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Rumsfeld v. FAIR:
The Supreme Court has decided Rumsfeld v. FAIR, the Solomon Amendment case, and has reversed the Third Circuit and upheld the statute in a 21-page opinion by Chief Justice Roberts. The vote was 8-0, with Justice Alito not participating. From the conclusion of the opinion:
  In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect. The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment. To the extent that the Solomon Amendment incidentally affects expression, the law schoolsÂ’' effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.
  Thanks to Howard for the link.

  UPDATE: This outcome wasn't hard to predict, but I thought I would note that my crystal ball was pretty much right on this one. From May 2005: "Gazing into my crystal ball, I predict that the Court will reverse. I don't think it will be close, either: maybe 9-0, with a concurrence or two." No concurrences were filed, but then the new Chief Justice wasn't on the bench when I made the prediction.
Mackey:
Disappointing in its result, but hardly unexpected. But now the fun begins. First, will FAIR be taught in Appellate Litigation classes as a sterling example of how not to give an oral argument (or, alternatively, how one knows when a case is not going your way)? Much more interesting, will the government go after the schools that actually violated the Solomon Amendment before relevant injunctions took effect? A little 'scorched Cambridge' policy?
3.6.2006 10:33am
ThirdCircuitLawyer (mail):
Mackey,

The litigants in FAIR knew their argument was bogus: they weren't supposed to win at the Court of Appeals level, as the point of the litigation was to "raise awareness" about the Solomon Amendment. The weird thing that happened was that two Third Circuit judges actually bought the argument, setting up Supreme Court review that had an inevitable result.
3.6.2006 10:37am
Justin (mail):
This decision flat out ignores the fact that the regulation is not content neutral - that if the law school's opposition is to use of military force generally, it may keep the military off of its property, but if the opposition is only to the discrimination, it may not.

Though that makes the case much "easier", it's intellectually dishonest in my view. Clearly the more liberal members of the Court were worried about creating precedent by objecting on that grounds.

I think the easiest, and probably the most appropriate, response was to ignore the Constitutional issue and focus on the legislative intent - the legislative history here shows, in the face of ambiguity, that this was not what Congress intended when it granted Article II entities the power to withhold federal funding.
3.6.2006 10:39am
Mackey:
ThirdCircuitLawyer,

As a student once actively involved in my school's consideration of the issue, I'd temper your assertion that the litigants in FAIR knew it was "bogus." I recall apprehensions about the ramifications of various legal theories but I also recall a genuine commitment to the issue.

More importantly now, I also recall several students, faculty and administrators, from several reputable schools, suggesting that at least Harvard had overstepped in its rejection of the Solomon Amendment. This carried the suggestion that they either did then or would come in the future to "regret" their decision. Though I suppose no one likes losing Supreme Court litigation, I'm genuinely curious as to whether those dire consequences will come to fruition. It's a more political than legal question, but still a seemingly interesting one.
3.6.2006 10:43am
Joel B. (mail):
While granted, there are way too few data points to note much of a "trend" it does seem like even on contentious issues, at least for this term, the court seems to be issuing more unanimous decisions. It also seems slightly more conservative. It seems as though Roberts may be deftly handling the position of Chief Justice and helping to more unanimously shift the court to the right.

Although I would expect the liberal justices to break from unanimity in extremely contentious cases (or conservatives conversely) it does seem as though there is a greater trend towards agreement.
3.6.2006 10:45am
Eh Nonymous (mail) (www):
Fun and all, but hardly dispositive of the controversy. FAIR was the facial challenge with, as the opinion points out, the weakest claims. Let's see what's done with the other cases brought by individual professors, such as the Burt, SAME, and Burbank cases. Solomon Response dot org has the complaints and some briefs.

FAIR was more Dale and less Unconstitutional Conditions, right?
3.6.2006 10:45am
ThirdCircuitLawyer (mail):
Mackey writes:

As a student once actively involved in my school's consideration of the issue, I'd temper your assertion that the litigants in FAIR knew it was "bogus." I recall apprehensions about the ramifications of various legal theories but I also recall a genuine commitment to the issue.

