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FAIR v. Rumsfeld Oral Argument:
Lyle Denniston has a summary of the argument in the Solomon Amendment case. An excerpt:
  Congress' demand that law schools give military recruiters equal access to their students, despite the military's policy of barring homosexuals from service, appeared to have survived quite easily its constitutional test in the Supreme Court on Tuesday, at least if oral argument reflects the Justices' actual leanings. Aside from Justice Ruth Bader Ginsburg and, possibly, Justice David H. Souter, the so-called "Solomon Amendment" appeared to draw no serious opposition from the bench.
  I had predicted a 9-0 reversal of the Third Circuit a long time ago, so I suppose I'm not surprised that the argument went well for the government. Of special note, the Court has released the audio from the argument, and it is available here.

Cornellian (mail):
These audio recordings of oral arguments are so much more fun to listen to on an iPod than the same song you've heard 20 times before. I'm looking forward to this one.
12.6.2005 5:16pm
Curious:
After listening to this, Ch. J. Roberts seemed to think it was pretty clearly a case of being free to refuse federal money if you want, but if you take the money, you can't complain about the implications.

Having not read its text, does the Solomon Amendment deal with anyfederal money taken from a university as a whole, or is it limited to particular funds accepted by the particular school within the university for which the government seeks equal access to recruit?

If it is the former, and especially if it relates to all federal money, it really is rather dismissive of Roberts to say just turn down the money when you are dealing with millions of dollars. It really is in a lot of ways out of the law school's control regardless of the strength of its opposition to the military's policy.
12.6.2005 5:53pm
Curious:
I meant to include next to "millions of dollars" something
about research money and similar federal funding programs which affect the span of a university which I'm not sure are implicated in this statute.

oops.
12.6.2005 5:57pm
Hans Bader (mail):
Few have recognized the radical (and unanticipated) consequences that would arise from affirming the Third Circuit's ruling striking down the Solomon Amendment.

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, as federal civil rights laws do, 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.

The Third Circuit decision the Supreme Court is poised to reverse was also problematic in invalidating the Solomon Amendment not only as to private colleges (which have first amendment rights) but as to public colleges (which some circuits have held do not have first amendment rights, since the first amendment protects private citizens against the government, not the government itself).

It's easy to see the objection of qualified gay students denied the opportunity to interview for legal positions 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.
12.6.2005 5:59pm
Steve:
I don't think you have to believe that Congress has no coercive Spending Clause power whatsoever to believe the Solomon Amendment is unconstitutional. But it looks like a safe bet that the Supreme Court will find the present case to be safely within permissible limits.

Denniston reports that Scalia, who of course supported the government's position, seemed annoyed that the Administration did not choose to defend this law under Congress' power to raise an army. Some commentators have observed that Congress' power is virtually limitless in this regard and, in their view, the argument would make the case a virtual slam dunk. Scalia appears to agree and would undoubtedly prefer to resolve the case on this uniquely applicable basis, rather than get into the business of delineating Congress' coercive power as a general matter.
12.6.2005 6:05pm
Curious:
Steve,

Scalia effectively scolded Clement for not basing the entire case on the basis.

Clement's repsonse was 1) yes, we clearly win on Art I power to raise and support and army; and 2) we think the spending clause argument is even more straight forward and compelling.
12.6.2005 6:10pm
Skid (mail):
Prof. Kerr,

This seems like a pretty straightforward Spending Clause case, but I am a little suprised that there wasn't any particular complaint from Justice O'Connor. I'm just thinking about her dissent in Dole and some of her opinions in the Title IX cases.

I haven't listened to the oral arguments, but do you think that Justice O'Connor won't have an issue with the spending clause argument if (big if) she believes it is being used to contravene the 1st Amendment? I guess you can't really answer that, but rather, I was wondering if you picked up anything from the oral arguments that could suggest that...thanks for the post...reading about this is way more interesting than studying for my federal courts final...
12.6.2005 6:22pm
Anonymous1L:
Having not read its text, does the Solomon Amendment deal with any federal money taken from a university as a whole, or is it limited to particular funds accepted by the particular school within the university for which the government seeks equal access to recruit?

