December 6, 2005

Today's the oral argument in Rumsfeld v. FAIR.

The NYT reports:
"This case is not about whether military recruiters will be barred at the campus gates," [Joshua Rosenkranz, the attorney for FAIR] said. "Congress had a law on the books that guaranteed entry to campus. But that was not what Congress really wanted, so it passed a new law.

"What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message."...

But Chief Justice John G. Roberts Jr. sounded skeptical at one point. The Solomon Amendment, he said, "doesn't insist that you do anything."
That's an awfully skimpy story, padded with the info that the Solomon who gave his name to the law was Representative Gerald B. H. Solomon, "a conservative Republican from Glens Falls, N.Y., who served more than eight years in the Marines and successfully pushed to deny federal student aid to men who failed to register for the draft" and who "challenged Representative Patrick Kennedy, Democrat of Rhode Island, to 'step outside' to settle a disagreement over a proposed assault weapons ban, which Mr. Solomon opposed." Isn't it always relevant that some old conservative was a cranky bastard?

Here's a little more quoting from the oral argument, from FOXNews:
An impatient Justice Sandra Day O'Connor interrupted Rosenkranz, reminding him that "the government takes the position that the law school is entirely free to convey its message to everyone who comes. So how is the message affected in that environment?"

She added that the law school can tell "every student who enters the room” that they find the policy immoral.

But, Rosenkranz replied that when the students enter the room they are receiving dueling ideas. "The answer of the students is we don’t believe you. We read your message as being there are two tiers ...," he said.
Dueling ideas? Aren't law students especially good at decoding conflicting ideas? Yes, but the point is that by having to provide the facilities, the law schools are being forced to express a second idea that they don't agree with, that conflicts with the thing they want to say.
"The reason they don’t believe you," Roberts said, cutting the attorney off, "is because you’re willing to take the money. What you’re saying is, 'This is a message we believe in strongly, but we don’t believe in it to the tune of $100 million.'"
In this view, the law schools are not really even forced to contradict themselves. The message they send is twofold, but both things are true: We oppose discrimination based on sexual orientation, but not enough to give up $100 million. You're not forced to say anything you don't believe, just motivated to do something, and anyone watching what you do can draw the inference.
"Nobody thinks the law school is speaking through those employers that come onto its campus for recruitment. Everybody knows those are the employers. Nobody thinks the law school believes everything the employers are doing or saying," Roberts said.
This is the government's strongest argument, isn't it? The schools are really trying to control what messages the students receive and are not really suffering from having it seem as though they are expressing that message. The law schools' rejection of the military's message is, in fact, one of their best known opinions. The military's forced entry into a school's territory amplifies a school's message of opposition to the "don't ask, don't tell" policy.

And, moreover, this lawsuit has amplified that message. The law schools have used this litigation to shine a spotlight on the federal government's harsh use of overwhelming power, power that the Court will almost surely uphold.

UPDATE: Dahlia Lithwick has lots of quotes from the argument, including this indicating that Justice Breyer will side with the government:
Breyer telegraphs his vote when he says that the remedy to bad speech "is not less speech. It's more speech." Breyer adds, "I can't find anywhere in the record where a student believes this speech is the school's. I can't even find a recruiter who told a student they can't join the military if they're gay."
Dahlia notes that at one point, it's the liberal Justices who are beating on FAIR's lawyer. (Only Justice Souter seems to support him.) She concludes: "You want the truth? You can't handle the truth. The law schools have no case."

ANOTHER UPDATE: Here's Linda Greenhouse's description of the "lopsided argument during which the justices appeared strongly inclined to uphold [the] federal law":
[T]he law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.

"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."


P_J said...

Now batting for Sippican:

He who pays the piper calls the tune.

Unknown said...

But Congress can't force it's way onto a Quaker's campus that might be pacifist. Just onto a campus that has an anti-discrimination clause.

The government can't force an institution to stop being anti-gay (Boy Scouts). But they can stop an institution from being pro-gay.

Yup - sounds consistent to me. If you agree that gay people are evil.

Chris said...

downtownlad - In fact Congress could "force" Quakers to allow military onto their campus. All they have to do is say "we'll give you $100 million dollars, but in order to get it you have to allow the military to recruit"
This would bring establishment questions into play, but would otherwise be perfectly legal.

Unknown said...

And what law would that be smilerz? It's not the Solomon Amendment.

Alexander Ignatiev said...

Actually, religiously pacifist institutions are exempt from the Solomon Amendment.

Otherwise, the power of the purse could be used to condition the money's acceptance.

Chris said...

It's a hypothetical law. I would have been more precise by replacing "Congress coudl say" with "Congress could pass a law." It wouldn't be unconstitutional

Simon said...

I think Hans Bader said it best today at SCOTUSblog, and I hope he won't mind if I reproduce a large chunk of his comment here:

"The Solomon Amendment can't be invalidated without calling into question longstanding federal civil rights statutes enacted under the spending clause.

Requiring schools to tolerate military recruiters on the same basis as other recruiters, for a brief visit to campus, is a lot less of a burden on a public college's autonomy than requiring them not to discriminate on the basis of religion in admissions -- something the 1964 Civil Rights Act forbids and allows the attorney general to sue over (42 USC 2000c, I think) -- especially since an admitted student (say, an Evangelical Christian whose religion excludes gays and lesbians) is present on campus for four years, not just the one day that a military recruiter is present.