Mackey, no one questions "commitment to the issue." FAIR members and proponents are nothing if not committed to the cause. But most members and faculties joined the litigation to protest the Solomon Amendment as a polotical statement, knowing full well that the legal argument was quite weak and would almost certainly lose. Put another way, the FAIR litigation wasn't so much about free speech as it was free speech: the case represented the members' symbolic endorsement of gay rights, and its resulting opposition to the Solomon Amendment. There are incredibly deep commitments to that cause, but that has little to do with the legal arguments made to try to turn that cause into a constitutional case.
3.6.2006 10:52am
Eh Nonymous (mail) (www):
I change my mind; at pages 9-10 the opinion appears to pretty firmly foreclose the Unconstitutional Conditions approach: If it can be done directly, then it can be done indirectly; the 1st Amendment would not prevent Congress from... ergo.

It's dictum, but it also casts rather a lot of doubt on the validity of that particular claim under the circumstances.
3.6.2006 10:54am
Roach (mail) (www):
These law professors are so full of it. Look at Dale. There the inevitable collision course of voluntary expressive association and antidiscrimination laws locked horns and most of these folks opposed the Boy Scouts. Here a nondiscrimination principle in favor of the military is opposed by the alleged right to express opposition to the military's own discriminatory policies. The mere presence of one of these chaps on campus will sully the place, though it's not as if they're being made members or professors in contrast to the boy scouts. But here expressive association is suposed to be sacred. Give me a break.

From Roemer to Dale to FAIR the organizing principle is the sacredness of homosexuality. Some legal principle, that.
3.6.2006 10:55am
Mackey:
ThirdCircuitLawyer,

I think our disagreement is a pretty minor one. It seems to me you're reducing the FAIR position to a purely political one and I don't think that's warranted. I'd grant that there were purely political/awareness-raising motives involved, that there were serious apprehensions about both the strength and the consequences of the legal theories involved and that many faculty members were personally motivated by values like justice, academic freedom, etc. I just don't think any of these translate into--my words here, not yours--any disingenuousness or lack of good faith in pressing the legal claims they did. I take seriously cautions against extreme analogy on this blog, but I find their claims no more "bogus" than the idea that schools in 1955 D.C. could not segregate. It's only the 'intentional bogusness' of the FAIR position with which I took umbridge.

And it wasn't even my question, either. Seriously, will they go after Harvard (and any other pre-injunction Solomon violators)?
3.6.2006 11:01am
Tyrone Slothrop (mail) (www):
at pages 9-10 the opinion appears to pretty firmly foreclose the Unconstitutional Conditions approach: If it can be done directly, then it can be done indirectly; the 1st Amendment would not prevent Congress from... ergo.

It's dictum, but it also casts rather a lot of doubt on the validity of that particular claim under the circumstances.


Roberts' comments at oral argument made it clear that those were his views, so it should not be surprising to see that thought in dicta, but it's also not the basis for the Court's decision. Roberts obviously chose to write for a unanimous majority rather than to write a decision pushing those views onto which fewer justices would sign. Which strikes me as a good thing.

This decision flat out ignores the fact that the regulation is not content neutral - that if the law school's opposition is to use of military force generally, it may keep the military off of its property, but if the opposition is only to the discrimination, it may not.

Though that makes the case much "easier", it's intellectually dishonest in my view. Clearly the more liberal members of the Court were worried about creating precedent by objecting on that grounds.


Yes. But since FAIR was going to lose, better that those grounds were not addressed.

[W]ill FAIR be taught in Appellate Litigation classes as a sterling example of how not to give an oral argument[?]

What do you mean, Mackey? I thought Rosenkranz did a better job with a losing argument than Clement did with a winning argument.
3.6.2006 11:06am
Houston Lawyer:
Harvard can still keep the military off campus, it will just have to give up government funding to so so. Some organizations have been willing to forego government money because it inevitably comes with strings attached. Harvard has no such scruples in this matter.
3.6.2006 11:06am
BossPup (mail):

While granted, there are way too few data points to note much of a "trend" it does seem like even on contentious issues, at least for this term, the court seems to be issuing more unanimous decisions. It also seems slightly more conservative. It seems as though Roberts may be deftly handling the position of Chief Justice and helping to more unanimously shift the court to the right.

Although I would expect the liberal justices to break from unanimity in extremely contentious cases (or conservatives conversely) it does seem as though there is a greater trend towards agreement.