Curious: The Solomon Amendment, by itself, applied to federal funds to the law school. An amendment to the Solomon amendment applied to the university as a whole. (IE, allow JAG recruiters the same access private firms have, or we'll pull the funding for the entire university). This second issue is what gave rise to the present case. All of the universities on this case are private, which was a conscious decision on the part of FAIR. (State-run universities bring in a whole other set of issues)
12.6.2005 6:37pm
Bub (mail):
Is anyone else having trouble accessing the audio?
12.6.2005 8:03pm
Chuck Williams (mail) (www):
I think my blog entry today touches on this subject fairly well.

Exerpt:

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."

You can read more here...

Diary of a Fat Boy: Supreme Court To Hear Oral Arguments...

Sorry to hijack...
12.6.2005 8:09pm
Andy Freeman (mail):
> All of the universities on this case are private,

The feds often use the purse to "encourage" states to do things, threatening to withhold funds fairly unrelated to the desired act. (For example, the 55mph mandate.) Does the federal govt owe more deference to private institutions than it owes to state governments?
12.6.2005 8:09pm
Cornellian (mail):
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.


Actually it's highly unlikely that such policies would fault the military from discriminating on the basis of age, as there are very sound reasons for recruiting 20 year olds rather than 55 year olds and such policies don't forbid all discrimination, only discrimination on enumerated grounds that cannot be justified according to whatever standard of justification is indicated in the policy. Age discrimination has a more than plausible justification, whereas sexual orientation discrimination is nothing more than arbitrary.

As for being "really interested in thwarting American foreign policy" are you really saying that law schools don't actually care about discrimination on the basis of sexual orientation? That their professed concern is purely pretext? As someone who actually attends one of the law schools who participated in the litigation, I can tell you I don't have any reason to doubt that their concern not to be associated with such discrimination certainly looks genuine to me, nor have I ever heard a faculty member, in or out of class, state or even imply that this was all just a ruse to "thwart American foreign policy." Stopping military recruiters from recruiting at the top law schools has basically zero effect on American foreign policy anyway, and law school professors are certainly smart enough to realize this. Besides, even when they're allowed to recruit on the same basis as other employers, hardly anyone even signs up for an interview with them, at least at this law school. So the idea that their discrimination policy is somehow thwarting American foreign policy is absurd.
12.6.2005 8:29pm
cmp:
The unique problem applying the FAIR rationale to public universities, I believe, is that the claim is based on the assertion that private universities are "expressive associations" and that they control their message, in part, by limiting access to those whom they agree with. Harder for publics to contend that they should be able to exclude persons on the basis of their views, speech, etc.
12.6.2005 8:43pm
Justin (mail):
Can the government condition social security on a loyalty oath?
12.6.2005 8:44pm
Ken Alfano (mail):
Is anyone else perplexed at how universities can complain with a straight face about discrimination of one type, while simultaneously seeking to practice another type? Isn't this kind of "value judgment" the very kind of thing they criticize the military for when they don't agree with it?
12.6.2005 8:55pm
Cornellian (mail):
Can the government condition social security on a loyalty oath?

No it can't, nor could it (for example) make eligibility for the home mortgage deduction contingent on agreement not to criticize the government decision to invade Iraq. The government doesn't have unlimited authority to use money to try to eliminate what would otherwise be your constitutional rights but wherever that line may be, it seems from the news reports that the Court doesn't think this case crosses that line.
12.6.2005 9:06pm
Brian G (mail) (www):
Clement steamrolled Rosencranz, who was clearly stuck with a disgracefully awful case to begin with.

