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Peter Schuck on Solomon:

At the risk of making this the all-Solomon all-the-time blog, in case you didn't see it, Yale's Peter Schuck has an interesting column today in the NY Times on the Solomon Amendment question, "Fighting on the Wrong Front":

But in their opposition to the Solomon Amendment, the universities are not only on shaky legal ground, as confirmed by the skeptical questioning they faced from the justices at oral argument, but intellectually inconsistent.

In the affirmative action cases involving university admissions that the Supreme Court decided in 2003, the universities invoked their educational expertise to defend a definition of applicant merit that disadvantaged whites and Asians; now they argue that the military may not invoke its warfighting expertise to define merit in a way that disadvantages gays.

The universities' position on government threats to cut off financing to enforce public policies is also inconsistent. A quarter century ago, many universities argued that Bob Jones University's tax exempt status and access to federal loans should be revoked because its racial policies violated civil rights law. Now the universities argue that their own funding should not be revoked for violating another federal policy.

***

Universities exhibit little intellectual or moral subtlety when they treat all who hold that view as a single species of invidious homophobes - regardless of whether their view proceeds from the kind of blind hatred that murdered Matthew Shepard or from ethical traditions or prudential concerns shared by many thoughtful, morally scrupulous people.

Universities should allow equal, unfettered access to their students by any employer whose policy with regard to sexual orientation is legal, so long as that policy is disclosed. The issue is not what the universities think about "don't ask, don't tell" - they have made that clear - but how their students view it.

A university's moral and pedagogical duty to its students is to cultivate their capacity for independent thinking, explain its own view (if it has one) and then get out of the way. The students' duty is to listen carefully - and then make their own decisions.

Master Shake:

Universities exhibit little intellectual or moral subtlety when they treat all who hold that view as a single species of invidious homophobes

Problem with this argument is that they don't "treat them as a single species of invidious homophobes" - It's just that each person's reasoning is irrelevant. They are just saying that you can't engage in the discriminatory action, regardless of your underlying reason.
12.9.2005 3:29pm
Nobody Special:
Exactly- the message is that any of the respectable reasons that Prof. Schuck cites are just as unacceptable and contemptible as "dem damn faggots!"
12.9.2005 3:36pm
Al Maviva (mail) (www):
Todd, I submit to you that they are perfectly consistent with the Court's understanding of the law, as borne out by Justice Scalia's comments in dissent in Lawrence. We now have a rational basis test that applies a stricter scrutiny than the strict scrutiny test.

>>>They are just saying that you can't engage in the discriminatory action, regardless of your underlying reason.

Which is a wholly irrational approach to anti-discrimination law, leading us into disparate impact as a stand alone cause of action, but there you are.
12.9.2005 3:45pm
Public_Defender:
Would the professor force Notre Dame to give eqaul treatment to NARAL, the Human Rights Campaign, or Catholics for a Free Choice?

Would the professor have forced a law school in 1960 to allow a firm with a perfectly-legal no-blacks-allowed policy to recruit on campus?

Sometimes morality requires us to be more vigilant than the law allows. Sometimes morality even requires us to be more vigilant than the law permits.
12.9.2005 3:49pm
Master Shake:

They are just saying that you can't engage in the discriminatory action, regardless of your underlying reason.

Which is a wholly irrational approach to anti-discrimination law

Huh? That's the ONLY way to enforce an anti-discrimination law. You can't have a law that says "You can't refuse to hire minorities if your reason is (reason x), but you can refuse to hire minorities if your reason is (reason y). What idiot is going to admit to using reason x?

For the same reason, you can't set up a system against anti-gay discrimination that depends on a person's subjective underlying reason for engaging in such discrimination. That's just obvious.
12.9.2005 3:58pm
Solomon Skeptic:
Didn't Dan Polsby write an article for 1983 Sup. Ct. Rev. criticizing the Bob Jones decision and suggesting the Court should have come up with a narrower holding? Sadly, the article isn't available on LEXIS.
12.9.2005 4:26pm
AppSocREs (mail):

Sometimes morality even requires us to be more vigilant than the law permits.