Yet no one questions the ability of Congress, through civil-rights spending-clause statutes, to limit colleges' discretion over their student bodies.

It's easy to sympathize with qualified gay students denied the opportunity to try out to be JAGs in the military. But the military doesn't just discriminate based on sexual orientation -- it also, for better reasons, considers the age and physical abilities of its applicants -- something that law school non-discrimination policies would forbid, since they cover not only sexual orientation but also age and physical disability. Age discrimination and disability discrimination are generally unwarranted, but the military is a special case.

Allowing colleges to exclude the military because it discriminates would let them exclude the military forever, even if it drops its ban on gays, since the military necessarily takes into account factors like age that would be impermissible under a law school's own nondiscrimination policy.

That would serve as a pretext for anti-military measures by colleges that are really interested in thwarting American foreign policy, rather than advancing civil rights.

Absolutely right. This is an easy case.

nunzio said...

Is there any doubt that, even without the Solomon Amendment conditions on money, the gov't could require access to students for recruiting purposes under Congress' power to raise, support, and maintain a military?

This is a very weak compelled speech/forced association argument. The only reason the SC took this case is b/c the Third Circuit panel got this so wrong.

Anonymous said...

"overwhelming power, power that the Court will almost surely uphold."

That was the best, most hopeful, part of this post!

Unknown said...

Is there any doubt that, even without the Solomon Amendment conditions on money, the gov't could require access to students for recruiting purposes under Congress' power to raise, support, and maintain a military?

Yeah - it's called a draft. Which nobody is stopping the government from starting.

This really has nothing to do with military readiness. It has everything with showing gay students that not only does the government hate them, but that their universities hate them too.

At least that's the message that I would get as a gay student. The aim of this amendment was to show gay people that they are hated in this country and that they are second class citizens. That they are scum.

And that message is about to be reinforced loud and clear by the Supreme Court. Well done.

Anonymous said...


What is your position on Solomon? Should it be upheld or not? You post indicates you think it will, but do you think it should?

I graduated from a private religious (So. Baptist) college in Mississippi that years earlier was one of the first schools in Mississippi to intergrate. Someone familar with leadership at the time told me it had more to do with the desire to receive federal dollars than reversing the immorality of segregation. If true, in that case, federal dollars promoted moral good by carrot (and enforced by stick with the Civil Rights Act).

nunzio said...


Who cares what messages the Supreme Court reinforces or not. Are people's self-identities so weak and their personality so underdeveloped that they care what the Supreme Court thinks?

The Supreme Court is full of shit, the military is full of shit, and these universities are full of shit. Welcome to the world.

Simon said...

The text of the solomon amendment:

Funny, I don't see anything in here about "show[ing] gay people that they are hated in this country and that they are second class citizens. That they are scum." I see a whole bunch of stuff about requiring colleges recieving Federal money to permit military recruiters to come on campus. Maybe you had a different amendment in mind? A, um, later revision, perhaps?

me said...

While I disagree with the Federal Government's method of using funds (such as highway funds to manipulate drinking ages), the bottom line is that the Universities can either take the money or refuse the money.

I agree that no one of sound body and mind imputes the military policy onto the University.

Unknown said...

Who cares what messages the Supreme Court reinforces or not. Are people's self-identities so weak and their personality so underdeveloped that they care what the Supreme Court thinks?

Hmmm. Let's see. A kid realizes he's gay and tell his parents. His parents proceed to kick him out of the house and then say that they never want to see him again.

The kid's Church said that as a gay man he is no longer welcome to receive communion, so the kid leaves the Church.

The kid then gets a bunch of student loans and is able to attend college, stretched to the hilt financially. He then finds out that his college is now revoking the non-discrimination clause, because they care more about getting federal money than they do about promoting gay rights.

His state then passes a gay amendment that makes gay people second-class citizens.

Um - yeah - I think this kid's self-identity is pretty much shot to hell right now. How many times can people tell you that they hate you and treat you like shit because of something you can't control, before it actually starts to have an impact on your state of mind?

Unknown said...

Simon - Why does the amendment give a pass to religious institutions? why doesn't the amendment apply to those schools that don't allow recruiters on campus? The amendment is solely targeted at those colleges that have anti-discrimination clauses.

Wade Garrett said...

I think the U.S. Army should be ashamed of Don't Ask Don't Tell, and threatening to drop the hammer on Universities is pretty silly. Over the past ten years, the U.S. Army has dishonorably discharged something like 50 translators fluent in Arabic and Farsi, for no other reason than that they were gay. What's the greater threat to national secutiry -- boys kissing, or Islamic extremists? The "necessary to maintain unit cohesion" argument doesn't work here, because these were desk workers assigned to bases far from the front lines, far from the fox holes. All they did was translate intercepts -- until they couldn't anymore.

I hope that FAIR wins this case, but I don't think they have much of a chance. Congress can attach almost any strings to its spending power, and it fights dirty - depriving the entire University of hundreds of millions of dollars because its law school won't allow military recruiters on campus is bad public policy to me, but then it came from Gerald Solomon, so I can't say I'm surprised.

Having grown up in upstate New York, I can say that Representative Solomon was a really old-fashioned politician, who seems more concerned at sticking it to people who disagree with him than in compromising with the other side. He proposed amendments to ban flag burning and allow school prayer. He was much given to facile shows of bravado, such as calling Democrats appeasers, challenging Representative Patrick Kennedy to a fight, and relentlessly baiting the U.N. Granted, the U.N. doesn't have very many fans, but beating up somebody who can't fight back doesn't make you a bigger man. Basically, I could never stand the guy, and I reflexively oppose almost all of his ideas on the merits.