I think you might be seeing a trend that is not really there. My guess is that the recent 8-0 opinions are a function of the nomination and confirmation process. The court most likely decided to hold off deciding any potentially contentious issues until they were back at full strength. If I am right, then the Court should return to its usual fractiousness for all the cases that were argued after Justice Alito was sworn in.
3.6.2006 11:06am
ThirdCircuitLawyer (mail):
Mackey,

Perhaps we can agree on this: Most members of FAIR thought that their arguments were not supported by existing law, and that it was extremely unlikely -- but not theoretically impossible-- that they would win. They joined the case to fight the cause of gay rights, not because they felt that the Solomon Amendment was actually interfering with their speech. If you agree with this, I would be happy to withdraw my "bogus" reference and substitute it with this more nuanced description.
3.6.2006 11:08am
JohnAnnArbor:
If colleges have a problem with military policy, take their argument to Congress, the only ones who can change that policy. The military cannot change such policies on its own.
3.6.2006 11:08am
RM (mail):
Well, Harvard can keep the military off campus so long as Congress doesn't command it to accept the military, as this decision holds that it can. Isn't that the slightly unexpected addition to this opinion? I think we all expected that the amendment would be upheld, but the court's opinion seems a little broader than I thought, at least.
3.6.2006 11:09am
Mackey:
---
[W]ill FAIR be taught in Appellate Litigation classes as a sterling example of how not to give an oral argument[?]

What do you mean, Mackey? I thought Rosenkranz did a better job with a losing argument than Clement did with a winning argument.
---
That might be true. I think I neatly equivocated on that statement in the parentheticals. Rosenkranz caught a lot of flack for his oral argument and it appeared clear to practically everyone that the questions from the Court indicated a strong inclination towards the government position. While I don't think this inclination was the product of Rosenkranz' argument, I think it became manifestly clear during his oral argument--to Rosenkranz as well--that things were not going smoothly. Oral arguments by no means doomed the case but it does seem safe to suggest they represented a good example of oral arguments going very badly.
3.6.2006 11:13am
Richard Aubrey (mail):
From the outside, it looks a bit different.

It looks as if Harvard--and by extension any other school using the same argument--despises the military (confirming examples abound) and is using the gay issue as an excuse.

If Harvard has any smarts, they'll try to counter that impression, although I have no idea how.

Simply restating their ostensible position won't do, since, if it's a lie to begin with, it's a lie to end with. They'll need to take concrete action.

I'd sure like to see that.
3.6.2006 11:30am
Mackey:
ThirdCircuitLawyer,

Ha. I'm really enjoying this exchange, btw, and hope you are as well. We're not quite there on agreement though, so maybe some more negotiation...

Mackey,

Perhaps we can agree on this: Most members of FAIR thought that their arguments were not supported by existing law, and that it was extremely unlikely -- but not theoretically impossible-- that they would win.

Agreed, more or less. The only equivocation I have here is with respect to Dale, for example. Dale was existing law which it could be argued, and member of FAIR may actually and legitimatley believe, supported the position they were taking. Of course, many of these individuals were and are not big supporters of the result or reasoning in Dale. So, how about they thought it was "not supported by existing law" or "supported by existing law they did not themselves support"?

They joined the case to fight the cause of gay rights, not because they felt that the Solomon Amendment was actually interfering with their speech.

Did you think I'd agree to this statement as well? Well, I don't. First, I certainly think it's inaccurate to say they did not believe the Solomon Amendment was interfering with their speech... at all. What I take your assertion to really mean is the slightly more limited version that they did not believe the Solomon Amendment was actually unconstitutionally interfering with their speech, with some nod being made to the legal issues we are discussing here. I don't even think this is terribly accurate, in so far as the assertion seems to be that expansive views of law are not seen as what law really is at the time. But civil rights advocates very frequently maintain that existing law is imperfected and that constitutional law really compels a different result. I think this is about as "bogus" as FAIR gets, and no more.

If you agree with this, I would be happy to withdraw my "bogus" reference and substitute it with this more nuanced description.

"What's in a name?" I won't hold you to the word "bogus" but think position you're staking with or without the word remains slightly overbroad. Hardly the end of the world though and, again, I have enjoyed this exchange.
3.6.2006 11:30am
Tyrone Slothrop (mail) (www):
Oral arguments by no means doomed the case but it does seem safe to suggest they represented a good example of oral arguments going very badly.