Translation: Let's not let something like legal principles get in the way of what me and my friends want.
12.9.2005 4:55pm
Biff:
the universities invoked their educational expertise to defend a definition of applicant merit that disadvantaged whites and Asians; now they argue that the military may not invoke its warfighting expertise to define merit in a way that disadvantages gays.

Affirmative action "disadvantages" only whites and Asians who are borderline admissions cases anyway, and who will certainly be accepted to a school in the next academic tier. This is not remotely comparable to a wholesale policy of excluding (and expelling) anyone who is discovered to be gay from the military.

Further, the motivation behind affirmative action is not to "disadvantage" whites and Asians, but to remedy perceived disadvantages that other minority groups already have. (yes, yes, I am aware of the "diversity" argument and I do know it's BS)

Also, it gets tiresome hearing one political side complaining about the other side's "inconsistency" when your views are also inconsistent in precisely the opposite way.
12.9.2005 5:00pm
Unnamed Co-Conspirator:
I should be excused from paying federal income taxes because I think don't ask don't tell is morally wrong, regardless of whether it's legal. And since any reduction in anyone's tax liability is the same as a gift from the government (hey, if it's true when contemplating a reduction of tax rates for the "rich," then it's true here, too), there's no real difference between my position and that of a university that wants to exclude military recruiters. So, if I get to refuse to pay federal income taxes, then no university should have to permit military recruiters on campus. This isn't really that hard, is it?
12.9.2005 5:24pm
Bottomfish (mail):
Why don't we deal with the issue Schuck raised and take a look at "homophobia"? People have doubts about homosexuals because of the goings-on at Gay Pride parades. This conduct is deliberate and obviously intended for public view. Being black or female is a fact of your birth. Gyrating around to the sound of deafening rock with nothing on but a pair of lavender underpants (stuffed with something foreign in the expected place) is not.
12.9.2005 6:40pm
Biff:
Why don't we deal with the issue Schuck raised and take a look at "homophobia"? People have doubts about homosexuals because of the goings-on at Gay Pride parades.

That's true, homophobia did start with gay pride parades. Before that, there was no antipathy towards homosexuals whatsoever.

This conduct is deliberate and obviously intended for public view. Being black or female is a fact of your birth. Gyrating around to the sound of deafening rock with nothing on but a pair of lavender underpants (stuffed with something foreign in the expected place) is not.

Exactly. If we let gays into the military, next thing you know they'll be replacing berets and fatigues with feather boas and chaps.
12.9.2005 7:09pm
Bottomfish (mail):
You have not dealt with the issue at all. There is a long tradition associating homosexuality with sexual exhibitionism in public, going back to the Bible. I'm sure that much of this is stereotyped, and certainly there is heterosexual exhibitionism as well. But if homeosexuals want to be perceived as different from stereotypes, why does the stereotyped behavior occur in such a deliberate, public fashion? Why push the stereotype in front when the supposedly the correct position is to deplore stereotypes?
12.9.2005 7:40pm
Randy R. (mail):
Trouble is, there are plenty of homosexuals, such as myself, who do NOT act like stereotypes. The problem is that you don't see us precisely because of that. We get up in the morning, go to work, shop for groceries, pick up the dry cleaning, then head home for dinner and tv.

Sorry, but your logic could say this: Christian evangelists are always going around bossing everyone else's behavior. They all do that. If they don't want people to think of them as busy-bodies, they shouldn't do that, but I never see any evangelicals who act normal.

And what is this business of long tradition of us gays and public exhibitionism? Where in the Bible are we flaunting it?
12.10.2005 1:56am
Randy R. (mail):
The real problem is the professor where he implies that homophobia is an "ethical tradition or prudential concern shared by thoughtful moral people." Slavery was an ethical tradition for centuries, supported by thoughtful moral people. Didn't make it right, and it hardly made life any easier for the slaves.
12.10.2005 1:58am
Not Biff:
Also, it gets tiresome hearing one political side complaining about the other side's "inconsistency" when your views are also inconsistent in precisely the opposite way.