Anonymous said...

Without addressing the merits of issue, it seems to me that there are two options available to those who oppose the Solomon Amendment: (1) Turn down the money and stand up for your principles (a practical option for many leading institutions with large endowments like Harvard, Yale, Columbia, etc.); or (2) Engage the political process (e.g., win elections) and have the Solomon Amendment repealed.

The third option is to get the Supreme Court to rule in your favor, but since elections have consequences and the presidential election winner gets to name the Justices, refer back to point number 2 above.

Simon said...

"Why does the amendment give a pass to religious institutions? why doesn't the amendment apply to those schools that don't allow recruiters on campus?"

The answer to your question is right there in the text that I linked to.

10 U.S.C. §983(c)(2): "[An institution is exempt if] the institution of higher education involved has a longstanding policy of pacifism based on historical religious affiliation."

Wade Garrett said...

The reason they made an exemption for religious schools is that their express aim was to coerce schools who refused to allow military recruiters specifically in response to the Don't Ask, Don't Tell policy to let military recruiters on campus.

That is, its okay if you never let us on campus in the first place, but if you let us on campus until we came up with Don't Ask, Don't Tell, then your name is Mudd.

Anonymous said...


Your point seems to be that your position is right and is beyond discussion or argument; therefore recruiters should be banned from campus.

Those representatives and senators who voted to adopt the Solomon Amendment apparently disagree with your position.

In a marketplace of ideas, a debate on the issues would seem to be the way to proceed. To withdraw from the debate would be counterproductive.

Unknown said...

Just think about this policy. Supposedly the government has an interest in attracting LAWYERS to the military.


Not fighting men. Lawyers. So at a recruitment fair in five years time, some kid is going to ask Yale Recruitment, what jobs are available. And they will say Firm A, Firm B, and the military. And then Yale will say "Oh, we're sorry Jim, we didn't know you're gay. Well you're not allowed to apply for a law position in the military. Gays are forbidden from applying."

Yup - that kid's going to feel real good when they say that.

John A said...

Does anyone have stats on how many of these law schools have organized groups of LDS, Muslim, or other organizations that are quite openly anti-gay? Or Roman Catholics, Baptists, whatever ...

Yeah, I'm not fond of the linkage of money and access, or of the "If you say you're gay, you're out of here" policies public or private. But Solomon aside, contract terms are not new even if you just look at linking money for Universities with the military: it goes back at the least to the "Land Grant" schools (such as the one I attended in the early Sixties, U of Rhode Island), which are [at least then] obliged to have at least one ROTC program.

And "free speech?" Nothing is stopping these schools from putting a recruiter for gay night-club bartenders next to the booth for the Marines. No, it's just more "My speech must be free because the Constitution says so, but you shut up!"

Bruce Hayden said...

Another view of the oral arguments can be found at SCOTUSblog. Its author seems to believe that the Supreme Court will reverse, with only maybe Justices Ginsberg and Souter in dissent.

Ann Althouse said...

"Ann, What is your position on Solomon?"

I have a complex set of beliefs:

1. I'm opposed to discrimination based on sexual orientation, and I don't like the "don't ask, don't tell" policy.

2. I'm aware of my lack of understanding of the military and therefore tolerant of its ongoing process of working toward supporting the inclusion of gays in the military, which I'm virtually certain will happen in time.

3. I don't think the military should be excluded from recruitment, and in fact, I think people who support the inclusion of gays in the military ought to seek to become insiders who can affect policy.

4. I think law schools have every right to express their opinion about the military's policy but that the Solomon Amendment does not interfere with that right. Thus, the free speech and free association questions raised in this case should be decided against FAIR.

5. But I think the Solomon Amendment's approach of threatening to entire University with loss of federal funds is heavy-handed and excessive.

6. I'd like to see the constitutional law doctrine about allowing conditions on spending be restricted, but the argument in this case isn't about that.

7. Even if the spending power doctrine were restricted, the Solomon Amendment would be supported by other constitutional power (permitting Congress to raise armies).

Unknown said...

Does anyone have stats on how many of these law schools have organized groups of LDS, Muslim, or other organizations that are quite openly anti-gay? Or Roman Catholics, Baptists, whatever ...

I'm quite certain that these schools have policies that clubs must be open to ALL students or they don't receive school funding. But Christians are now suing private schools saying that a university should not be able to stop a club from discriminating against gay people.

As I've stated. The government can't force you to be nice to gay people. But it can force you to be mean to them.

I expect the next step to be a ban on funding to any school that accepts gay people.

Wade Garrett said...

Ann - I'm glad you mentioned the power to raise armies; one reason I support FAIR in this case is that it seems to me as if they can't help but lose, but they're brining the case anyway to call attention to the issue. Arguably, that's not what the courts are for, but at least they're putting their money where their mouth is.

I think the policy of joining a group to try to change it from the inside is a good one; more liberals should join the NRA, for instance, and more conservatives should join the ACLU. However, its hard to change the military from the inside for many reasons. First and foremost, they throw you out if you're gay. That's a big one. Secondly, it is the most bureaucratic institution in the country, and it can only be changed by a direct order from somebody at the top. Thirdly, and this is related to #2; the people at the top didn't work their way up; they were appointed by the President.