Did you see the oral argument, or were you just reading press accounts? There's a difference between arguing poorly, and arguing a poor hand.
3.6.2006 11:31am
Robert Schwartz (mail):
Roberts is running quite a streak of unanimous opinions. Is that a change in management style? Or do the 8-0s get decided first.
3.6.2006 11:35am
ThirdCircuitLawyer (mail):
Mackey,

When a legal argument becomes "bogus" is in the eye of the beholder, I suppose. For example, I would say that John Yoo's Article II theories are "bogus." I suppose you would say that Yoo's theories just are not currently supported by existing law, and that it is laudable that Yoo propounds this theories because this is the only way activists will ever create constitutional change. But I'll stick with "bogus."
3.6.2006 11:39am
Medis:
I'm pretty thrilled with this opinion. I thought Dale was a poorly-reasoned decision in that far too much deference was shown to the nominal representatives of the Boy Scouts on the issues of: (1) what (if any) message about homosexuality the Boy Scouts as an organization had adopted; and (2) how (if at all) having a Scoutmaster who was gay would impair that message.

This decision does not overrule Dale on those issues, but I didn't hope for that much. Nonetheless, in discussing Dale, the Court in FAIR states:

"The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra at 16, so too a speaker cannot 'erect a shield' against laws requiring access 'simply by asserting' that mere association 'would impair its message.' 530 U.S. at 653."

This discussion essentially lifts the least deferential line out of Dale with respect to Issue #2. And it does so without bringing along what I consider to be some of the objectionable portions of Dale. Here is the original passage in Dale in context (citations omitted), to which the Court in FAIR cited:

"We must then determine whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not 'promote homosexual conduct as a legitimate form of behavior.' As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression. That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have 'become leaders in their community and are open and honest about their sexual orientation.' Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

So, hopefully FAIR represents an implicit cutting back on the deferential reasoning in Dale, and hopefully the courts will be more careful in the future when determining whether or not something truly does "force [an] organization to send a message" it does not want to send.
3.6.2006 11:42am
Mackey:
The Solomon Amendment, in pertinent part, states that "no funds described in subsection (d)(2) may be provided by contract or by grant" to an "institution of higher education" that "has a policy or practice that prohibits or in effect prevents" "access to students...for purposes of military recruiting."

1. There can be very little doubt Harvard, at least, fits this bill. I don't mean to single out Harvard, it's simply the school I'm aware of that, unless I'm mistaken, took pre-injunction action revising its policy towards military recruiters. If that's accurate, they appear to have a policy that in effect prevents access to students for purposes of military recruiting.
2. The consequence of a determination by the Secretary of Defense that Harvard maintains such a policy or practice is that "no funds...may" be given to it. In other words, it's not even so simple as Harvard having a present election to choose federal funds or its nondiscrimination policy. Instead, it seems that having chosen to attempt adherence to its policy it has exposed itself to a determination by the Secretary of Defense that could deprive them of funding.
3. This determination will not necessarily be made, even if Harvard fits the bill. One should note the Solomon Amendment's provisions on ROTC which have gone (thankfully) unenforced against the several schools which prohibit ROTC on campus.

My question is: Will the Secretary of Defense make this determination?
3.6.2006 11:43am
Steve:
One commentor is convinced that Harvard is committed to the "sacred" nature of homosexuality. Another believes that gay rights is but a fig leaf for Harvard's true anti-military agenda. From where I sit, it looks like a lot of people just enjoy being anti-Harvard.

Of course, being a public school guy myself, I really don't have a problem with that.
3.6.2006 11:43am
The Drill SGT (mail):
As a non-lawyer, former officer, and husband of a serving JAG officer, I'm pleased with the decision. I also agree with Richard, that it is more the underlying loathing of the military than a gay rights thing that causes Law schools to restrict military access.

It will be interesting to see how fast universities, and via what verbal gymnastics, reverse course and give up their principles to keep those truck loads of federal cash coming in.

Like that old story (I think GB Shaw) about the man who approached the woman and asked for sex in return for 1 million pounds, she said yes. He then asked if she would sleep with him for 10 pounds, enraged, she asked "what kind of a woman do you think I am". To which he replied, "Madam, we've already determined that, we're just haggling over price".