It also gets tiresome hearing the left rely on comments like this rather than address the merits of the argument.
12.10.2005 2:45am
Bottomfish (mail):
The Gay Pride parades are organized by advocates, who, I should think, would be aware of the unfavorable implications of gays publicly acting in accordance with stereotypes. But the parades go on. I am driven to the conclusion that the advocates in fact approve of the stereotyped behavior and see it as a vital part of "gay culture." In our politically correct world it is of course the rankest heresy to come out and say that you find someone else's culture repellant. Presumably there is no alternative to being "inclusive". So the advocacy amounts to a way of imposing one's tastes on other people.

Certainly the Christian evangelicals can get bossy. But I haven't seen them trying to boss the military around as the law schools are trying to do. There are many of them but they do not enjoy the favor of our elite.

The sexual exhibitionism of which I speak is condemned in the Book of Ezekiel, and mentions both hetero- and homosexual excess. It seems to me very clear that the author of this work (as far as I am concerned just another member of homo sapiens) sees homosexuality as the culmination of excessive sexual appetite in general. The view of homosexuality as a form of uncontrolled appetite is best evidenced by the fact that throughout history homosexual lovers have had the status of mere bed-mates while heterosexual marriage has had an entirely different status. You may say this is sterotyping. OK, now please re-read paragraph #1.
12.10.2005 7:11am
jb9054 (mail):
Aren't we getting way off topic here? Are the merits of homosexuality relevant to this case? I'm not a lawyer, so correct me if I'm wrong, but are not these the facts of the case?
1. Discriminating on the basis of sexual orientation is legal in the federal code.
2. Congress passed, and President Clinton signed, the Don't Ask Don't Tell legislation. It has not been repealed or declared unconstitutional.
3. Nobody is telling Harvard that they have to allow military recruiters on campus.
4. The Feds are telling Harvard that Federal largesse will be directed elsewhere under the terms of Solomon if Harvard continues to exclude military recruiters.

That's all there is to it. All this about feather boas, homophobia, the Bible, ad nauseam is not relevant to the issue under discussion. Disappointing for a legal blog.
12.10.2005 1:00pm
Bottomfish (mail):
I'm sorry that the discussion seems to have wondered off course, but there is a reason why I began with the Gay Pride parades.

Your numbered points are obviously correct. The problem is that most of the time they are ignored even by the law schools, who, I would think, would know better. You have to ask why the points are ignored. The reason, I think, is that the military position is seen as merely a form of racism practiced against a minority, except that in this case the -ism is "homophobia." Since the legal situation is clear, why have the law schools gotten themselves into this mess?

It seems clear that the driving force here is the civil rights movement. For the liberal lawyers this was a resounding success. The analogy of homosexuals with blacks and women is taken for granted. But it is not a correct analogy, and this has to be recognized.
12.10.2005 2:16pm
Public_Defender:
That's all there is to it. All this about feather boas, homophobia, the Bible, ad nauseam is not relevant to the issue under discussion. Disappointing for a legal blog.
Are you saying we can't discuss whether two laws pushed by the military (Don't Ask/Don't Tell and Solomon) are wise or moral?

You are doing what most conservatives in the comments to this blog do--you are trying to avoid having to defend the indefensible.

So far, no one has given any argument as to why the military should want to discriminate against gays when it hires lawyers. Why is it better to have a single heterosexual man who visits strip clubs and enjoys pornography than a married gay lawyer, especially if the married gay guy is a better lawyer?

As to those who support Peter Schuck's position, do you think Notre Dame should be forced to let recruiters from pro-choice and anti-Catholic groups do interviews on campus?

To those who say schools should let in any employer who's policies are legal, would you say that law schools in 1960 should have been forced to let openly racist law firms recruit on campus?
12.11.2005 10:33am
Omar Bradley (mail):
Notre Dame is a private University. If they don't want to allow pro choice recruiters, they don't have to. The govt isn't condintioning aid on ND allowing pro-choice recruiters. If ND was in a poisitiob to accept public money, and that acceptance was conditioned on them allowing a group that espouses pro choice views, then I'd say they'd be in the same position as FAIR.