The military says it will change its policy when the army is ready, but that won't happen until they're ordered to -- they said the same about integration, and that took an executive order to get done.

Tom T. said...

Despite the lip service paid to gay rights by the large law firms that are permitted to recruit at these schools, the actual level of gay-friendliness for associates varies widely, and the number of openly gay attorneys elevated to partner is tiny. It's quiet discrimination whose effects aren't much different from "don't ask don't tell." Ironically, one of the more gay-friendly legal employers is the Justice Department.

Simon said...

There's something weird about all this. It seems to me that what people are really upset about it don't ask don't tell, right? But that isn't a "military policy," it's a statutory instrument, passed by Congress, and formally codified as 10 U.S.C. §654. So if people are mad about DADT, why take it out on the military? They can't change it. Rather, a more consistent policy would be to refuse access to your premises to any member of Congress who is not on record as opposing (or, to taste, who hasn't done enough to repeal) DADT.

Unknown said...

Tom T. - At least the law firms have to publish the number of gay lawyers that have on staff.

I noticed that Harriet Miers' Firm, a firm with over 400 people, had zero gay people working for them. She was managing partner let's not forget, so she sets the policy.

What a shock.

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."

Unknown said...

What a great idea Simon. Except if law schools start doing that, I'm sure Congress would just pass a new amendment.

This is not about military readiness. It's about silencing dissent.

XWL said...

I can't remember where I heard or read about the Title IX implications of the case so if I mangled the argument I'm sure someone else can point to the source I'm possibly mischaracterizing.

Title IX is enforced the same way the Solomon Amendment is enforced, through the power of the purse strings.

If the SCOTUS sides with the law schools and does so in a broad manner to suggest that the federal government can't enforce a discriminatory policy through how it doles out money then it's also possible many anti-discrimination edicts might suddenly become utterly toothless given that the power of the purse is what's being called into question, not the specific policy. So a school could claim that they might spend 95% of their moneys on their men's athletic programs and they agree that it's discriminatory, but the federal government should only defund the portion of federal money that goes specifically towards athletics and leave the rest of the institution alone.

So if these schools say goodbye to military recruiters they may also be saying goodbye to the goals of equal funding towards women athletes in schools, 21 year old drinking age across most of the country and other federal mandates that are enforced through the coercive threat of pulling federal funds from massive programs for narrow infractions.

Unknown said...

So if these schools say goodbye to military recruiters they may also be saying goodbye to the goals of equal funding towards women athletes in schools, 21 year old drinking age across most of the country and other federal mandates that are enforced through the coercive threat of pulling federal funds from massive programs for narrow infractions.

Good riddance. And how does anyone honestly think Scalia would rule on those items. I'm sure he'd support the states and schools on every single one of them. Does anyone really think Scalia would find Title IX Constitutional if it were before the Court today? Come on.

But when gay people are involved - well then Scalia thinks they can go take a hike.

Unknown said...

Even if the spending power doctrine were restricted, the Solomon Amendment would be supported by other constitutional power (permitting Congress to raise armies).

Why Ann? Nobody is stopping the government from instituting a draft.

Ann Althouse said...

Downtownlad: "Why Ann? Nobody is stopping the government from instituting a draft."

Your question assumes that Congress doesn't have its choice of means in pursuing its authorized goals. That's just flat wrong. Read McCulloch v. Maryland. And even if Congress didn't have a choice of goals, why would you think the more extreme thing would be permitted before the less extreme thing? I can't see what your argument even is, but it's certainly wrong.

Wade Garrett said...

One issue I haven't seen discussed much is the false choice that Chief Justice Roberts and others have set up: that the law schools are free do bar military employers, but in order to do so they must give up their Federal funds. Surely, the law schools are principled, but if they're not principled enough to forego $100 million dollars, then they have to live with the strings Congress has attached to that money.

I've attended two universities in my life; Yale and the University of Wisconsin. Those two schools both say that they stand to lose $500 million dollars apiece. So for most large public and elite private schools, it is much more than $100 million dollars, but that's not really the point.

Yale and the University of Wisconsin don't have that choice. Even if they refuse the federal grants and disbursements, as long as ANY of their students have ANY federal student loans, then, as far as Congress and the courts are concerned, they are accepting federal money and must abide by Congress' restrictions.

Unknown said...

Of course they have a choice. I'm just implying that the government has other options of getting people to join the military - so why do we have to violate someone's right of free association in order to raise armies?

They can advertise. They can send e-mails. They can meet with respective recruits off campus. Heck - they can even meet with the recruits on-campus, but they would just have to arrange the interviews themselves without the law school's help.

I fail to see how their power to raise armies is unconstitutionally hindered by this act, when so many alternatives exist.

Nevermind that we all know this amendment has absolutely nothing to do with raising armies. So far they've recruited a whopping ZERO people from these law schools.

Ann Althouse said...

Downtownlad: Now you're talking about my point 4, but you objected to my point 6, which had nothing to do with the affirmative rights that limit the powers of Congress.

Unknown said...

But Ann, the government is forcing the law schools to take a position that they disagree with.

They don't want to just be allowed on campus. They want to career offices to arrange the interviews. They want the career office to distribute government propaganda. The military already has access to all of these e-mails, so why couldn't they do these things themselves? Why are they forcing the career offices to take actions that is against school policy? It seems like the only reason for this is that the government is trying to humiliate the law schools into taking a position that they so vehemently disagree with.

