A unanimous Supreme Court on Monday upheld the "Solomon Amendment" that assures military recruiters they may seek to sign up students at the nation's law schools. The Court ruled that the military must be given access even though it violates the law schools' policy against facilitating discrimination against homosexuals. Moreover, the Court declared, law schools could not exclude the military even if they also excluded all other potential employers that declined to hire gays and lesbians.Chief Justice Roberts writes the opinion. There are no additional opinions. (Alito, of course, does not participate.)
As the unanimity indicates, this outcome was not at all surprising. Here's my post on the reports after the oral argument, at which point it was rather obvious that the government was going to win.
(I dread seeing all the opinion pieces that connect this case to "Brokeback Mountain" not winning the Best Picture Oscar.)
MORE: From the case:
The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment. To the extent that the Solomon Amendment incidentally affects expression, the law schools' effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.
YET MORE: I want to express my deepest thanks to Chief Justice Roberts for gathering the Justices onto one clearly written opinion. There is no blather or hedging in the prose. He has obviously taken great pains to put every sentence in plain English. He deals with all the precedents, handling most of the cases in one or two crisp sentences. You may not appreciate how beautiful this thinking and writing is, but I do, and I think generations of law students will.
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39 comments:
What is in the water at law schools that caused them to foolishly claim that preventing speech of a group they opposed was in the best interest of free speech? Normally you'd expect better reasoning skills in these institutions.
Bob: I think there was something expressive about bringing the lawsuit, and then there was just an effort to make the best arguments for the outcomes the schools (including mine) wanted. The real opposition, however, is to the military's discrimination against gay people, which really should be changed. This lawsuit did call attention to that cause, if awkwardly, and there was some point to that even if we expected to lose. There is a history to using litigation for political purposes, and even losing cases can be effective.
Wurly: I haven't read the whole opinion yet, but I'm looking forward to Robertsian crispiness!
Ann, If law schools oppose restrictions on gays then surely they would support a ban on contact from those who initiated the action--congress and the Clinton administration. The military has no ability to unilaterally declare such things.
I wonder ... if Roberts is already having an affect on the court. Just the notion that he would be writing the opinion may give pause to dissenters to go along with the law as written.
I can hope, can't I.
Ann, If law schools oppose restrictions on gays then surely they would support a ban on contact from those who initiated the action--congress and the Clinton administration. The military has no ability to unilaterally declare such things.
Exactly. If the board of directors of a company created a policy that one of its subsidiaries would not be able to hire open homosexuals, a school that banned recruiters from organizations that didn’t comply with their “anti-discrimination” policies ought to ban recruiters from the company rather than just the subsidiary – particularly when it’s the parent company that sets the policy.
This was simply a case of folks that don’t like the military using DADT as a fig leaf to keep military recruiters off campus.
This was simply a case of folks that don’t like the military using DADT as a fig leaf to keep military recruiters off campus.
Are there other branches of government that discriminate so openly against gays and lesbians? I can't think of any off the top of my head. If you can list them, I'll consider your reasoning. Until then, I'll assign the filing of this lawsuit to a token protest against the military's costly and short-sighted policy.
vw: yodyl, to which I must add lay hee hoo
Very crisp decision. If this keeps up, maybe Ann will be out of a job teaching Con law (said in jest, of course). There was almost no wandering all over the place, as we have seen in the fairly recent past. Each argument by FAIR and the 3rd circuit was taken in turn, and demolished in short order.
I think though that the thing that made the result a foregone conclusion is the repeated point that Congress could have done this directly, mandating that schools give access to JAG recruiters. Indeed, they could have just drafted the top 10% of every graduating class. The Supreme Ct. was not going to bar Congress from doing something indirectly that they could have done directly.
The military policy on homosexual activity may be short sighted or costly, but it was set by Congress, and the Court pointed that out. Yes, the military made suggestions to Congress, but in the end, Congress and the (former) president acted, and the military is only obeying the rule of law, enforcing a statute enacted by Congress.
Interestingly, this may be some indication that this Court will defer a bit more to Congress, esp. when exercising core functions.
