The Volokh Conspiracy

Since Rick Santorum’s unexpected success, his extreme social conservatism has gotten a lot of attention. In some cases, it goes beyond what even most conservative Republicans would be willing to support. My personal favorite extreme Santorum quote hasn’t yet gotten as much play as some of the others.

In a September GOP debate, Santorum responded to a question about his position on the repeal of Don’t Ask, Don’t Tell by saying that “any type of sexual activity has absolutely no place in the military.” Perhaps Santorum merely meant that military personnel should not be having sex while on duty. But if that’s the case, no one disagrees with him, including supporters of the repeal of DADT. Getting rid of DADT doesn’t change regulations forbidding sexual behavior that interferes with the performance of duty. The more natural reading of Santorum’s quote is that military personnel should be forbidden to engage in “sexual activity” of any kind for as long as they are in the armed forces. If that’s the case, only celibates could serve in the military.

It’s possible that Santorum simply misspoke. But when the moderator asked him to explain his position further, he actually dug the hole deeper:

When moderator Megyn Kelly pressed him on what he would do as President, he fired back, “We are playing social experimentation with our military right now and that’s tragic...going forward we would reinstitute that policy if Rick Santorum was president, period.”

Santorum acknowledged that he couldn’t do much about those men and women currently serving in the military that have admitted to being gay, but concluded by saying, “Sex is not an issue, it should not be an issue, leave it alone and keep it to yourself whether you’re a homosexual or a heterosexual.”

In Santorum’s army, not only would gays be required to keep their sexual orientation secret, but so would heterosexuals. An equal-opportunity closet for all! The problem, of course, is that it’s very difficult to keep your orientation completely secret from long-term coworkers. People naturally mention their spouses, significant others, and so on, in casual conversation. If you wear a wedding ring or have a photo of your spouse on your desk, that might also be an indication of your sexual orientation. As a practical matter, you would probably have to be either celibate or extremely secretive to be safe from punishment under Santorum’s rule.

I can understand, though I don’t agree with, people who claim that DADT must be restored in order to promote unit cohesion. But Santorum’s prudery goes way beyond that.

I suspect that Santorum may not have grasped the implications of what he was saying. If he thought about it more carefully, he might well realize that forbidding all “sexual activity” by military personnel is likely to destroy the armed forces by making it nearly impossible to attract the number of capable volunteers we need to staff the military. Unless he intends to cut the military far more than even Ron Paul, that’s probably not what Santorum really wants. If Santorum wins the presidency, I doubt that he will actually try to implement this policy, if only because it would be a public relations disaster. Even so, it was a foolish and revealing statement.

The LA Times has an article describing how ROTC programs have returned to many elite universities in the wake of the abolition of the Don’t Ask Don’t Tell policy:

Helped by the recession, more active recruiting and a sea change in student perceptions of the military, enrollment in ROTC programs on college campuses is booming.

Even with ongoing U.S. involvement in conflicts in Afghanistan, Iraq and now Libya, participation in the program has surged 27% over the last four years — to 56,757 men and women, according to the Defense Department. The military boosted the number of ROTC scholarships to help expand the wartime officer corps, and the recession made the offers attractive to students.

Today’s college students, who never faced a military draft and whose childhood memories include the terrorist attacks of Sept. 11, 2001, are more receptive than their parents’ generation to seeing fellow students in uniform. Returning veterans who served in Iraq and Afghanistan and are now enrolled in college also create a more sympathetic, and familiar, image of the military.

In another sign of the changing times, the congressional rescinding last year of the “don’t ask, don’t tell” ban on gays serving openly in the military has recently led Stanford, Harvard and several other elite universities to take steps to welcome the ROTC back to their campuses for the first time in 40 years.

On-campus military training still raises hackles for some. Yet even critics acknowledge that most current college students are willing to accept the ROTC.

I previously wrote about the return of ROTC here and here. Although I thought that DADT was a shortsighted and unjust policy, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that as it may, the return of ROTC to schools that had previously banned it is a positive development.

A few weeks ago, I wrote a post about the question of whether elite universities will allow ROTC programs to return to campus now that the don’t ask don’t tell policy has been repealed and gays and lesbians can serve openly in the military. I am happy to report that Harvard University has now agreed to recognize ROTC [HT: Harvard student Yair Rosenberg]:

The Reserve Officers’ Training Corps will be formally recognized by Harvard tomorrow after a 40-year hiatus, the University announced today. University President Drew G. Faust and Navy Secretary Ray Mabus are set to sign an agreement Friday that will recognize the Naval ROTC on campus.

