecture gay people on trusting the will of the people, which if too often expressed as tyranny.
Gay people must pursue both options: make our arguments to sway moderates to pro-gay positions (geez, it'd be nice if those moderates would not be so damn coy, and have to be courted to do the right thing>, and use the courts to protect us from vile, unconstitutional attacks on our basic rights.
Lad writes:
"When people tell you on a daily basis that you're a threat to civilization (because I'm gay), you learn to very quickly pinpoint who's insulting you." When someone in a crowded room shouts "Jerk" are you that guy who says "What?"
I'm no psychologist, but wouldn't this be a classic case of persecution complex?
If you have people calling you a "threat to civilization" EVERY DAY, I've got some news for you it's not because you're gay, it's because you are a _____(fill in the blank as you choose - I'm guessing that you'll fill it in with "gay" :))
Maybe you should re-evaluate your interpersonal skills?
elizabeth writes:
"That pretty much ignores the history of discrimination through state laws in this country. Jim Crow was enacted through the legislature, in proxy for the will of hateful, bigoted white people. Blacks would STILL be trying to "convince" whites of what it means to have inalienable rights."
It must have been those all those black congressmen who passed the civil rights amendments. I can only guess you are being intentionally historically naive.
Actually Shadycharacter - it's George W. Bush who's making those slanderous charges against gay people.
History will judge him harshly.
I'm no psychologist, but wouldn't this be a classic case of persecution complex?
"The Vatican newspaper said on Tuesday that homosexuality risked "destabilizing people and society," had no social or moral value and could never match the importance of the relationship between a man and a woman."
"Good morning. The United States Senate this past week began an important discussion about the meaning of marriage. Senators are considering a constitutional amendment to protect the most fundamental institution of civilization." - President Bush
Oh yes - silly me for thinking that all of this talk about threats to civilization was targeted at gay people . . .
DTL,
You are clearly not even reading what you are responding to.
I say this :"downtownlad - you need to back up you accusation against professor Volokh, else every point you make henceforth is suspect. I say this as someone sympathetic (while not always agreeing) with your views on this issue."
Yet you later assume I am a closed minded conservative (or a closed-minded liberal, whichever) attempting to stifle dissent. I'm not saying don't dissent, I'm saying you are doing it wrong in that instead of convincing, all you are doing is pissing people off. People who might just agree with you. (For the record, I do, in that DADT is stupid.)
I apologize for the troll remark, it was ill-considered on my part. However, when you make extreme accusations and then refuse to back them up with any evidence, well that's trollish behavior.
You are also missing the point in that this debate is about whether the Salomon Amendment is constitutional (it is.) Not about whether it is good policy (In my opinion, it isn't.) The Court is equipped to decide the former question, and should have no influence on the latter.
Pooh - I was responding to your "backlash" comment. The implication was that my comments would have a backlash on all gay people.
I still think that says more about the people doing the backlash in the first place. It's the equivalent of hating the Jews because you don't like what Albert Einstein says.
Again - I'll take the Volokh thing offline. I'd discuss it on Volokh's blog, but I'm banned from there for standing up to anti-gay bigots.
I still think Solomon is unconstitutional. The aim is not to recruit people into the military. The aim is to take a sledgehammer to those institutions that raise a mild protest to the "don't ask, don't tell policy." In other words - to silence dissent. Just like Volokh.
DTL, in the immortal words of Abe Simpson, "Go sell crazy somewhere else, we're all full up here."
Note, I AM INDEED trying to stifle your dissent! Stifle! Stifle! Stifle!
Are you stifled? What's that, there's no actual way for me to stifle your dissent? All I can do is make fun of your crazy-aunt-in-the-attic "everyone in the world is out to get me" conspiracy mongering?
BTW, I don't doubt for a minute that Volokh banned you from his message boards. I remember your behaviour in the comments on his site back in Volokh's "gay days". You were unhinged and uncivil and uncouth. If you were banned it was after about 50 incredibly nasty comments.
If anyone is interested, search on Volokh for "downtownlad" and you'll see what I mean.
If you can get a pro-gay marriage libertarian (not conservative) law professor to ban you from such a free-wheeling blog, the problem lies with your manner, not your orientation.