I guess we disagree on #4.

Ann Althouse said...

Yeah, that's the point. The argument is at #4. That's what the case is about.

Ann Althouse said...

I agree with you that they didn't have to be so aggressive in imposing themselves on the schools. I just don't think it's much of a free speech argument, and it's pretty clear the Court doesn't either. I have a problem with defining free speech rights to include the rights of the nonspeaker to limit the speaker's freedom.

Simon said...

"This is not about military readiness. It's about silencing dissent."

How on Earth is it "silencing dissent"? Colleges remain free to reject military recruiters, provided that they also reject money from Congress. Now, keep in mind that Don't Ask Don't Tell isn't the military's policy, it is a policy set by the Congress. So what you're really saying, what this case is really about, is that you hate Don't Ask Don't Tell, but you're perfectly happy to take the money from the people behind it. That's the crux of the matter: by blaming the military for this policy, over which they have zero control, you get to take the money AND complain about the policy without feling like hypocrites.

Simon said...

"why do we have to violate someone's right of free association in order to raise armies?"

Wait, wait. Having a military recruiter on campus violates your right of free association? What case supports that proposition? If you and I live in the same city, or attend the same college, we are not "associating" with one another; indeed, if I walk past you in the street and you accidentally bump into me - actual, physical contact! - we are still not "associated." Presumably, your right to "free association" is not violated when you walk past an army recruitment office in a mall. So where does the right to free association come into this?

Unknown said...

Simon - It's the taxpayers money, not the government's. You should do some research on the "unconstitutional conditions doctrine".

I don't think this decision will be decided on funding. It will be decided on whether or not it's speech.

I have a problem with defining free speech rights to include the rights of the nonspeaker to limit the speaker's freedom.

Ann - But how is that any different than Dale? Or even with Hurley? Wasn't Hurley's freedom to speak being infringed on?

I actually think Hurley and Dale were correctly decided. I think the government is forcing an association here, and that worries me. I don't see how the speech issue is any different than Dale. If Dale were hired by the Boy Scouts, that wouldn't prevent the Boy Scouts from having press releases, etc. about how they disagree with homosexuality. Just the fact that Dale would have been a Boy Scout member, however, would have diluted the Boy Scout's message (since Dale was gay). And the law school message is certainly being diluted here as well.

Simon said...

In order to raise an unconstitutional conditions problem, a constitutional right has to be implicated. Which right is the government asking colleges to waive? Surely you're not really asking us to believe the propaganda piece that this actually is a free association question. As can be exhaustively demonstrated, merely allowing a person onto college campus is hardly "associating" that person with the college, and indeed, it's not entirely clear to me why taking money from Congress wouldn't, by the same logic, "associating" the college with Congress (the latter being the institution which actually maintains this policy you guys claim to object to).

Unknown said...

As can be exhaustively demonstrated, merely allowing a person onto college campus is hardly "associating" that person with the college.

Forcing the career center to deal with the military, arrange interviews for them, send e-mails, print their recruiting info. If that's not association, I don't know what is.

What if the government forced a religious school to allow an ACLU to recruit on campus? You don't think that would be offensive to the college? That's not forced association?

PatCA said...

"He then finds out that his college is now revoking the non-discrimination clause, because they care more about getting federal money than they do about promoting gay rights.

His state then passes a gay amendment that makes gay people second-class citizens."

That's a huge and histrionic leap.

I'm not a lawyer, but I'm curious what you mean by "the law school." Does every person in the law school administration and student body want to keep recruiters out but the federal money in? I don't know why your opinions should be protected and others not.

Ann is right about her No. 4. If recruiters were allowed on campus, it would not intefere with the ability of their opponents to make their case. In fact, their presence and their inclusion in the debate might well enhance it.

Anonymous said...

A lot of discussion has been around rejecting military recruiting because of the "don't ask, don't tell" policy, doesn't the college military ban predate that policy at a lot of these universities, like back to the Vietnam era?

I'm a relative "young-un" (born in 1971) so I don't know this first hand. But I thought I read this somewhere. If I'm wrong, someone please let me know.

I don't know why this would matter, but my thinking is that a lot of these universities (if my understanding is correct) refuse military recruiting more as a reaction/rejection of Vietnam than the don't ask/don't tell policy. And that would follow more along the line of Ann's point--the power of the government to raise armies.

Unknown said...

I don't know why this would matter, but my thinking is that a lot of these universities (if my understanding is correct) refuse military recruiting more as a reaction/rejection of Vietnam than the don't ask/don't tell policy.

It's irrelevant. They can have whatever reason they want to. That's why it's free speech.

In fact, the Solomon Amendment specifically says that it's ok for religious institutions to ban the military for pacifist reasons. So the government is oppressing some speech (anti-discrimination clauses) but not others (religious pacifists).

SarahWeddington said...


Under your view of the draft, isn't the draft unconstitutional? After all, the draft discriminates against heterosexuals and men AND violates rights of free speech, free exercise of religion, and free association.

Could I challenge the constitutionality of the draft on the same grounds that FAIR is challenging the Solomon Amendment? Should I prevail?