Bruce, I agree -- and the lawsuit was, as Ann noted, a protest lawsuit. I don't think the lawsuit was a protest against all things military as thorley does.
As a law student, I appreciate unanimous opinions and opinions in which there is one dissent and no concurrance.
Having said that, I don't think its a big deal that Roberts "brought the court together" for this 8-0 decision. The oral argument was pretty one-sided, and it seemed pretty clear to me at least that there wouldn't be much dissent on this one. Sure, its not, but then its not exactly Roe v. Wade, a unanimous decision that was arrived at only after much lobbying and persuading and whose unanimity gave it the moral authority it otherwise might have lacked.
I'm not sure that bringing losing cases is a good long-run political strategy. It surely wasn't the strategy of Thurgood Marshall and the NAACP, who tried to bring incremental winning cases. But I'm more concerned about the morality of a privileged group like law professors consuming public resources on purely expressive and wholly ineffectual activity when there are so many greater needs unmet. It seems feckless and self-indulgent to me.
I'm not sure that bringing losing cases is a good long-run political strategy. It surely wasn't the strategy of Thurgood Marshall and the NAACP, who tried to bring incremental winning cases.
I think the difference between the NAACP's successful midcentury legal campaign and this Solomon Amendment affair is that with the former, those bringing the suits were trying to overturn a longstanding line of precedent, and had to lay a very careful groundwork in isolating those precedents. Here, I don't think the law schools are all that invested in altering our first amendment jurisprudence. They just want to gin up public outrage over Don't Ask Don't Tell.
I hope this unanimous decision sends the clear signal to other litigants. When on the Federal dole, the Feds can make the rules. The pending law suits over NCLB should die in the district courts. I completely disagree with your advocating the use of litigation as a protest. Seeking Judicial remedy is a protest of democracy, an end run around public debate.
Seeking Judicial remedy is a protest of democracy, an end run around public debate.
This sentence made me go re-read the First Amendment.
But I'm more concerned about the morality of a privileged group like law professors consuming public resources on purely expressive and wholly ineffectual activity when there are so many greater needs unmet. It seems feckless and self-indulgent to me.
Here, here. If they have enough funds to file symbolic lawsuits to push their own political agendas, then they shouldn’t be asking for the rest of us to pay more taxes to support their institutions.
It sounds like you've predicted the subject of Frank Rich's next column (the opinion pieces that connect this decision to Brokeback Mountain)! Fortunately, he's walled off in the world of Times Select, so I don't have to pay any attention to his mind-numbing rants!
You may not appreciate how beautiful this thinking and writing is, but I do, and I think generations of law students will.
Hey! That's not fair!
Okay, so I know what you mean:
It takes a fellow professional to fully appreciate the intricacies of any activity...
...especially one which is not readily followed by non-specialists, like lawyers in this case.
But that sure hurt my feeeeeelings.
'Sides, I can appreciate crisp sentences, with clear thinking.
I just refuse to write them. :)
P.S.: As to the opinion itself, hurrah. But it seems that this opinion comes pre-loaded with ammunition to strike out at other, more delicate matters in relation to the military.
Am I wrong in assuming that there is a possible precedent established here regarding don't-ask-don't-tell?
Cheers,
Victoria
Chris, I used to post links that were outsized, and through the parametres of the blog out of whack, too.
Here's a handy reference to embed your links using HTML (just take out the spaces, of course):
< a href="http://www.linkhere.com/" > Check Out My Link < / a >
There. Nice, and neat!
I do windows too.
Cheers,
Victoria
The best part of the opinion comes at the end where CJ Roberts takes a subtle jab at the law schools for trying to pawn themselves off as mere children and parade organizers. The mental image this evokes is hilarious.
Seems to me harvard, and others of its ilk, are taking a lot of body blows of late. They seem determined to illustrate vividly and repeatedly how much they are on the fringe.
At what point does the public decide that they are like Scientologists, strident and combative minority believers, that we have to let speak because of the Consitution but can largely ignore...
I like you so, I regret that Sean reflects my views . I just threw in the wastebasket a dinner invitation which was going to be a pitch to contribute to the law school. I used to be a bencher and a regular contributor (along with my husband) to the alumni fund. No more.