Aaron/Shadycharacter - It's quite obvious that both of you have a problem with a gay person who can think for himself and refuses to be put in his place. That's nice. Please ignore me then.
I'm enjoying discussing the issues with others without resorting to your name calling("troll", "jerk", "poisonous", etc).
Pooh - You should read up on the "unconstitutional conditions cluase" as I discussed in yesterday's post. Funding is irrelevant in this case. The question is whether or not the law school's actions are properly defined as "speech".
As for comparing gays to the plight of blacks, you are right. Gays have had it much harder than black people (at least since slavery ended). Blacks always had their friends and families to turn to when society rejected them. Gays have the double whammy of not only being rejected by society, but by being rejected from their families as well. That is why the gay suicide rate is so high. Perhaps you should research it.
Elizabeth,
You do have to live with heterosexuals, unless you are going to go off and start your own country somehwere.
I think D.lad and you are so angry, and you probably have plenty of wounds to nurse, that you basically want to tell heterosexuals to go to hell. That's your right, it's a free country, but it won't help your cause.
At least E will address issues, but Lad chooses his tangients carefully.
So, see you.
DTL, you may think that Solomon is unconstitutional all day, but you'd be wrong. It's settled that Congress can attach strings to money (highway funds and the 55MPH limit (now obviated) and the 21-year old drinking age come to mind immediately).
Yup. Though I think this is a closer case than those two in that there is at least a whiff of viewpoint suppression here. (Though not that strong, as there are plenty of other avenues for a law school to question the wisdom of DADT.) At a certain point, the spending power would irreconcilably conflict with 1st Amendment protections, I would think, this is not yet that case.
As to the rest of your post. -Nods- Well said.
Patca - How nice of you to decide when Elizabeth and I are angry.
Unfortunately - you are wrong. A vigorous defense of our rights, does not make one angry. It makes one passionate. Please don't mistake the two.
And yes - we do have to live with heterosexuals. Someone should remind straight people that they have to live with gay people as well, and perhaps it would be better to treat us with common decency.
DTL rants:
"Aaron/Shadycharacter - It's quite obvious that both of you have a problem with a gay person who can think for himself and refuses to be put in his place."
To which I'll respond, go ahead and pat yourself on the back for one of the most un-self-aware comments of the day. Do we taunt you because you "refuse to be put in your place" (which would be what, exactly, a middle-class white collar professional who happens to be gay, not that there's anything wrong with that, who compares his plight unfavorably with that of black sharecroppers in the Jim Crow south?) or because you go out of your way to attact the mocking?
You're like that poor kid in elementary school everyone gangs up on, with the diffence that you are presumably an adult and aware of the reactions you bring out of others as you try, in your own inept way, to browbeat others. In the spirit of Christian charity, I pray that this is only your blog persona, because otherwise what a sad and lonely person you must be...)
DTL further writes:
"I'm enjoying discussing the issues with others without resorting to your name calling("troll", "jerk", "poisonous", etc)."
Is it possible, DTL, that you do not realize that calling someone a "bigot" is also name-calling? Not to mention the religous slurs that pepper your postings from Volokh and even here on Althouse. If you claim truth as a justification to YOUR name-calling, why could you possibly object to being called a "Troll" (which you self-identified as) or a "jerk" (as even those who agree with you on all points appear willing to attest).
I'm not sure this exchange is in keeping with Ann's civility request, so I will stop responding. Unless...
Though I think this is a closer case than those two in that there is at least a whiff of viewpoint suppression here. (Though not that strong, as there are plenty of other avenues for a law school to question the wisdom of DADT.) At a certain point, the spending power would irreconcilably conflict with 1st Amendment protections, I would think, this is not yet that case.
Then how was the Boy Scouts any different? Why did they have to fire Dale just for being gay? Couldn't they just put out a press release, saying that they disapprove of homosexuality and the only reason they can't fire a gay Boy Scouts leader is because of New Jersey anti-discrimination laws?
Seems like the exact same thing to me. A government trying to dictate who an institution has to associate with, and the courts finding it unconstitutional.