FAIR deserves to lose, and lose royally. The law schools are hypocrites, and the one I attend is no different.
12.6.2005 9:34pm
Curious:
Clement steamrolled Rosencranz, who was clearly stuck with a disgracefully awful case to begin with.

While I agree that SG Clement had the superior argument, you can't deny that he made one hell of a concession--i.e. that law schools could organize jeering protests against the military recruiters--that really didn't have to be made. Not sure what the practical implications will be--if any--from such a formulation of the statute.
12.6.2005 10:01pm
Dave H (mail):

despite the military's policy of barring homosexuals from service


this never ceases to irritate me. the "don't ask, don't tell" policy is not something the military dreamed up one fine day, but is mandated by congress. you know, civilian control of the military and all that?
12.6.2005 10:01pm
Dave Hardy (mail) (www):
The feds often use the purse to "encourage" states to do things, threatening to withhold funds fairly unrelated to the desired act. (For example, the 55mph mandate.) Does the federal govt owe more deference to private institutions than it owes to state governments?

Come April, look on your federal and state tax forms for all the exemptions, deductions, and credits, relating to everything from hybrid vehicles to solar powered utilities to having kids to donating to charity....
12.6.2005 10:48pm
therut (mail):
The power to tax and hence spend has always been the power to control. Get used to it as the left loves both as it gives the Federal Government immense power over its citizens. Sometimes it bites you too.
12.6.2005 11:16pm
Justin (mail):
this never ceases to irritate me. the "don't ask, don't tell" policy is not something the military dreamed up one fine day, but is mandated by congress. you know, civilian control of the military and all that?

I'm not sure what is worse: this outrageous lie (technically, not a lie, but this...irrelevance) or the fact that someone in the GOP can think of this, distribute it to the blogs, and get otherwise intelligent people to parrot it to the point you can't talk about any topic without the lie/irrelevance being brought up and demanded attention.

Congress passed "don't act, don't tell" as a compromise between the view of liberals which wanted to end the overt discrimination entirely and the view of the MILITARY BRASS who wanted ABSOLUTE AUTHORITY to dismiss homosexuals. So to say that the military is just following the law is like saying that when Bush is given less than his full budget for invading Iraq, that its not his fault there were WMDs, it was CONGRESS who authorized...oh wait.

::cries for the loss of our democracy::
12.6.2005 11:17pm
Justin (mail):
Whoops. That was meant to read no WMDs obviously (but given the amount of people who voted in 2004 thinking WMDs were found, its oddly still appropriate).
12.6.2005 11:18pm
WHUFOs (mail):
Just "watched the audio" on CSPAN and I found it to be a fascinating case.

Both sides are really locked in a deal with the devil, no? The law schools want to be able to tell the military to screw off, but their campuses are too deeply feeding from the Federal trough to go it alone. But the government wants it both ways too: they want to pass discriminatory legislation, without losing access to the benefits that the law schools provide (top candidates for employment congregated together). I was wishing that a Justice asked, of either side, but especially the law schools: "Suppose we declare the whole practice of funding private universities unconstitutional. Are you happy now?"

As much as I oppose any form of anti-gay discrimination, in the military or outside it, my uninformed opinion ended up being that the government had a stronger case.


These audio recordings of oral arguments are so much more fun to listen to on an iPod than the same song you've heard 20 times before. I'm looking forward to this one.


Cornellian, maybe you're listening to the wrong music? ;-)
12.7.2005 12:26am
Omar Bradley (mail):
Cornellian, would you consider 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 that AGREES with you. Diversity works 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"

Reversed. IT IS SO ORDERED
12.7.2005 1:00am
Cornellian (mail):
Cornellian, would you consider 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.