“Our renewed relationship affirms the vital role that the members of our Armed Forces play in serving the nation and securing our freedoms, while also affirming inclusion and opportunity as powerful American ideals,” Faust said in a statement. “It broadens the pathways for students to participate in an honorable and admirable calling and in so doing advances our commitment to both learning and service.”

Previously, University officials have stated that they would not recognize the program until “Don’t Ask, Don’t Tell”—the military policy which banned gays from openly serving the military—was lifted. Since Congress repealed the ban in November, Faust and other officials have been in discussions with the Pentagon about bringing the program back to campus.

Apparently, Harvard ROTC participants will continue to train at MIT rather than at Harvard itself. That, however, seems to be a cost-driven decision by the Pentagon, not the result of any effort by Harvard to keep the military off-campus.

Although I have always opposed DADT, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that has it may, there is no good reason for universities to exclude ROTC from campus now that DADT has been repealed. Hopefully, other universities will follow Harvard’s example.

At the Weekly Standard blog, Cheryl Miller asks whether the repeal of Don’t Ask Don’t Tell will lead to the return of ROTC programs to elite university campuses [HT: here]. In recent years, university officials have defended the exclusion of ROTC from campus as a way of countering the military’ discrimination against gays and lesbians, and have vehemently denied that they are antimilitary. With the end of DADT, that obstacle to ROTC should be removed.

As Miller points out, the Pentagon may have reasons for its own for choosing not to establish ROTC programs at some elite schools. And there are those in the military who strongly dislike elite academia. Thus, some schools might not get ROTC programs any time soon even if university administrators support the idea. Still, nothing prevents university officials from announcing that they would now welcome the return of ROTC programs if the military is interested. President Obama urged them to do just that in his recent State of the Union speech.

The same point applies to law schools. After having lost a Supreme Court case over the issue, law schools were forced to permit military recruiters to interview on campus as a condition of receiving federal funding under the Solomon Amendment. In the aftermath of this legal defeat, most law schools admitted recruiters, but continued to emphasize that they were doing so under duress. Some also adopted various “ameliorative practices” required by the American Association of Law Schools, and designed to emphasize their opposition to the presence of military recruiters. Both the AALS and individual schools should repeal the varous ameliorative practices and officially indicate that they now voluntarily welcome military recruiters on the same basis as other interviewers. As recently as May 2010, the AALS emphasized that its opposition to military recruiters should not be interpreted as “antimilitary,” but was instead merely an effort to oppose discrimination against gays and lesbians. The time has come to live up to those principles.

For reasons I outlined here, I think that it was wrong to exclude ROTC and military recruiters even while DADT was in force, despite the fact that I also believe that that policy was a serious injustice. Regardless, with DADT on its way out there is no longer any plausible reason for universities to exclude either ROTC programs or military recruiters.

UPDATE: The Harvard Crimson, Harvard’s main student newspaper, just published an editorial calling for the return of ROTC to campus [HT: Harvard student and Crimson writer Yair Rosenberg:

Just as DADT represented an outdated prejudice directed toward gay American citizens, the absence of ROTC now stands as a relic of an outdated bias against the American armed forces. When ROTC was expelled from Harvard in 1969, military enlistment was mandatory, as was ROTC participation on countless U.S. campuses. Today, absent its prior objectionable compulsory and discriminatory policies, ROTC deserves recognition as a legitimate pre-professional track at Harvard. The university supports pre-law, pre-med and pre-business activities on the part of its students; it should support pre-military study as well. Further, the same access to Harvard’s student body that is granted to recruiters for countless career paths should be given to the U.S. military....

We remind those who would oppose this move that President Faust and other Harvard administrators have repeatedly predicated the return of ROTC upon the repeal of DADT. Thus, should the university backtrack on its public commitment, its political credibility will be greatly impaired, as will Harvard’s ability to influence future legislation with similar pronouncements.