Between the undergraduate admissions office refusing to come clean on their minority enrollment figures and the law school wasting good money to pursue this case, I will not make a single contribution to any of the University of law school's general funds.(Of course, I expect the law school will bow as well to the ABA's proposal you break the laws on admission, too.)
Instead I'll contribute to small programs I believe are not run by liars and the terminally clueless.
I agree that it's a crisp, well-reasoned opinion, but do you think a reader can make anything of the fact that, unlike in other recent cases involving sexual orientation, Roberts never once uses the word "gay," only "homosexual"? (I notice Scalia does this too.)
Roberts never once uses the word "gay," only "homosexual"? (I notice Scalia does this too.)
Would people prefer pederast? :)
I'm being cheeky of course (no pun intended), but if that is the case, if Scalia and Roberts use homosexual and not gay, bully for them.
Gay is slang. And SCOTUS Justices who have pretensions to write crisp, well-thought out opinions, need not play to the galleries with such terms.
Many people dislike the word homosexual, but I rather like it. It evokes a certain gravitas which is difficult to explain.
And lesbian just rocks.
Cheers,
Victoria
Addendum to my previous post:
Note, I have what Americans might call a "British accent" and so I pronounce this word:
Haw-maw-sex-syoo-ahl
Not:
Hoh-moh-sec-shoo-ull
Which sounds like a nasty strain of foot fungi.
Perhaps my liking the word, has to do with the softer vowels we employ?
Cheers,
Victoria
The real opposition, however, is to the military's discrimination against gay people, which really should be changed.
Ann, you've argued this week against the proposed ban on same-sex marriage in Wisconsin, and now pointed to the real issue in Solomon, and taken the above position. Thanks. I read this blog because, despite our intractable disagreement over W, I respect your core values.
I didn't join the earlier marriage discussion, out of just being tired of it. I really appreciated your participating as you did, and being a strong advocate.
Do you do more humor in "British"?
Althouse Comedy Hour
You'll be sorry. :)
Cheers,
Victoria
I would argue that gay is not slang. It was used in the majority opinions in Hurley, Romer, Dale, and Lawrence.
Before we get all wet and hot over Roberts' pithiness, girls, note that he did not avoid footnotes.
Richard said...
"Roberts never once uses the word 'gay,' only "homosexual"? (I notice Scalia does this too.)"
Perhaps because he means by the term "homosexual" both gays and lesbians, the term "homosexual" being genderless? To do otherwise, you have to either a) decide that "gay" is a blanket term for gays and lesbians (in which case, being that "lesbian" is the adjective for a definitely female homosexual, what is the adjective for the definitely male homosexual?) or b) drift into the endlessly pretentious alphabet soup with which the homosexual community likes to clothe itself - LGBTQABCDEFGETC. To avoid this horribly needless and confusing silliness, what is needed is a single term that is gender-free, that includes gay men and lesbian women and those people who can't make up their minds - a term such as...uh..."homosexual." I suspect the resistance comes purely because of an imagined opprobrium implied by the term.
"gay" may or may not be slang, but it is ambiguous.
I am old enough that "gay" still has as its primary meaning to me "joyful" or "frivolous" or "bright". This can lead to misunderatnding as when I referred to a proposal for yellow paint and aqua/yellow print curtains in a room as "gay colors"-- in California no less. In my defense the discussed purpose of the remodel was that the room was too dark.
To my mother a "gay" woman was one whose clothes were too revealing, went out with too many different men, and might possibly have unreported taxable income.
Better to use a term without other meanings. What would "same sex" be in Latin to avoid the male connotation of homosexual?
John, those ARE gay colors, by any definition!
I'd meet your mother's definition of gay, too, at some point in my life. Back in the early '90s, the Centers for Disease Control issued a set of criteria for deciding what women could be considered gay. The upshot was that a gay woman is one who hadn't had sex with a man in 10 years. As one of my lesbian friends quipped, "Gee, that means my mom is gay and I'm not!"
Ahhh. I get it now.