DTL,
I just went through yesterday's post and the comments, where do you 'discuss' unconstitutional conditions? If homosexuality were a protected class, you might have a leg to stand on. At this point, it isn't, at least not under my reading of Lawrence. Whether it should be or not is another debate, not neccesarily on point.
As the good professor said, Salomon is heavy-handed and stupid. That is NOT unconsitutional, else the Court would in effect be a Super-Legislature, and I don't think anyboy wants that. (Wait, according to you it already is. I'm suprised you haven't Godwin-ed this thread already).
Just to be clear, I don't hate gay people. I'm beginning very much to dislike you on your own merits. And I doubt I'm the only one.
Why am I letting myself get sucked in?
Because it's fun, Pooh.
That's why must simply resist. See, I'm trying to white-knuckle it, but I'm still refreshing the page to see what DTL comes up with next.
Must. Move. On. To. Instapundit.
DTL, as to Dale, huh? The boyscouts are manifestly not the U.S. Government. The cases are different because the situations are drastically different.
Seriously, and I'm not trying to be rude here, but if you want to discuss big-L Legal Issues, especially on the blog of a Constitutional Law professor, it helps to know something about how law and jurisprudence works. You are taking case results out of context and ignoring processes by which decisions are reached. It just doesn't work that way. Dale does not exist in a vacuum and neither does FAIR, and the context of the two cases vary greatly.
Shadycharcter,
If people don't want to be called a bigot, they should stop passing bigoted Constitutional amendments.
If people don't want to have their religion criticized, they should stop discriminating against people in the name of religion.
According to shadycharacter's rules, Gays should just stay silent when they're attacked. Not me. And if that annoys people, then so be it.
Seriously, and I'm not trying to be rude here, but if you want to discuss big-L Legal Issues, especially on the blog of a Constitutional Law professor, it helps to know something about how law and jurisprudence works.
You obviously haven't read the Appeals court decision then which made the exact same argument. Unless you're saying that appeals court judges don't know the law.
Just to be clear, I don't hate gay people. I'm beginning very much to dislike you on your own merits.
Because I'm a gay person who thinks for himself. Yup - makes a lot of sense.
The Third Circuit reversed, finding that the “expressive association” and “compelled speech” doctrines were more appropriate. Boy Scouts of America v. Dale (the Supreme Court’s 2000 case overturning a state law forbidding the boy scouts to exclude homosexuals from their ranks) compelled the conclusion that the Solomon Amendment, by forcing law schools to accommodate and actively help military recruiters, would curtail a school’s ability to express its antidiscrimination viewpoint.
http://www.scotusblog.com/movabletype/archives/2005/12/tomorrows_argum_23.html
Looks like I'm not the only one comparing this to Dale.
I spend almost as much time at Volokh.com as I do here, and Eugene is not homophobic. What he does do is try to maintain a relatively high level of discourse, and that is where I think downtownlad faltered.
I first started following blogs after Eugene called me on some intemperate remarks in a listserve group. I followed a link back to his blog, and the rest was history. And he was right. All that does is alienate people, without making a reasoned argument. (Admittedly we all are intemperate at time - but it is important to making your points to minimize that).
As to his views on homosexuality, he has come out in favor of civil unions (and persuaded me to do so too), but last I knew, he was still on the fence with gay marriage.
Here's a thought.
Instead of wasting the recruiter's time with bogus interviewees - raise hell with your representative in Congress.
The military is obligated to follow the ridiculous "don't ask, don't tell" policy because it is the law. If you have a problem with the policy, address it to the folks who have the ability to change it.
JAG recruiters are lawyers too. They are busy people. For most of them, recruiting is an additional duty, albeit a rewarding one, which takes them away from their primary duties. They didn't make the law, but are bound by it.
Also, the way I understand Don't Ask, Don't Tell - and this may admittedly be a distinction without a difference - is that you can be gay and be in the military. You just can't participate in homosexual acts.
"'Someone should remind straight people that they have to live with gay people as well.' Actually, they don't. Gay people are at best around 8% of the population, and most of it is concentrated in big cities."
You've got a blindspot: a member of your own family might be gay.
And I don't accept the idea that gay people can just hide what they are. This is a special demand, a special burden. It's true gay persons COULD carry it, but why are you saying they SHOULD? Would you require a black person who would pass as white to do it? It's harder for some than for others. Why don't you care?