The discrination comes from the selectivity of the draft, not from the existence of it. A draft that randomly selected men regardless of sexual orientation wouldn't have an equal protection problem, at least as far as sexual orientation was concerned. Women are in a somewhat different position, since physical strength is relevant to one's ability to carry out the duties of a soldier. Arguably a male only draft would be an equal protection problem since large numbers of women already serve in the military and therefore can be assumed to be qualified for many military positions. This is an entirely separate issue from placing women in land combat positions, which I understand is currently not permitted. One can have a draft without placing women in combat. In fact, if a draft were to be reinstated, I'd say there's a good chance that the services would be in favor of drafting women, though not in favor of placing them in land combat roles.

As I understand the draft law (not that I've never studied it closely) it does exempt people with genuine religious objections to military service (such as the Quakers), so you don't run into a free exercise issue.

There's an arguable speech case, but not a particularly convincing one. No one things that if you are drafted that it means you are in favor of being drafted, or of military service in general.

I had heard that story about Jimi Hendrix, though not the bathroom part of it. Made me wonder how many straight men have got out of military service this way. I suppose it beats having to move to Canada. With relatively greater public tolerance of homosexuality today as compared to the 1960's I would expect even more men will see pretending to be gay as a "get out of jail free card" as you put it. If the military wants to close that loophole, they know what to do, though it's quite likely to be moot, since the odds of there ever being a draft in the US in the foreseeable future are slim to none. There is, however, a considerable difference between being immune to being forced to serve in the military, and being excluded when you want to serve in the military. Nearly everyone would like the former, and very few would like the latter, again regardless of sexual orientation.

I did, in fact, disagree with Grutter and with VMI. Does that surprise you? I have no idea what FAIR thinks of those cases, or even if they have any opinion about them. I did listen to the oral argument of the case and since none of those cases came up at all, I can only assume neither they, nor the government nor any of the SCOTUS judges considered them particularly relevant.
12.7.2005 1:50am
Omar Bradley (mail):
I commed you on your Grutter and VMI views. At least you're consistent. I somehow doubt FAIR and the law schools opposed those decisions, not to mention many other similar ones.

Your wrong about free exercise. If I'm Muslim I can't demand to be released from a mission or any other army assignment beacuse I have to pray 5 times a day or I can't demand to keep my beard. If I'm a Jew I can't refuse a mission on saturday or demand that I can wear a kippah or tallis in all missions. There are many religious exercises that are impinged on by the military.

You say physical strength is a good enough reason. There are many men that may be weaker than a given woman. And if physical strength is needed, why isn't moral strength needed? Surely the soldier who lacks any moral strength and purpose is not a desired outcome. Moral cohesion and unit morale is an integral and vital part of military operatons. If the soldier lacks moral standing his physical traits are worthless. And I think McCulloch clearly shows that Congress has extremely wide latitude in reaching that dtermination.

You write:

There's an arguable speech case, but not a particularly convincing one. No one things that if you are drafted that it means you are in favor of being drafted, or of military service in general

Hello? No reasonable person would think that merely because the JAG officer shows up at a job fair that the law school approves of all aspects of the military or its DADT policy. It's just not rational to think so.

As for claim about exclusion, if i was a jew and the military said that all jews are exempt from the draft or all lacks are exempt, I'd hae no problem, and even welcome it. How many gays had their lives saved by not being drafted in WW2, Korea, or the Nam?

Additionally, I would point out that "Don't ask don't tell" does not in fact bar homosexuals from serving in the military. Instead it requires that they keep that aspect of their life private and they cannot be questioned about it.

There are many other aspects of one's private life that they submit to the military when they join as well. And the Constitution does not provide for "free exercise of one's sexual proclivities"

Admittedly it's not the best policy around, but let's stick with baby-steps as we've gotten past the active investigation of potential homosexuals to a stance of toleration. A number of years from now we may see it be relaxed completely. This similar to the "all deliberate speed" language from Brown. If it was good enough for Brown, it's good enough for FAIR.

Finally, as others have pointed out on the net the colleges are unfairly demonizing the military when it was Congress that enacted the law in question. It sholud really have been US v FAIR, not Rumsfeld v FAIR.
12.7.2005 2:14am
Omar Bradley (mail):
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.