The Pentagon has now released its 256-page report on repealing Don’t Ask, Don’t Tell, called formally the “Report of the Comprehensive Review of the Issues Associated with a Repeal of ‘Don’t Ask, Don’t Tell.’”   I won’t hide the ball.  After reviewing tens of thousands of questionnaires and polling data from active duty service members, interviewing military leaders, analyzing past studies on the policy, and consulting the experience of foreign militaries, the Report concludes that DADT could be repealed with “low” risk of negative effects on the military.  There is a fairly comprehensive “Executive Summary” at the beginning of the Report for you executives out there who don’t have the time or inclination to read the entire thing. And for the really high-flying execs, here’s the key paragraph in the Exective Summary:

Based on all we saw and heard, our assessment is that, when coupled with the prompt implementation of the recommendations we offer below, the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low. We conclude that, while a repeal of Don’t Ask, Don’t Tell will likely, in the short term, bring about some limited and isolated disruption to unit cohesion and retention, we do not believe this disruption will be widespread or long-lasting, and can be adequately addressed by the recommendations we offer below. Longer term, with a continued and sustained commitment to core values of leadership, professionalism,and respect for all, we are convinced that the U.S. military can adjust and accommodate this change, just as it has others in history.

I found intriguing one particular part of the report. The expansive survey of active duty personnel revealed that about 50-55% predicted repeal of DADT would have either no or mixed effect on the military; another 15-20% thought it would have a positive effect; and 30% believed it would have a negative effect (the negative group was highest in the Marine Corps, 40-60%, depending on the unit).  At the same time, 69% of personnel said they had actually served with a gay person. Of these 92% said the unit’s ability to work together was either very good, good, or neither good nor bad. Of greatest potential concern was the greater anxiety of personnel in active combat units when asked about serving with openly gay people. But the survey shows that while problems are expected a priori in these units, they rarely arise in real life.

For example, when those in the overall military were asked about the experience of working with someone they believed to be gay or lesbian, 92% stated that their unit’s ‘ability to work together,’ was ‘very good,’ ‘good’ or ‘neither good nor poor.’ Meanwhile, in response to the same question, the percentage is 89% for those in Army combat arms units and 84% for those in Marine combat arms units—all very high percentages. (emphasis added)

This is a common phenomenon is public policy disputes about homosexuality. Huge and catastrophic consequences are predicted almost any time some affirmative measure is proposed, like ending the ban on federal service, granting security clearances, eliminating sodomy laws, passing hate-crimes or antidiscrimination laws, and so on.  Yet the apocalypse never comes.  A few initial grumbles are heard, but these quickly subside and life goes on pretty much as before, except that a new group of people has had legal and stigmatic burdens lifted from them. The same dynamic is at work today on the issue of same-sex marriage.  Pre-SSM, much doom and gloom is expected; post SSM, calm and ordinariness break out. (For example, 92% of Iowans polled in the November election reported that SSM had no effect on their own lives.)

And this hysterical form of argument has worked remarkably well, at least until today, on the issue of allowing gay men and lesbians to serve their country honorably in the military.  Now, for the first time, we have a formal conclusion from the Defense Department itself, backed up by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs,  that it does not need DADT to run an effective fighting force. As one special operations fighter told the Committee, “We have a gay guy [in the unit]. He’s big, he’s mean, and he kills lots of bad guys. No one cared that he was gay.” It’s now up to the U.S. Senate to end a misbegotten policy that has produced needless misery and expense, and that outlived its usefulness the day it was born.

A federal district court judge in California has held that the military’s policy of prohibiting openly gay members of the military, known as “don’t ask, don’t tell,” is unconstitutional.  Here’s a link to the decision (courtesy of How Appealing) and reports from the Los Angeles Times and the AP.

What happened last week to the federal ban on military service by gays and lesbians? Chris Geidner has an excellent summary of the developments.

The Senate Armed Services Committee has just voted 16-12 to repeal Don’t Ask, Don’t Tell. The repeal would take effect after the release of a Pentagon study on how (not whether) to repeal the policy and after both the president and Defense Department have certified that the repeal will have no detrimental effect on recruitment, retention, unit cohesion, and so on. The House will vote soon. 

Meanwhile, Republican House members are taking the floor to complain that gay military personnel are trying to push their “overt” sexuality on others “in a bunker where they’re confined under fire,” that they “don’t care” about the military, and that they’re exploiting the armed forces for some kind of “liberal social experiment.”  Perhaps, but it appears 78% of Americans, including a majority of Republicans, are flaming liberals on this one.

UPDATE: The House of Representatives has voted to repeal DADT. The vote was 234-194, with only five Republicans supporting it and 26 Democrats opposed.