Me thinks the universities will give up their virtue for the right price.
3.6.2006 11:50am
Anderson (mail) (www):
No surprise. But I'm happy to see that the Court remembers the "broad and sweeping" Article I powers of Congress over the military. That could be a useful citation in the near future.
3.6.2006 11:53am
Mackey:
Tyrone,

I did see the oral arguments. I'll admit, for what it's worth, that I had read up a bit on how they went before I got a chance to see them for myself.

I'd also agree that:

"There's a difference between arguing poorly, and arguing a poor hand."

At the same time, I don't find it hyper-critical to suggest that, if you're arguing a poor hand, you should be prepared to defend it forcefully. Rosenkranz appeared at times almost surprised to hear critical questions--particularly from the more receptive members of the Court. Given the apprehensions of so many equally receptive scholars, I don't think this shock was warranted. Arguing a poor hand without realizing its impoverishment seems to me to be arguing poorly.

I should add I in no way meant to attribute blame for the loss to Rosenkranz. I don't think it was a very effective oral argument but I think he was flustered by the reality that the suit was always an uphill battle and the Court's questions suggested very strongly they would not reach the peak. And, yeah, I thought this reaction was pretty evident in the arguments themselves and became reflected in them over their course.
3.6.2006 11:54am
stevesturm:
I doubt this argument is going to find much acceptance here among you esteemed legal types, but I think judges ought to be removed from the bench for incompetence - and getting smacked down 8-0 by the Supreme Court is sure a sign of incompetence.

The panel on the 3rd Circuit couldn't even get Ginsberg and Souter to buy their arguments.... how lame can (a liberal) get?
3.6.2006 11:59am
BCLaw:
Unfortunately, what this case comes down to is homosexuality. If the military refused to allow African-Americans to serve in the military, and the law schools refused to allow military recruiters on campus in protest, would anyone doubt that the outcome would be different?
3.6.2006 12:03pm
Tyrone Slothrop (mail) (www):
I didn't think that Rosenkranz got flustered or surprised. I think he faced a lot of tough questions, and did about as well with them as one could. He kept trying to hit the point that Congress was not requiring that schools grant access to the military, but only requiring that schools grant access if they were granting access to other employers, a fact which exposes the policy as more of a rebuke to law schools engagine in politically unpopular speech and less of a policy decision driven by military exigencies. That he got somewhere with this argument can be seen in its absence in Roberts' decision for the Court. But the votes weren't there, so it wasn't a winner.
3.6.2006 12:04pm
Nobody Special:

Unfortunately, what this case comes down to is homosexuality. If the military refused to allow African-Americans to serve in the military, and the law schools refused to allow military recruiters on campus in protest, would anyone doubt that the outcome would be different?


Racial minorities are a protected class under the constitution; sexual minorities are not.
3.6.2006 12:05pm
BCLaw:
Nobody Special,

You made my point.
3.6.2006 12:08pm
volokh watcher (mail):
Hey Orin --

What's up over at Balkinization? I can't seem to access it. Has retribution started?
3.6.2006 12:11pm
Daniel Chapman (mail):
I think his point was that he didn't understand your point.
3.6.2006 12:11pm
Jeek:
If the military refused to allow African-Americans to serve in the military,

The military does not refuse to do anything. They do what they're told. As soon as Congress or the President change the policy on gays, the military will salute and say yes sir. Harvard etc. are firing at the wrong target, and it's difficult to believe they don't know this.
3.6.2006 12:14pm
Apu (mail):
1) So, stevesturm, should Fifth Circuit Judges get removed from the Bench when the (also-conservative) Supreme Court reverses it 9-0 in a habeas case?
2) By the way, the gloating about how this will show that law schools value money more than principle is wrong. The law schools have no real power to forego federal money; if they continue to defy the Department of Defense, they would also force their med schools, science departments, etc., to forego federal funds. The law schools aren't permitted by the law (or their corporate structure, I guess) to limit any loss of funds to their own self.
3) I respectfully disagree that anti-military animus motivated the plaintiffs in this case -- I think those suspicions are from people viewing this litigation as one with the events of the early 1970's. I have no doubt that some individuals at the plaintiff law schools have expressed anti-military animus, but the driving force I have observed is support for equal opportunity for gay americans -- and particularly for those who wish to serve -- openly and proudly -- their country in the military.
3.6.2006 12:15pm
Medis:
stevesturm,

Actually, such a reversal is not necessarily a sign of "incompetence" on the part of a panel of a Court of Appeals. First, a panel of a Court of Appeals typically is bound to apply that COA's precedents. Second, such a panel is also bound to apply the Supreme Court's relevant precedents. The Supreme Court itself operates under neither of those constraints.