I expect at least a 7-2 reversal with perhaps Ginsburg and/or Souter dissenting. It's that open and shut in my view, although I 100% respect your view on the case, particularly after you stated your thoughts on Grutter, VMI andd othe aff action cases. I greatly respect that. In this case, however, I must respectfully dissent
12.7.2005 2:34am
Random Numbers (Brian Epps) (mail) (www):
Congress passed "don't act, don't tell" as a compromise between the view of liberals which wanted to end the overt discrimination entirely and the view of the MILITARY BRASS who wanted ABSOLUTE AUTHORITY to dismiss homosexuals.
Uh, Justin,

How many votes did the MILLITARY BRASS, as you put it, have in that decision? Have you even READ the Constitution?
12.7.2005 3:37am
therut (mail):
Loyality Oath -----------mentioned above made me remember something I thought at the time interesting. When I got my CCW in Arkansas there was an oath I had to sign. I don't remember the exact words but I pledged to not bear arms aganist the State of Arkansas, the Governor etc. HHUUUMMMM. Interesting. Maybe I am offically part of the unofficial unorganized milita of Arkansas?
12.7.2005 4:07am
Public_Defender:
I agree that the Solomon Amendment is consitutional. Unwise, but constitutional.

That said, it's interesting that virtually no one in this forum defends the underlying policy of excluding gay people from military service. That makes sense. You have to be a pretty strong bigot to say that the military should leave Arabic dispatches untranslated rather than let a gay soldier translate them.

So it's ironic that so many people cheer when law schools try to protest a military policy that so few people are willing to defend.

I hope the students continue to take matters into their own hands. They can put peer pressure on each other not to visit with the recruiters on campus. Another approach is for gay rights groups to sign up for the interviews en masse so that the recruiters' time at the school becomes useless.
12.7.2005 5:00am
Omar Bradley (mail):
Public Defender,

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 fkexibility 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 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 anatom ical 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.
12.7.2005 7:32am
Omar Bradley (mail):
Here's a great post at another blog that explains the real motives of FAIR:

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.

Godd points all.
12.7.2005 8:01am
Public_Defender:
"Unit cohesion." Didn't the military tell us that was why black people couldn't serve with black people? It turned out the military leaders were just expressing their person bigotry and dressing it up under the label "unit cohesion."

And would any soldier rather have no one to translate an Arabic-language dispatch than a gay person? "Gee Sarge, we don't understand what the enemy leader is saying to his fighters, but I sure am glad the brass fired those gay translators. They creep me out."

And why would it matter whether a JAG lawyer was gay? We are talking here about recruitment of military lawyers. Why sacrifice the quality of military lawyering just because some candidates are gay?

Finally, why would a single heterosexual man who enjoys pornography and visits strip clubs automatically be better JAG lawyer than a gay guy in a solid Massachusetts marriage?
12.7.2005 8:22am
MIchael Hertzberg (mail):
Maybe it's only me and Rosenkranz, but Ginsburg's questions seemed either preternaturally deep and subtle or they were incomprehensible. It sounded as though Rosenkranz wasn't sure either, because after each of her questions -- whose tone suggested she was throwing him a life line -- there followed an embarassing pause, during which I imagined him thinking, "What the hell is she talking about?"
12.7.2005 8:39am
Omar Bradley (mail):
PD,

You can use the "didn't they used to keep blacks out" defense for any form of discrimination. Those who advocate females in combat or who would advocate children in the military or would advocate the handicapped have used and will continue to use the same argument.(see the ADA/Rehab/Civil Rights argument above) All discrimination is not the same and if you can't appreciate the difference between selection on basis os sexual behavior and orientation and selection on race I regret to say that we're at loggerheads.

I'd only note that even during segregation there was not a de jure ban on blacks in the military. race was never seen as an absolute disqualifier(see the 54th Massachusetts during the Civil War and even Crispus Attucks, the participation of blacks in the military has always been recognized) It was merely whether they cold serve with whites, With gays it's about whther they can serve period. A totally different issue.

