December 6, 2005

Rumsfeld v. FAIR.

The Supreme Court hears argument today in the Solomon Amendment case, with the audio to be released immediately. Expect lots of commentary here and elsewhere later today. For now, the best on-line review of the issues that I know of is last week's debate between Yale lawprof William Eskridge and George Mason Dean Daniel Polsby.


Bruce Hayden said...

Probably no surprise, but I find Polsby a lot more convincing than Eskridge. I think notable the points that:
- The military policy on Gays was set by Congress and codified at 10 USC 654 and FAIR is not apparently contesting the legality of that statute.
- The University burden of Title IX of the Civil Rights Restoration Act are a lot more onerous than the Solomon Amdt.
- We are at war, and probably for the first time, JAG is playing a big part in it.

But as noted, my views on the subject could have been predicted.

I would love though to hear the oral arguments though. If you get a link to a transcript, could you post it. Thanks.

SarahWeddington said...


They had a moot court of this at George Mason Law School a few weeks back with Linda Greenhouse, Stuart Taylor, Dahlia Lithwick, and a 6 other leftwing legal pundits and the result was a unanimous reversal of the 3rd Circuit and a victory for Rumsfeld.

It'll be interesting to see what happens. I tend to agree with teh above poster. To me, for FAIR to prevail, the SC would have to find the don't ask don't tell policy unconstitutional and discriminatory, which they obviously won't do. As long as the Military is allowed to restrict gays, they can't be held liable for it in a nother context.

Also, it would seem to me that the ultimate party being discriminatory in any case would be the US Gov't, not the military and thus if FAIR really wanted to prevail they'd have to have barred ALL gov't recruiters and not just military since the military is just one part of the gov't.

Anyway, you never know with this SC(AMK seems to be a pro gay swing vote), but I'd expect the 3rd Circuit to be reversed

Chuck Williams said...

Can a person actually believe that a university endorses "Don't Ask, Don't Tell", simply because the military is actively recruiting on a campus? When legal groups, either anti-abortion, or pro-choice recruit at a campus, is the university actively supporting either view? In Board of Education of Westside Community Schools v. Mergens, the Supreme Court held that "students are mature enough and are likely to understand that a school does not endorse or support .... speech that it merely permits on a nondiscriminatory basis."