In this case in particular, the Third Circuit determined that under Dale, it must defer to FAIR on the crucial issue of what would impair the schools' expressions. I actually think that was the right reading and application of Dale, given the sweeping reasoning in Dale. But--fortunately, in my view--the Supreme Court in FAIR has now apparently cut back significantly on the reasoning that it expressed in Dale.

So, I don't think that you can blame this panel of the Third Circuit for applying Dale in this fashion and then getting reversed. And that is because, unlike the Supreme Court, the panel could not cut back on the reasoning in Dale as it saw fit.

Indeed, I am quite happy that the Third Circuit teed up the case in this way. Otherwise, the Supreme Court would not have had such a clear opportunity to retreat from some of the possible implication of Dale. In that sense, lower courts serve a very valuable function in situations like this (ie, they give the Supreme Court an opportunity to cut back on some of its prior opinions where appropriate).
3.6.2006 12:17pm
Neo (mail):
The opinion seems to give colleges and universities one real way out ... have no recruiters on campus.
The opinion (page 8) seems to leave open the door to Congress to rewrite Solomon using Article 1 (to raise and support armies .. to provide and maintain a Navy), which could steer around any attempts to refuse federal funds.
3.6.2006 12:23pm
Tyrone Slothrop (mail) (www):
The opinion seems to give colleges and universities one real way out ... have no recruiters on campus.

The Court makes clear that law schools are welcome to give military recruiters equal access while also engaging in speech that will make it clear to anyone listening that the schools disagree with the exclusion of gays. This should make everyone happy, not least the people who want to keep using pointy-headed, legally minded effete intellectual snobs as foils.
3.6.2006 12:27pm
davod (mail):
BCLaw:

Your argument, and that of the educrats, is with the Congress not the military. The military is obeying a law.

Hence, your argument, and that of the educrats, is with the democratic process.
3.6.2006 12:30pm
Neo (mail):
Allow me to rephrase that ..


The opinion seems to give colleges and universities one real way to keep military recruiters out ... have no recruiters on campus.
3.6.2006 12:32pm
Richard Aubrey (mail):
APU. You may respectfully disagree, but the view from the outside does not care what you think or what I think.

If Harvard is concerned about looking as if its point was a disguised attempt to simply not be associated with those icky soldiermen, then it must take steps to combat the obvious impression. If they don't care, they won't.

The problem for Harvard is that if the obvious conclusion is that they dislike the military is true, it will take some extremely ingenious thinking to figure out a way to look as if they really don't despise the uniformed services. Have an Army-Navy night on campus? Host speakers from the Command and General Staff School? Have straight as opposed to lefty military history courses, possibly taught by retired officers?
Faking this is going to be tough.

On the other hand, if they really didn't mind the military, they could have used that high-priced legal talent to figure out a way to keep the recruiters.

Their choice, and the consequences are not merely financial.
3.6.2006 12:33pm
Mackey:
Davod,

The basis for the law is the representations made by military leaders about the social conditions of the U.S. Armed Forces. It's a little like saying your problem is with "the democratic process" and not Jack Abramoff, Ken Lay, the House of Saud, Hamas, etc. etc. You seem to ignore the active role the military (though not individual servicemembers, to be sure) played in the construction of the law to which you refer.
3.6.2006 12:35pm
Bruce Hayden (mail) (www):
I don't see how it was going to go any other way, esp. after the Court pointed out that they could have done it directly. And that is the alternative - a draft of JAG officers. If you want to talk compelled speech, forced association, etc., that would be far more egregious, and, still presumably legal. Of course, this suit was never about forced speech and compelled association of the students, but rather, of the faculty. So, maybe that would be the solution that they could live with - for example, drafting the top 10% or so of every graduating class of every ABA accredited law school. Then, if someone didn't want to go in, they could either not go to law school, or keep their grades down below the top 10%. At least they would have a choice, a choice that my generation didn't have with Vietnam, and my father's generation with WWII.
3.6.2006 12:41pm
Medis:
Richard,

Maybe they could do something like dedicate a prominent building to memorializing Harvard people who fought and died in wars. Something on Harvard Yard, perhaps--maybe a church.
3.6.2006 12:42pm
The Drill SGT (mail):
Mackey,

Davod's point is that the military is a conservative organization with (from its view) a legitimate concern about morale, unit cohesion and the negative impact of openly practicing homosexuals have on units. They may be wrong, they were wrong about the impact that integrating the military would have in the late 40's. Truman ordered it, the military as a whole saluted and worked to carry out the President's order. I'd stack up the Army's treament of blacks at all levels to Harvard's in terms of fairness and opportunity.