It's usually when people start bringing out the NAMBLA comparison when talking about gay people that I bring out the bigot charge.
But it's Ann blog - and I'll refrain.
I think the comments above by brylin and criticalobserver speak for themselves.
DTL, the post from volokh you cite is not written by Eugene Volokh. It's by Clayton Cramer. And it's from more than two years ago...Brylin's analysis appears on point: the author was recounting a story about getting flamed for being critical of NAMBLA. Whether or not his account is true, and whether that author is in fact a homophobe is not clear from the article.
You've been tossing the bigot charge around all day, why stop now?
And, so no one else has to, this is DTL's latest post on his own blog:
"Mayor Jim West was recalled by a large margin today, 65% - 35%.
Good. This self-loathing, anti-gay pedophile deserves to die.
And he is. Of liver cancer. Good riddance."
Does saying that the above represents an odious statement make me a bigot too? Where do I sign up?
Palladian said, "I've always had a feeling that this whole issue is just a proxy which allows college professors and university administrations to cloak their more general anti-military feelings and hostilities in the guise of concern for equal rights for gay people."
YES! I feel the same way. I'm always very skeptical about college professors lobbying for gays in the military! It just does not compute. (Unless the professor's gay...and even then it *barely* computes.)
Fine Pooh - since you're absolutely insistent. Here is the story.
Clayton Cramer, a former guest blogger of Volokh, is a noted homophobe. He constantly makes the association that gays are linked to NAMBLA, that gays are pedophiles, etc. Which is patently untrue. Just read his blog.
Clayton made the same comments in Volokh's comments section. I said that Cramer is an anti-gay bigot. Which he is. I was banned. Clayton still comments.
Enough said.
Then Pooh - you have the audacity to slam me for wishing Mayor West a speedy death. Mayor West, a noted pedophile, is also one of the most vehmently anti-gay mayors in America. He sleeps with little boys, but then says that gay people are evil, and then votes to take away our rights.
So yes - I think Mayor West is a disgusting vile creature and I will not miss him when he dies.
So you're implying that I both support NAMBLA (since of course all gays are pedophiles - NOT!) and then you're implying that I want pedophiles to die. Which is completely contradictory isn't it. It's either one or the other.
I've made it clear on my blog which one it is - I want pedophiles to die. I don't apologize for that.
Well I'm glad to see that criticalobserver is encouraging every gay person in America to lie. How else are supposed to answer the question "Why aren't you married?", "What did you do this weekend?" etc. I mean, I obviously couldn't say "I went to the movies with my boyfriend" now could I?
Sorry, I don't lie. That would be immoral.
By the way - this thread is getting ugly - so I will refrain from commenting anymore, lest I lose my temper.
If I go to the movies with my boyfriend, I'm going to tell people I went to the movies with my boyfriend.
It's no different than saying you went to the movies with your wife.
How that explains the intricate details of my sex life is beyond me.
I've said it before and I'll say it again: I love sodomy. Sodomy rocks.
You want me to remain silent, because it makes YOU uncomfortable.
That's your problem to deal with criticalobserver. Not mine.
However much you may wish it, gay people are not going back in the closet anytime soon.
CO, I understand your point about there generally being no reason to bring up one's sex life in normal conversation.
However, I do not think it's reasonable to require gay people to pussyfoot around the fact that they have a significant other.
I mean, I might think it odd if my son's kindergarten teacher brought his boyfriend to class for a show and tell, but in normal life and normal adult interactions, it's natural that relationships are going to be discussed.
To put it another way, let's assume that you get a girlfriend at some point, bear with me, it's just a hypothetical :), is every person you introduce her to supposed to automatically assume that the two of you are "fornicating" every weekend?
Are you equally taken aback when acquaintences mention that they are co-habiting outside of marriage?
Whenever someone tells me he's Mormon, I can't help think about the funny underwear he's wearing. I always thought this was just my problem...but it's the Mormon's fault, and he's actually being rude to tell me he's Mormon which forces me to think about his underwear. Hmm! I did not know that.
Thanks JJ.
I think you'll be surprised to know that I don't support laws against discrimination either.