From Wikipedia, on "gay":
Usage note
Many gay people prefer not to be referred to by this term, feeling that being known as "gays" depersonalises them and reduces them to little more than their sexual orientation. The terms they prefer use gay as an adjective only (as in "gay men").
I see. So the inference is, given the arch-Conservatism of both Scalia, and now by opinion word association, Roberts, their usage of homosexual is derogatory?
Eh. I still like homosexual better.
Gives it a powerful air of authority -- one wouldn't like to mess with a homosexual in a dark street.
But gay? Those are the ones who never get picked for dodge-ball.
Cheers,
Victoria
To my mother a "gay" woman was one whose clothes were too revealing,
Yes! My grandmother used that term in her youth, for a daring woman who e.g. wore trousers in public.
Mind you, pre-WWII, calling a man "gay" meant he was delicate, physically.
But who knows, maybe it was a proto-usage of the word to designate some perceived constitutional weakness, which by inference was seen as effeminancy.
Still beats Nancy boy, though.
Cheers,
Victoria
Until then, I'll assign the filing of this lawsuit to a token protest against the military's costly and short-sighted policy.
The military has no policy against homosexuals serving in it. An Act of Congress makes homosexual activity by members of the service a crime. The only way the military could change this is by a general mutiny and the creation of a military junta.
Anyone who actually cared about changing Congress's policy on homosexuals in U.S. service would put pressure on Congress. The law schools, rather than taking action against Congress, took action against military recruiters. It is accordingly clear that they were not genuinely concerned with the Congressional policy, but merely found said policy a useful flag of convenience under which to to take potshots at the military.
I mean, c'mon, these are law schools. Thirty minutes of research on the Uniform Code of Military Justice would have made it clear that the military has no power to enforce any policy on homosexuals other than the policy dictated to it by Congressional Act.
In my own personal opinion:
1) the threat to take away ALL funding from a university because its law school refuses to go out of its way to help the military recruit is excessively punitive retribution
2) I'd like to see Harvard, Yale, the University of California system, and the Universities of Washington and Wisconsin refuse to allow military recruiters into their law school, then see how the Federal government scrambles around to start new defense, engineering, cryptography and bio-medical programs from scratch and on short notice
3) The military doesn't need these lawyers anyway. It already has a lot of lawyers, and indeed has its own ROTC program to create a steady flow of young lawyers into its JAG program. This is merely a power grab to force something down the throats of campus intellectuals who are among the military's most vocal political opponents.
What a laugh that is. As if they would forego the money and as if there were no comparable schools which would take it.(Hint:The Ivies engineering schools are about the worst in the country.)
Moreover, this "symbolic" fight resulted in the unanimous Court ruling that even without the grants Congress has the right to compel recruitment on campuses.So even if they forego the money, if Congress directs they must, the schools would have to allow recruiting.
Altogether the universities have behaved abominably. As we desperately need Arabic speakers and those with knowledge of the Middle East, many of them have barred recruitment of students who fit the bill on their campuses, too.
As if the richly endowed American universities could exist and exist so well without the contributions of those who die to overseas in our service.
This has been the worst hour for American colleges and universities. (And they weren't all that great, especially in the Ivies, as Hitler was beating his plowshares into swords.)
the threat to take away ALL funding from a university because its law school refuses to go out of its way to help the military recruit is excessively punitive retribution
You mean like enforcing diversity throughout the university--except for the basketball team?
CF - I don't know what you mean by your Hitler comment, but I'm certain that students from the Universities of Kansas and Arkansas were going to Canada in droves to enlist when Hitler invaded Belgium and started killing Jews.
Also, since you brought it up, the military has dishonorable discharged a LOT (something like 70) fluent Arabic and Farsi speakers over the past five years because they violated the don't ask, don' tell policy. What's more important, protecting our country or protecting our poor, sweet, innocent little soldiers from ever having to interact with big, scary homosexuals?
I'm reasonably confident that if the government was asking about someone's sexuality the don't ask, don't tell policy would be just fine.
Robert, your faith is strong but it makes little sense. How can the government ask, if the policy is don't ask? The fact is the policy doesn't work. Nor should it. We should get rid of it, and allow people to serve.
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