As a heterosexual person, and a male, I am FORCED to submit to the draft. Homosexuals and women are BARRED and EXEMPT from the draft(indeed there's a new story about how Jimi Hendrix evaded the draft by pretending to be gay and allowing himself to be caught masturbating to gay pornography in a bathroom). Doesn't that mean that the draft violates the equal protection clause and is unconstitutional? Surely, the reverse would never be allowed by the SC. A law that leads to effective servitude and death that only affected women. I mean, the SC said that VMI must admit women, but it's ok for the Military to ban them from the draft. Why as a man should I have to go to Nam and die while my a woman could stay home and party?

Also, being drafted severely limits your rights to free speech, free exercise, freedom of association, and freedom of petition of grievances. Arguably 4th, and 8th amendment issues can be raised as well.

If anything, gays should feel fortunate. Gays have a get out of jail free card when it comes to the draft.

If Congress and the miltary can FORCE heterosexuals to be drafted and sentenced to sure death while EXEMPTING homosexuals from it, sureley they can FORCE the requirements at issue in this case. And as the Mergens case and others show, the ability of law school students to distinguish between content and viewpoint based speech is beyond all shadow of doubt.

What happened to the Grutter case where the SC said that diversity is a compelling interest for law schools(that receive govt money) to discriminate against whites. Are whites any less desrving of protection than gays? Are you against Grutter? Is FAIR? If diversity is so important, surely including the military adds to the diversity of the law school. I guess diversity is only preferable insofar as it's just a diverse group tha AGREES with you. Diversity oworks only as long as it doesn't include anything I disagree with. To be consistent, FAIR should also support the reversal of Bakke and Grutter, not to mention Metro broadcasting. Do they?

I further agree with Simon. For FAIR to be consistent they'd hae to refuse ALL government recruiters or representives as DADT is ultimately subject to congressional authority, not military authority. But of course FAIR won't do that. They use your view of a "draft or else" argument. Ann was right about McCulloch. Congress has great deference when it comes to the means to pursue constitutional purposes. Finding for FAIR would effectively overrule McCulloch and say that Congressional deference is now subject to the personal views of the people. That just won't happen. For if FAIR can challenge a law on gay-rights grounds(which isn't even an accepted heightened scrutiny classification)then anyone can get a law struck on any pretext whatsoever. As the SC ably pointed out in the Reynolds case of 1878, to surrender the Constitution to the personal predelictions or views of any group that may happen to feel a certain way about an issue is to strip the Constitution of any real meaning whatsoever. Or, to paraphrase Justice Kennedy in Stenberg, "A law that depends on the "good faith" rights of sppech and association of any interest group that brings a claim is no law at all". It's anarchy.

The opinion for this case should take freely from Chief Justice Marshall in McCulloch, in which he wrote the following:

"The power being given(to raise and support armies, declare and conduct war), it is in the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed their intention to clog and embarrass its execution by withholding the most appropriate means...

But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire in to the degrees of its necessity, WOULD BE TO PASS THE LINE WHICH CIRCUMSCRIBES the JUDICIAL DEPARTMENT, and to tread on legislative ground. THIS COURT DISCLAIMS ALL PRETENSIONS TO SUCH A POWER"


Ross said...

Professor Althouse,

You write "cranky bastard" as if that's a bad thing.

Peter Hoh said...

I listened to the audio segments played on the News Hour. I thought Roberts got real close to asking the FAIR lawyer if he thought that students were stupid.

SarahWeddington said...

In fact, the Mergens case controls this completely in my view. Interestingly, Roberts was on the SG's brief in that case. I think we know what his views are. Here's O'Connor's majority that states conclusively FAIR's free speech/association argument is hogwash:

In Widmar v. Vincent, supra, we invalidated, on free speech grounds, a state university regulation that prohibited

Page 496 U.S. 226, 235

student use of school facilities "`for purposes of religious worship or religious teaching.'" Id., at 265. In doing so, we held that an "equal access" policy would not violate the Establishment Clause under our decision in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). In particular, we held that such a policy would have a secular purpose, would not have the primary effect of advancing religion, and would not result in excessive entanglement between government and religion. Widmar, 454 U.S., at 271-274. We noted, however, that "[u]niversity students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion." Id., at 274, n. 14.

Note that last sentence. This isn't even university students. It's an extremely intelligent, selective group of law school students. Any claims by FAIR that they won't be able to distinguish between the Law School's neutrality toward sexual orientaation and the miltary's is baseless

Bruce Hayden said...

Some random thoughts.

SarahWeddington - you mention Equal Protection, but should note that that is in the 14th Amdt., and not the 5th Amdt., and is thus applicable to only the states, and not the federal govt.

The obvious answer to why the draft is legal is that it is based on the war making capabilities. I think that it was Scalia asked why the U.S. wasn't using this as their argument today, and apparently the answer was that the Spending Clause argument was more clear cut.

Personally, having had the draft hanging over my head throughout my college years, and waiting for my induction notice after graduation pointed out to me the unfairness of life. Why should women be exempt? Why shouldn't they have faced what we men faced? A simple accident of genetics excempted half of the population from this burden. Luckily for me, we were pulling out of Vietnam at that time, and I didn't have to go - but I did know a lot of guys who were drafted, and some who didn't return.

Finally, I always wondered about the standing of the law schools in the first place. As they were invariably part of large universities (otherwise, they wouldn't have sued), but as such, were not the legal entities involved. The legal entities impacted were the universities themselves, which didn't appear to be that concerned - they just told the law schools to conform.