They don't have to accept the group, but then they don't get the money. It's pretty simple. Right now abortion is legal and the gov't can't do anything about it. let's say that ND was getting federal money and then said that we won't allow federal access anymore because the gov't represents legalized abortion and carries out the death penalty(bnoth of which we're opposed to). do you think they'd be allowed to keep getting the money while not allowing federal access? Of course not. The same rules apply.

Also, you haven't even gotten in to the "raise and support armies" clause which clearly controls this case.

Further you haven't answered the question about taxes. Under your theory, someone who opposes DADT could refuse to pay tazes and the gov't couldn't do anything abuot it. Is that what you contend? If not, what's the difference between that situation and this one?
12.11.2005 11:05am
Omar Bradley (mail):
I mean the military doesn't allow blind/handicapped people or women in combat either. Let's say FAIR decided that they would refuse to allow the military recruiters because the discriminate against women or the handicapped, would you have the same position?

Should the law schools be allowed to deny access to the military because they discriminate against women and the disabled and still be allowed to receive federal funding?

What is the difference between not allowing homosexuals and not allowing the blind/papraplegic/handicapped/disabled, not allowing women in combat, not allowing the elderly, etc...?

So, FAIR's argument is full of it, It's not about DADT, it's about being anti-military. If the military dropped DADT, FAIR would sue about women in combat. If they dropped that, they'd sue about he handicapped. And so on and so on. It's all about the law schools wanting to have their cake and eat it too. They want to be able to deny access to the mlitary and to still receive the funding. It just doesn't work that way.

As for your "1960 racist" claim. Most segregation had been declared illegal by then. However, the military was segregated during WW2. If FAIR brought a similar suit in 1944 and said we won't allow the military because they violate our nondiscrimination policy, the decision would be the same as it is now. If they don't want the military, they don't get the dollars.(In fact, under the raise and support armies clause I'd say the gov't can probably require the law schools to host the recruiters regardless of the funding issue, if Congress so decides) In the meantime, they can work to repeal DADT. Until they do, though, it's perfectly legal.
12.11.2005 11:18am
Public_Defender:
Omar,

First, you did not explain why sexual orientation mattered for military lawyers.

Now, to your other points. Harvard is private, just like Notre Dame. So the public/private distinction is a red herring.

Professor Schuck argued that universities should, as a matter of policy, allow recruiting by groups with policies that are repugnant to the university. The question is, do you conservatives only apply this logic to policies you support? Or do you agree that Notre Dame should let Catholics for Free Choice and NARAL recruit on campus?

And you are wrong. In 1960, racial discrimination by private organizations was perfectly many places. It didn't become illegal until the 1964 civil rights laws. Should schools, as Professor Schuck's logic suggest, have let openly racist employers recruit?

To take it a step further, would it have been good policy for, say, the State of Alabama to force its law schools to let racist employers recruit on pain of losing all state funding and contracts? After all, private segregation was legal.

When debating whether it's good policy to punish schools for not admitting anti-gay recruiters, your side must be able to defend the wisdom of Don't Ask/Don't Tell and Solomon.

The policy question is also important when weighing the appropriateness of other ways of discouraging recruitment by anti-gay employers. For example, pro-gay-rights students can flood the JAG's recruiting slots, wasting all of his time. Pro-gay-rights students can also use peer pressure to keep their colleagues from interviewing.

And once again, I agree that the Solomon Act is constitutional, I just think it's bad policy. You argued why you thought it was consitutional, not why you thought it was good policy.
12.11.2005 4:03pm
jb9054 (mail):
PD, I never said that the issue can not or should not be discussed. The point that I unsuccessfully tried to make is that the forum to discuss this matter should not be the Courts. If you want discrimination on the basis on sexual orientation to be illegal, convince the legislature to outlaw it, with a Consitiutional amendment if necessary. If you find DADT offensive, harmful, immoral or otherwise objectionable, convince the legislature to repeal it.

Your questions are valid, and were discussed (and in my opinion properly so) when Congress was considering the relevant legislation. Ditto for President Clinton in deciding to sign or veto the DADT law.

What "most conservatives" (as you refer to us) object to is the use of the judicial branch to obtain legislative results that the legislative branch chooses not to provide.

When you write:

you are trying to avoid having to defend the indefensible.