As a libertarian, I strongly believe in the right to free speech and the right to free-association without government interference.
I'm plainly aware that people don't like gay people out there. Yet I fully support the Boy Scouts having the right to kick gay people out.
But that's also why I oppose the Solomon Amendment. The government is trying to force association here and I have a problem with this.
I see this as a free speech case and free association case, not a gay rights case.
On the same note - I see gay marriage as a contracts issue, a freedom of association issue, a liberty issue, and a freedom of religion issue. And I don't think the government has any business regulating who I marry, as long as that person is a consenting adult.
Unfortunatly, we don't have any real Libertarians on the Supreme Court.
CO writes:
"I suspect DTL is one of those people who foists his sexuality on everyone, even if the context has not arisen for a relationship discussion."
I don't know that that's necessarily true, though if the real life DTL resembles the online DTL, I admit he'd be a pretty unpleasant fellow. I picture short, green, and living under a bridge and a mortal foe of the gnomish population :)
You also write:
"I have to deal with people who would disapprove of me cohabiting with a woman outside of marriage, and I'm not gay. But it's the same problem that DTL is complaining about. Gay people don't bear some special burden in that regard."
I simply do not believe it is the same. The norming of cohabitation has about a 25 year head start and also the benefit of a very, very large (and growing) percentage of the population having existed at least for a time in that state.
Then incest is OK!
It's already mandatory in the South. Go ask them. ;)
CO, I'm actually still working, so I can't give the board my full attention. If there's a delay, I apologize. However, not to be argumentative, but I did not take either of the quotes out of context. No moreso than you are doing when you snip the relevant text from another comment at the beginning of each of your posts.
Given that my point was made, however, how about responding to that point instead of critiquing my nettiquette?
Oh, that darn delay again, I see that you have. You write: "Religious people who think sodomy is nasty have plenty of hatred for cohabitators and sodomites of all varieties."
Well, no, not to the same degree.
I also see that you write: "I have it worse than gay people, because it's okay to treat like crap single guys who just like a different pussy in the bed every other weekend."
I thought I was discussing with an earnest, if strangely detached from objective reality, commentator. Now I see I may have interposed myself between a couple of jokers, one who argues that upper middle class gays have it worse than blacks under Jim Crow and another who I think is just pulling everyone's leg with his posting.
shadycharacter writes: "It must have been those all those black congressmen who passed the civil rights amendments. I can only guess you are being intentionally historically naive."
Shady, what does naivete have to do with facts? Southern legislatures didn't just decide to overturn Jim Crow laws. The courts forced them to do it. The Feds used their powers of law enforcement to ensure access to civil rights. Desegregation didn't occur because of attacks of conscience by white lawmakers in Alabama, Texas, Mississippi, Louisiana, Georgia and so on. But there is a long list of white judges throughout the South who can take a lot of credit. In many cases, it took force of arms to make schools open their doors to black students. And public facilities were desegretated by the determination of citizens, black and white, refusing to leave the lunch counters, until they were dragged out by white police officers. The U.S. Congress, the Kennedys and Johnson are key players as well. But don't be so silly as to discount the role of the courts in ensuring the rights accorded to all U.S. citizens aren't subject to majority whim. What's naive about that?
shadycharacter writes: "It must have been those all those black congressmen who passed the civil rights amendments. I can only guess you are being intentionally historically naive."
Shady, what does naivete have to do with facts? Southern legislatures didn't just decide to overturn Jim Crow laws. The courts forced them to do it. The Feds used their powers of law enforcement to ensure access to civil rights. Desegregation didn't occur because of attacks of conscience by white lawmakers in Alabama, Texas, Mississippi, Louisiana, Georgia and so on. But there is a long list of white judges throughout the South who can take a lot of credit. In many cases, it took force of arms to make schools open their doors to black students. And public facilities were desegretated by the determination of citizens, black and white, refusing to leave the lunch counters, until they were dragged out by white police officers. The U.S. Congress, the Kennedys and Johnson are key players as well. But don't be so silly as to discount the role of the courts in ensuring the rights accorded to all U.S. citizens aren't subject to majority whim. What's naive about that?