Which brings me to one of the later points, which is that the law school faculty at these schools purported to speak for the law schools themselves, which is obviously inaccurate, since invariably, at least some of the students would be interested, else why bother sending JAG recruiters in the first place.

And thus, possibly one of the points made today by one of the justices, which is that this isn't really about free association, etc., since it is trivial for those suing to avoid the recruiters. And it isn't about free speech, since the attempt is to limit speech, not to expand it.

Also, the point was made about Title IX. This is possibly the 900 lb. gorilla standing in the corner. They have already affirmed withholding money under Title IX. The Solomon Amdt. also implicates the War Making power, and thus, it would be far easier to reject Title IX and affirm Solomon, than the other way around.

I am still going with the SCOTUSblog prediction of 7-2, with Ginsberg being liberal enough that she actually buys into this nonsense.

Personally, I agree almost 100 percent with Ann above. I don't like the withholding of funds at the university level, but find the case nearly frivilous - except, of course, that the 3rd Circuit actually held in favor of the law school profs and SCOTUS took the case to reverse that court.

Bruce Hayden said...

One of the reasons that JAG is so important to the military right now is that they are playing a big part in this war. Instead of merely prosecuting or defending soldiers, et al., after the fact, they are acting proactively, being apparently involved in lower level tactical decisions, and are constantly tweaking the rules of engagement.

Indeed, this has been one of the complaints by the soldiers, et al. fighting the war, that the lawyers (i.e. JAG) are constantly looking over their shoulders.

Michael Stiber said...

There's another aspect to this, which is neither legal nor a matter that concerns the Supreme Court (as far as I can tell), but which is very relevant within the universities. While Law Schools are in principle free to decide to allow military recruiters or not, they receive only a vanishingly small amount of direct federal money. The bulk of federal dollars go to medical and engineering schools and science departments. In effect, the law represents collective punishment (of an entire university for the decisions of one academic unit).

Though it may not be a legal matter, the outcome is is undesirable from an institutional point of view: Law Schools will, unlike most other similar academic units, have their student placement offices "meddled with" by upper administration.

Bruce Hayden said...

Let me also add that there are invariably some law school students in every student body who are interested in joining.

A friend of mine who recently retired as a LTC in the reserves, and who taught law throughout his time in the military, did a brisk business recruiting law students for JAG. He got a signing bonus for each student he signed up, and celebrated when another prof retired - who was a full COL and had been competing for students.

My problem was that he kept soliciting me, and I had to keep reminding him that I was nearing 40, and the cutoff at the time was 35. But he made JAG look quite attractive.

Bruce Hayden said...

Michael Stiber

Very true. However, it is unlikely that law schools will be cut adrift here, as many of them are reasonably profitable, despite onerous and costly ABA requirements.

But then, can't pretty much the same argument be made for Title IX? After all, for example, the schools getting the bulk of the money tend to have minimal involvement with school sports.

Al Maviva said...

I think this entire debate has little to do with gay rights and much to do with a generally anti-military sentiment in law school administrations and among some of the students. When I was in law school, my dean (one of the leaders of the fight against Solomon) was discussing how when the Solomon fight was won, the next fight was to take on the height/weight standards of the military as discriminatory, perhaps under the ADA or Rehab Act, and how we needed more women in combat roles. Y'know, 'cuz fat Marines are just as good as charging up a hill under fire as thin ones and women are just as strong as men, biology should never be destiny, etc. So I'm really skeptical about claims to the moral highground here made by the gay rights folks. It's a nice flag to run around under, but I don't think it's the purpose underlying the fight, which is to attack the military's carefully developed culture.

And, before I get flamed, I don't have a problem with gays in the military, I served with some gays who were decent enough soldiers, but I understand the problems that introducing a sexual dynamic into a stressful 24/7 environment can create.

SarahWeddington said...

Bruce Hayden,

Didn't Bolling v Sharpe incorporate the EPC to the federal gov't through the 14th?

Also as a matter of pure logic, I find it difficult to believe that the federal gov't is not subject to the EPC. The EPC applies to ALL citizens in EVERY state. Since anyone who's a citizen of a state is DE JURE a citizen of the US, I think the P and I caluse of the 14th amendment would apply the EPC if the in any event

It's impossible to believe that given the background of the 14th amendment, the history of the Civil War, and subsequent SC decisions, that the Constitution prohibits the states from discriminating yet allows the federal gov't to do so. The Constitution and Bill of Rights were designed to LIMIT the fedral gov'ts powers and it belies reason to think that such an awesome and invidious power would remain reseved to the feds while the people reserve it in relation to the states.

And regardless of whther or not my view os correct, isn't it beyond settled at SCOTUS the EPC does apply to the federal governmnet?

SarahWeddington said...

Al Maviva,

Great points.

There is, in fact, a perfectly reasonable explanation for the miltary's policy on homosexuals.

The reason is this. The military recognizes that effective unit cohesion and morale is a sina qua non of the armed forces. Years of experience have proven beyond all reasonable doubt that there certain elements that when present render military units ineffective.

The elements include but are not limited to disease, famine, physical malady, injury, handicap, mental clarity, sense of duty, sense of allegiance.

An additional element is that of sexual desire and sexuality.(realize I refer to sexual desire in the abstract, ie both hetero and homosexual desire, this in no way is intended to bash gays).