That being said, I said I fully suypport gay versions oft he navajo code talkers or British Ghurkas(ie distinct units) Or gay+women units. And I have to say that in the realm of purely JAG lawyers with no combat I do think you have a better point. The argument for exclusion has much less effect when it comes to administrative/civil affairs/noncombat positions.

In the end, though the Raise and Support armies and declare and conduct war clauses, combined with McCulloch and the traditional wide deference given Congress govern this case from a Legal POV.

By the way, PD, legal discrimination happens all the time in hundreds of contexts. Why are male and female bathrooms kept apart? Why are male and female schools established? Why does the gov't treat males and females differently with regards to age of consent and custody laws and countless other issues?

It's because they recognize the fundamental difference between male and female that ultimately rests on the sexual element. The same element that separates heterosexuals from homosexuals. It's nothing to be ashamed of it just is. Gays ARE different and there's nothing you can do about it. In most contexts it's irrelevant, but in the military one it matters.

Also, gays are of course free to join the mlitary provided they don't flaunt or advertise there sexuality, a perfectly reasonable request in my view.

By the way, do you support Bakke, Grutter, VMI, and other aff action and race cases that went against whites and men?
12.7.2005 9:42am
Anderson (mail) (www):
Even Dahlia Lithwick thinks "the law schools have no case."
12.7.2005 10:29am
Public_Defender:
Also, gays are of course free to join the mlitary provided they don't flaunt or advertise there sexuality, a perfectly reasonable request in my view.
This argument is so unhooked from reality that it's almost a lie.

No one would say a heterosexual "flaunts" or "advertises" his sexuality by getting married, wearing a wedding ring, or keeping a picture of his wife on his desk. Yet any of these activities could get a critically-needed gay translator drummed out of the service.

So, by common use of the words "flaunt" or "advertise," you are just plain dead wrong.

But I'm glad to see you couldn't give any justification for not hiring a gay JAG lawyer, which is the point of the Solomon Amendment. The military's refusal to open up non-combat positions to gays shows that their real motivation is bigotry, not "unit cohesion."

So until the JAG corps is willing to follow the same rules as every other employer, I hope students make it uncomfortable and futile for recruiters to interview on campus.
12.7.2005 10:37am
Tyrone Slothrop (mail) (www):
Maybe it's only me and Rosenkranz, but Ginsburg's questions seemed either preternaturally deep and subtle or they were incomprehensible. It sounded as though Rosenkranz wasn't sure either, because after each of her questions -- whose tone suggested she was throwing him a life line -- there followed an embarassing pause, during which I imagined him thinking, "What the hell is she talking about?"

I was there, and I agree.

I thought Clement did only an OK job with a strong case. The line in his opening about the military wanting access on an equal basis was just asking for trouble, and he got it. Tellingly, though, it really didn't go to the key issues -- Scalia and a couple other justices beat him up for that just because they could. Clement really didn't do well with the hypothetical from Stevens about the school that gives "separate but equal" access. That question is interesting, because it goes to whether what the law schools are doing when they host recruiters is speech or conduct.

Rosenkranz worked very hard to argue that the hosting is speech, not conduct, and he clearly had an uphill battle. I thought he did a good job with a hard argument.

One point that he kept trying to make, with some difficulty, was that Congress has not required the law schools to give the military access. They've required the schools to give the military access only if they give other employers access. That suggests that the Solomon Amendment is not about military necessity, but about Congress sticking it to the law schools for their principled position. Still not sure how far that gets FAIR, though.
12.7.2005 10:42am
Omar Bradley (mail):
PD,

Since you are unwilling to accept the notion that there is a fundamental difference between a person that feels sexual desire for someone of the same sex versus someone of the opposite sex, and that that difference plays an omnipresenr role in the military context, then we'll continue to talk past each other. I see a unalterable diffrence between flaunting heterosexuality and flaunting homosexuality. You don't. We'll have to leave it at that. Nevertheless, I sincerely respect your beliefs and admire you for stating them. I must however, respectfully dissent.