PatCa, I responded to a point you made that I feel is erroneous and overlooks the effect of bigotry in trying to attain full civil rights for gay people. I have no clue why you want to go ad hominem and reduce my concerns to being angry. I find your remark shallow, and condescending, and sadly illustrative of exactly what gay people face in trying to make our case to the voting public. Yes, that makes me angry. Too bad.
"Yes, that makes me angry. Too bad."
Yes, it is.
And it's not ad hominem so much as a suggestion that your constant anger, now admitted, defeats your arguments. How satisfying it must be to blame what you perceive as the failure of your arguments on us.
And, yes, many courts have helped the civil rights movement. Many legislatures passed civil rights laws, too, and many heterosexual white people are responsble for that.
I notice CriticalObserver has removed many of his posts. That seems to be a pattern with this guy.
CriticalObserver, having written something ridiculous that undermined his own argument and made him look like a bozo simply deleted his post and then denied he made the comment farther down the page. He initially wrote: "I have it worse than gay people, because it's okay to treat like crap single guys who just like a different pussy in the bed every other weekend."
Later, having removed said post, he writes, all agrieved:
"I don't know who you are quoting about this "pussy" business, but I think you are quoting each other."
Pat-you're really stuck on that anger thing. I assure you I don't live daily in anger. But I am certainly angered by bigotry. You ought to be, too. As for white, heterosexuals acting for civil rights, I'll certainly agree that the majority in fact must act for minorities to enjoy civil rights. You seem to need that pat on the head, so, thank you, Great White Heterosexual.
Meanwhile, think about what "inalienable" means. It means you do not have the power to grant me rights. They are mine by virtue simply of being born.
You are stuck on anger, Elizabeth, as reflected in every one of your insulting posts. But if that's all you want, to denounce white heterosexual 'bigots,' you got it. After all, it's a free country.
White heterosexuals have already stood for civil rights whether you admit it or not: Charlton Heston, who marched with King when it was dangerous, LBJ, who passed the Civil Rights Act, Abraham Lincoln, the two college guys who were murdered in Mississippi registering voters... I'll save you the effort by saying that even if they were all inherently totally evil and doing it for publicity or money, they still did it.
That's it for me, Elizabeth.
I appeal to Ann, if she's interested in getting involved!
Ann, haven't you said you get an e-mail with the text of every post as it's posted? Do you still have a copy of what CriticalObserver posted with regard to getting different "pussy" every other weekend.
It's clear he's embarassed about what he wrote. Maybe his mother reads the blog and knows his tag. I don't know, but I also don't like being called a liar.
Critical, do you join my appeal to Ann to clear this up?
What's that? Silence? I'm shocked!
Shady: It was not Critical Observer who wrote the comment you remember. It was one of the other posters here. I checked.
But, let me add, what I found was inside a quote, as if someone else had said it first, yet there was no relevant earlier use of the word "pussy," which was easy to search for in gmail.
It's easy to search for pussy in g-mail... What?!?
(Heh. Just tryin' to end this thread on a light note. Who said angry people -- or better put, people who sometimes get angry -- have no humor? Right Elizabeth?...)
Pat, you've lost the thread of this discussion. I have acknowledged white participation in civil rights actions--I don't know why it's so important to you, but read my posts, and you'll see me name names, including Johnson. By the way, the "two white guys" are Schwerner and Goodman.
The courts that stepped into the civil rights fray were helmed mostly by white judges, who took on the white, segregationist majorities of the south. It's the courts' role that I am lauding.
Where I disagreed with you was in fact specifically about the courts. You told Downtownlad that gay people ought to stop using the courts to get around the people, and instead rely on lawmakers and voters. My response is clear: the courts are a valid resource for anyone, any minority, seeking enforcement of their civil rights. The voting public can at times be tyrannical. Being a majority does not make them right. Bigotry sometimes wins the day. And there's nothing wrong, or unseemly, about being angry when bigotry prevails.
If you choose to continue interpreting that as an attack on "white heterosexual Christians," it's your issue. My perception is that you want gays to beseech, rather than demand, that you are somehow offended that we're not deferential enough. I'm stubborn, and I promise you, I'll never, ever kneel. If you can't bring yourself to support gay rights because gay people haven't asked you nicely enough, then I just have no idea what to say to you.
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