So far, no one has given any argument as to why the military should want to discriminate against gays when it hires lawyers. Why is it better to have a single heterosexual man who visits strip clubs and enjoys pornography than a married gay lawyer, especially if the married gay guy is a better lawyer?


you are trying to rewrite history. The arguments were made, on both sides of the question, when the Congress passed the DADT legislation. There were committee meetings, meetings with lobbyists for both sides, letters written to representatives, the whole works, just like with every other piece of legislation. The proper forum now for those arguments remains the legislature. Convince your representative that Solomon should be repealed. He or she can introduce a bill to do just that, it can be debated in committee, then voted on by the House and Senate, and then signed by the President. Problem solved. That sounds like a lot of work. It is. It's much easier to accuse "most conservatives" of not doing what we did a decade ago to achieve our legislative aims in the legislature, instead of whining to the courts.
12.11.2005 5:42pm
Bottomfish (mail):
"Why is it better to have a single heterosexual man who visits strip clubs and enjoys pornography than a married gay lawyer, especially if the married guy is a better lawyer?"

You don't know whether the military would show such a preference. If they knew all the facts they might well end up rejecting both. You are aware of the miitary concern for decorum in one's personal conduct, and although not myself a member of the military, I'm sure that there is concern about how homosexuals would behave. So the military is engaging in stereotyping? Again, why not consider the Gay Pride parades, since I discussed them previously? Yes, there is a right to "freedom of expression." But that doesn't mean everyone has to like or want to associate with your mode of expression.
12.11.2005 7:13pm
Omar Bradley (mail):
PD,

If the gov't conditioned money on ND accepting Pro Choice recruiters, that's perfectly legal. It would be like if Notre Dame tried to ban gov't recruiters during the pro choice Clinton yrs but still demanded they get gov't money. No one would buy that.

Again, imagine this is 1944 and Harvard refuses recruiters because the military enforces segregation. But they still want the money so they go to the SCOTUS. What do you think the decision would be? My guess? 7-2 for the gov't.(maybe Murphy and Jackson dissent)

You still haven't addressed that even if the DADT thing were resolved, FAIR would concoct untold other reasons to oppose the military. That's what this is about, not DADT.

We both agree on the constitutionality of the case. We just disagree on the policy/wisdom of it. But it's not the SC's job to decide cases based on policy. It IS theirt job to decide them based on the Constitution. My suggestion to you is to stop worrying about this case and to start worrying about electing Hillary or Mark Warner in 2008 and taking back the Congress. Then yo ucan get DADT repealed and change the miltary's gay policy.
12.11.2005 9:52pm
Brian Dell:
"you can't engage in the discriminatory action, regardless of your underlying reason."

So... I can't engage in actions you don't like regardless of whether logic would fully justify my action. If one gives discriminators an opportunity to justify their behaviour, won't they fail at every instance if it is truly always unjustifiable?

"your side must be able to defend the wisdom of Don't Ask/Don't Tell"

Ah, yes, today, it is the the wisdom of Don't Ask/Don't Tell. Tomorrow, it will be the wisdom of the military's association with US imperialism. The day after that, every employer with even a remote connection to some of right wing philosophy will be booted off campus. The only way to put a limit to this to put a limit on the extent to which employer policy is relevant. This doesn't even get into the fact that in this case the university is taking a benefit from the recruiter it is discriminating against.
12.12.2005 1:46am
Public_Defender:
Omar,

I agree that the Supreme Court shouldn't decide policy. But it's interesting that so few people (including you) are willing to defend policy behind the Solomon Amendment and Don't Ask/Don't Tell (especially when applied to military lawyers).

And again, Professor Schuck argued that regardless of legal/funding consideration, schools should permit organizations with repugnant values to use camous recruiting facilities. You are only answering the legal question.

As to your argument that schools would not let the military come to campus even without Don't Ask/Don't Tell &Solomon, I say let's find out.

Brian,

What other right wing groups have been excluded from campus? This conservative cult of victimhood is kind of pathetic. Some conservatives are so good at playing the victim card that they would make Al Sharpton blush.
12.12.2005 7:36am