I can and have given many reasons for not hiring gay lawyers but since we're unable to agree on first principles we'll just have to agree to disagree. You keep saying vital gay translators like there are no other translators around and that only gays can do the job. The military is free to recruit from an enormous pool and there are countless arabic speakers out there so I don't quite buy your assertion that there excluding themselves from some exclusive source of translators.

As for the rights of persons to protest the military, as long as they don't violate the 1st amendment they can do whatever they want. But I don't see why the two can't and indeed shouldn't coexist. The military's ability to recruit and the law school's ability to protest. I see exchanges of ideas and views like that as vital to the American political system, and I welcome their happening.

By hte way, you still haven't told me your views on cases like Bakke, Grutter, VMI, FCC v Metro Broadcasting, Aderand, Rosenberger, Locke v Davey and other types of "freedom of association"/aff action cases? I'd like to hear your views on them, at least in general.

Again, I appreciate being able to have a civil dialogue and I do feel I've gained some valuable insughts and perspectives from your views, which I repeat my respect for. I hope you feel that you've been similarly enlightened or at the least can have the same respect for my views.
12.7.2005 11:25am
SomeJarhead (mail):
Gotta say it:

The military's refusal to open up non-combat positions to gays shows that their real motivation is bigotry, not "unit cohesion."

There are no non-combat positions in the Marine Corps.

Plus the point about it not being the military's rule, but the civilian Congress' (hey, you want to replace Congress with the military? I didn't think so.)

Nice try.
12.7.2005 1:06pm
Jack John (mail):
Scalia appears to agree and would undoubtedly prefer to resolve the case on this uniquely applicable basis, rather than get into the business of delineating Congress' coercive power as a general matter.

Yes, but Clement wants to defend the coercive power of Congress without invoking the power to raise any army. They want what would ordinarily be an abstract question decided and on the record; that is why Clement insisted there is no First Amendment clash. The First Amendment clash would be reserved for the power to raise armies power, which would necessarily be more powerful than Congress' general power to coerce. Oh yeah. Maximizing gov't power, baby.
12.7.2005 1:29pm
Michael B (mail):
"Maybe it's only me and Rosenkranz, but Ginsburg's questions seemed either preternaturally deep and subtle or they were incomprehensible."

Likewise, and I don't see anyone hazarding an opinion or a guess, either here or elsewhere on the web.
12.7.2005 7:28pm
Randy R. (mail):
This argument that the military has legitimate reasons for banning openly gay personnel has been thoroughly discredited by the Army Navy War College. A couple of years back, they did a full analysis of gays in the military. The SOLE reason they are barred in the US military is because the military believes it will adversly affect unit moral. So the College investigated the militaries of Israel, Britain, Canada, New Zealand and Australia because they all recently allowed openly gay men and women to serve, and because their military systems are similar to ours.

Their finding is that there is no evidence whatsoever that unit moral was adversly affected by allowing gays to serve. Officers who threatened to quit rather than serve with gays did not actually quit. In fact, the policy was implemented without any trouble at all. Officers report back that all military personnel have been able to serve alongside gay men and women.

The conclusion? That the ban on gays is based purely and solely on prejudice and homophobia. They chided the military by saying that if they insist on keeping DADT, then they should have the honesty and character to say that.

And in fact, our men and women are fighting alongside Britain in Iraq, which means they are fighting alongside openly gay men and women already. To date, there are no reports that there have been problems.

Unless you can come up with proof that gay men and women, even in combat situations create a problem for other military personnel, then you are basing your entire argument on prejudice, homophobia, and outdated fears of gay people. But it certainly has nothing to do with combat readiness.
12.8.2005 12:28pm