[youtube]http://www.youtube.com/watch?v=ZnBYiHHAifU[/youtube]

to a repeal of Don’t Ask, Don’t Tell. Sen. Ben Nelson (D-Nebraska) has now said he will vote for repeal, Politico reports:

“I don’t believe that most Nebraskans want to continue a policy that
not only encourages but requires people to be deceptive and to lie.
The ‘Don’t Ask, Don’t Tell’ policy does just that,” Nelson said. “It
also encourages suspicion and senior officers to look the other way.
In a military which values honesty and integrity, this policy
encourages deceit.”

“I will support the Lieberman compromise because it removes politics
from the process. It bases implementation of the repeal on the
Pentagon’s review and a determination by our military leaders that
repeal is consistent with military readiness and effectiveness, and
that the Pentagon has prepared the necessary regulations to make the
changes,” he said, adding that he spoke with Defense Secretary Robert
Gates about the issue.

“He advised that while he preferred waiting until the study is
completed, he can live with this compromise,” Nelson said.

Add that to pledges from Susan Collins (R-ME) and moderate Democrats Evan Bayh (Indiana) and Bill Nelson (Florida) to support repeal. While some gay activists and analysts have denounced the proposal as too weak because it does not actually require the military to stop discharging gay personnel, that criticism is misplaced. This is a “compromise” that eviscerates the statutory basis for the 16-year-old policy.

UPDATE:  Developments are coming quickly.  The Weekly Standard says that Sen. John McCain is organizing resistance to the repeal, releasing letters from the heads of the military branches opposing it until the Pentagon review of the policy is completed in December.  By then, it would be much more difficult to repeal the policy because a repeal would be subject to filibuster.  Additionally, action after this year would be more difficult because the next Congress is likely to be less supportive of repeal.

FURTHER UPDATE: The duel of generals has begun. Former Joint Chiefs Chairman General John Shalikashvili responds to the military chiefs. Even Sen. Robert Byrd (D-WV) is on board. That makes 16 votes on the Senate Armed Services Committee.

A deal is in the works to add a repeal of Don’t Ask, Don’t Tell to this year’s Defense Authorization bill, the method by which it was originally made law. It’s not clear that the votes are there in the House to do it, and if they aren’t there this year they’re unlikely to be there in the next Congress. It would not be subject to filibuster in the Senate. 

The repeal is limited in one sense. It does not ban discimination against gays in the militery. It returns the status quo ante DADT in 1993 when the president had sole authority to set military personnel policies on gays. The difference is that now the president has promised to reverse the old policy after a study is issued in December on how to implement the change. 

In theory, the next president could reassert the ban. But that’s very unlikely to happen once gays are serving openly. Liberalization of anti-gay public policy tends to be governed by one-way ratchet. Plus, the experience in other countries has been that allowing service by openly gay personnel presents no real problems for recruitment, retention, or discipline, and controversy about it quickly subsides.

Conservative critics of Elena Kagan, such as William Kristol and Ed Whelan, have focused on her role in trying to prevent military recruiters from interviewing at the Harvard Law School campus because of the law banning openly gay individuals from serving in the military. The critics argue that Kagan’s stance was badly misguided and a possible indication of anti-military bias. I think this critique of Kagan is half-right. She did make the wrong call, but there is no proof that it was caused by anti-military bias.

I. Why Kagan was Wrong.

Like Kagan, I believe that the military’s exclusion of openly gay personnel is both unjust and foolishly prevents the armed forces from using potentially highly qualified personnel. I’m not completely convinced that it’s “a moral injustice of the first order,” as she put it. But I certainly think it’s an injustice of the second or third order.

At the same time, barring military recruiters from campus was not the right response to this injustice, especially in wartime. As the critics point out, it was ultimately Congress and the President, not the military, which imposed the “don’t ask, don’t tell” policy. Kagan and other law school leaders were in the strange position of boycotting those who obeyed morally dubious orders while giving a pass to those who issued them. Moreover, until they were invalidated by the Supreme Court in 2003, some 13 states still had laws on the books banning “sodomy.” Even if these laws were rarely enforced, that seems a much more severe infringement on gay rights than DADT. Yet neither Harvard nor (to my knowledge) any other law school banned recruiters from those states’ legislatures and other government agencies.