That element of sexual desire is why women have been separated from men in the military(specifically combat units). Some will say, no, it's because of differences in strength and other physical features.

This is not so. For a certain female may posess greater endurance, strength, or other attributes than a given male.

Indeed many women are superior to men when it comes to flexibility and endurance and there smallker stature can actually preferable for certain military mission involving the need for stealth and surprise or to operate in confined areas. The differences in physicality are not inviolable and inexorable.

What is absolute, however, is the conflict in sexual desire that males feel for females and vice versa and all the implications that has in terms of behavior, conscience, cohesion, morale and unit performance.

The implications of sexual desire and its impact on the human animal and human behavior are so innate and omnipresent that its effect and impact on a person's behavior are undeniable.

Experience, therefore, has shown that it is best to not have a situation where members of a given military unit feel sexual desire towards one another. That element of sexual desire must be wholly absent from the unit.

Given that, it is clear why the military has a policy against homosexuals. It has nothing to do with any moral or value judgment on them as citizens or human beings. It is mere recognition of an inescapable anatomical and biological truth. Homosexuals, by their very definition, feel sexual desire for their their own sex. It is a fact of life.

All military combat units are male only, for the reason I explained above, the need to remove completely the presence of sexual desire among unit members. Since the military doesn't allow females who feel sexual desire towards males it must similarly preclude males who feel sexual desire towards males.

The discrimination is based soley on the biological fact of sexual desire. It has nothing to do with a person. It's the same reason the military bars the physically handicapped, or the blind. It's because they, through no fault of their own and in now way compromising their character, are possessive of certain incurable and unremovable anatomical and biological facts and features as such that their inclusion in a given military unit renders it, in the experienced and well reasoned judgment of our military leaders, ineffective.

Again, as Michael Corleone would say "It's nothing personal, just Business". I would add that as the sexual desire element is the key factor it would be my view that in any unit where the military permits both male and female participation I think they should also allow homosexual participation.

Although a compelling argument can still be made that as the vast, vast majority of all males in the military are heterosexual and as a good number of them may have certain moral objections to homosexuals and that presence of homosexuals in the unit would cause the heterosexual males great consternation and lead to lack of morale among the unit, the need to maintain exclusion is still necessary.

Perhaps there could then be all homosexual units, or homosexual males+females units, or to have certain tasks only for homosexuals a la the Navajo codetalkers in WW2(perhaps translators could fall under this rubric).

I have no problems with the mliitary devising ways to accomodate and assimilate homosexuals in to the military. There's also a strong 1st amendment freedom of association claim on behalf of the mlitary.

You may not agree with this but I think it is a perfectly logical and reasonale defense of the military policy of exclusion, and it is one that is not based on any fundamental or intrinsic dislike or hatred of gays. It is merely one that recognizes biological and human truth, and the need for the military to confront that truth if it is to be effective in its assigned duties.

Simon said...

"SarahWeddington - you mention Equal Protection, but should note that that is in the 14th Amdt., and not the 5th Amdt., and is thus applicable to only the states, and not the federal govt."

Interesting. So you agree with me, I take it, that the court was wrong, in BOLLING v. SHARPE, 347 U.S. 497 (1954), to effectively write an equal protection clause into the Fifth Amendment, and has been wrong to uphold that ever since?

Simon said...

It isn't a matter of logic, it's a matter of text. The Fourteenth Amendment says nothing about the Federal Government, and by its own terms only applies to the actions of the state governments. Furthermore, it applies to the actions of the state governments, not to the citizens of the states, which I think forecloses your citizenship end-run.

I have a similar problem with the Court's eleventh amendment jurisprudence, discussed briefly here.

SarahWeddington said...

Perhaps, but there are a number of arguments on the other side as well and I certainly don't have the hubris to insist that I know the real truth.

In any event, it still doesn't seem like a "fair construction" to use Marshall's rule of interpretation.

I mean, let's say I'm a ctiizen of the US and of say NJ. I go to Yale. Citizenship is not distinct. As a citizen of NJ I have a right to equal protection. There are to be no differences between state and national citizens. IOW, as a citizen of the US, I do not forfeit any of the rights I enjoy as a citizen of NJ. If I have a right to X as a citizen of NJ, that right is also applied against the feds.

I think the 14th just equalizes doesn;t allow the feds to deny someone anyrights they enjoy as a citizen of a state. if you read the comments of the framers of the 14th and contemporary documents, that seems to be a reasonable view. Not that it's the right one, but certainly as plausible as any other.

I mean, at the end of the day, by denying that the 14th applied the EPC to the feds, you're basically saying that feds can discriminate to the level that existed pre-Brown. What else prohibits them from doing so? I just don't think that's tenable. And there's certainly enough textual evidence to back up a federal EPC claim. It's not as radical as say, the right to abortion on demand.

Tim said...

6:52 AM, December 07, 2005
SarahWeddington said...

"Experience, therefore, has shown that it is best to not have a situation where members of a given military unit feel sexual desire towards one another. That element of sexual desire must be wholly absent from the unit."

While I'd support that assertion within specific combat units, the military does NOT prevent men and women from serving side by side in most roles. Since they "don't" have homosexuals, you could reason that much of the military is already comprised of people who feel sexual attraction towards each other.

If your reasoning were true, then the resulting policy would be: gays allowed, but not in combat roles.

Under your logic, there should be no reason why homosexuals could not serve in units which already have mixed genders.