Even more importantly, the military’s unjust policy in this one area has to be weighed against the many good things the armed forces do, including their vital role in protecting our lives and freedom against outside enemies. In this regard, there is much to be learned from the position that black leaders took during World War II. Even though the armed forces were then segregated by law and otherwise engaged in egregious discrimination against blacks, the NAACP and other civil rights organizations supported military recruiting because they recognized that the enemies the military was fighting were far worse than the racist injustices of the armed forces themselves. As Joe Louis put it at the time when asked why he was promoting recruitment of blacks into a segregated military, “[t]here may be a whole lot wrong with America, but there’s nothing that Hitler can fix.” The analogy is particularly apt in light of the fact that the radical Islamist enemies we are currently fighting have antigay policies that make even the most bigoted American social conservatives seem enlightened by comparison. As co-blogger David Bernstein put it back in 2005:

[C]onsider[ing] . . . that the military is engaged in several shooting wars right now, one can also question how much weight one should give “Don’t Ask Don’t Tell” in the broader scheme of things, even if one thinks it’s a terrible, invidious policy. A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military’s policies...? If any of the leading advocates of boycotting military recruiters have seriously grappled with the moral implications of doing so in the midst of major military conflict with truly awful enemies, I haven’t noticed it.

II. Why She (Probably) Wasn’t Motivated by Anti-Military Bias.

Despite my opposition to Kagan’s efforts to exclude military recruiters from Harvard Law School, I see no indication that they were the result of antimilitary bias. The strongest argument in favor of such bias is that she sought to exclude the military, but not recruiters from Congress and the executive branch, which had imposed DADT in the first place. However, there are alternative explanations for this double standard.

First, the HLS policy and that at other law schools applied only to those employers that discriminate against gays in their own hiring, not to those that might have promoted antigay policies by other employers. The military falls in the former category, Congress and the executive branch, the latter. Expanding the policy to cover that second category would have been a major step that Kagan and other deans would understandably be reluctant to take.

Second, boycotting recruiters from the executive and legislative branches of the federal government (as well as numerous state and local governments with various antigay policies) would have seriously impaired the employment opportunities of law students at any law school that took that step. Taking this consideration into account would not be a case of unprincipled hypocrisy or “selling out” on Kagan’s part, as some critics suggest. Rather, it’s a case of two principled commitments conflicting with each other. On the one hand, the objective of promoting equality for gays and lesbians, on the other a law school’s obligation to help its students find employment opportunities. It is not necessarily unprincipled for a law school administration to conclude that the former obligation doesn’t always take categorical precedence over the latter.

To be completely clear, I don’ think that either of these points justifies the position that Kagan adopted. To the contrary, I think her position was wrong for the reasons explained above. But they are plausible explanations of her actions not based on anti-military bias.

Finally, it’s worth noting Kagan’s 2007 speech at West Point, where she went out of her way to praise the military and emphasized that her stance on military recruitment was not an indictment of the armed forces as a whole:

I want to thank all of the cadets here this evening-not for attending this talk (I’m told it’s not optional!), but for all you will do to defend, protect, and strengthen this country. Each of you has made a decision-a profound commitment-· to join “the long grey line” of service. I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger. I
know how much my security and freedom and indeed everything else I value depend on all of you....

I don’t accept many outside speaking invitations; this may be the only talk of this kind that I’ll give this year. I accepted this invitation primarily to thank all of you senior cadets....

I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds indeed,
facing each other in court – on one issue. That issue is the military’s don’t-ask don’t- tell policy. Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation. And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise....

But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue.

To be sure, Kagan could hardly take a generally negative stance on the military in a speech at West Point. But as she implied in the speech itself, if she were genuinely anti-military, she could simply have turned down the invitation (perhaps by pleading conflicting commitments, of which an HLS dean usually has many).

In sum, Kagan’s support of a ban on military recruiters is legitimately subject to severe criticism. Senators should certainly question her about it. But I don’t see any reason to believe that it reflects a general hostility towards the armed forces.

UPDATE: Ed Whelan e-mailed to say that he had not claimed that Kagan was anti-military but merely that she had “elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.” I appreciate the correction. However, it’s worth noting that Whelan (quoting Peter Beinart) endorsed the view that Kagan’s policy “amounted to ‘a statement of national estrangement,’ of Kagan’s ‘alienating [her]self from the country.’” I was wrong to understand this as an accusation of antimilitary bias. But if it’s not that, then it seems an accusation of general estrangement from the US as a whole, which is an even broader charge. I think the points I made above cast doubt on this charge as well as on the narrower charge of anti-military bias. For example, I don’t think that she would have praised the military so effusively at West Point (or even spoken there to begin with) if she were “estranged” from the nation that military is tasked with defending.