Want the military to change DADT? Go see your Congressman. It's a Democracy. The military would attempt to make a revised policy work as well. They solve problems, they don't make policy.
3.6.2006 12:48pm
Tyrone Slothrop (mail) (www):
Something on Harvard Yard, perhaps--maybe a church.

If not in Harvard Yard, at least nearby.
3.6.2006 12:48pm
The Drill SGT (mail):
Or let ROTC back on campus. Tossed off due to ti-war, anti-military prejudice, not "DADT".
3.6.2006 12:50pm
Clayton E. Cramer (mail) (www):


Unfortunately, what this case comes down to is homosexuality. If the military refused to allow African-Americans to serve in the military, and the law schools refused to allow military recruiters on campus in protest, would anyone doubt that the outcome would be different?


Racial minorities are a protected class under the constitution; sexual minorities are not.
Exactly. American society reached the supermajority position (2/3 of both houses of Congress, and 3/4 of the states) that the laws should not discriminate based on race. Admittedly, a big chunk of the Southern white population was excluded from voting after the Civil War, which made it possible to ratify the Fourteenth Amendment.

If homosexuals manage to persuade their fellow Americans that they deserve this same level of protection, there's a process: a Constitutional amendment protecting the rights of sexual minorities. Now, you can start whining if you like that this is really hard. Well, sure it is.

Pro-lifers have tried to get a Human Life Amendment passed, without success, because there is not the supermajority required to pass it. Supporters of the Equal Rights Amendment also ran into some problems--largely because opponents pointed out that if passed, it could lead to all sorts of very unlikely but worrisome results, such as the courts finding a right to same-sex marriage. Passing a Constitutional amendment requires general agreement of the population--not just agreement of a bunch of judges.
3.6.2006 12:54pm
Jeek:
The basis for the law is the representations made by military leaders about the social conditions of the U.S. Armed Forces. It's a little like saying your problem is with "the democratic process" and not Jack Abramoff, Ken Lay, the House of Saud, Hamas, etc. etc. You seem to ignore the active role the military (though not individual servicemembers, to be sure) played in the construction of the law to which you refer.

In the integration fight, I believe some military leaders more or less represented that integrated units would be "bad" for the armed forces. Truman said, tough, go do it, and they did. Bottom line, if the civilian political leadership is determined to impose its will on the military, they will do so.
3.6.2006 12:57pm
Bruce Hayden (mail) (www):
The Court did point out that DADT was the law of the land, duly enacted into law under the procedures set forth in our Constitution. You may not like it, many don't. But this Court does not appear to be ready to even entertain overturning it. To them, it is a political question, one they are going to studiously avoid, esp. given that this question goes to one of Congress' core powers.
3.6.2006 1:00pm
Medis:
Drill SGT,

If I have my facts right, Harvard kicked ROTC off campus during the Vietnam War (which I think would be fair to call an "antiwar" decision), but they cut off all funding for ROTC in 1995 as a result of DA/DT.

So, I'm not sure it is so clear that their current stance on ROTC is more about the military in general than it is about DA/DT.
3.6.2006 1:01pm
Mackey:
Drill Sgt,

To be honest, I think your point may differ from Davod's. One common thread is that the military is not responsible for law or policy governing the military and appeals to change the law should be directed at Congress, not the military.

What I suggested this ignored, and what it seems your post concedes and even relies on, is that the Don't Ask, Don't Tell policy (DADT) developed in response to military leadership's assessment of integrating homosexuals into the army. For this assessment, and its accuracy, I think it is entirely appropriate to hold the military accountable. For the permissive homophobia that permeates some, but not all, military bases and ships, it is the military and not Congress that is responsible.

Of course, it also bears noting how receptive Congress has historically been to military needs or requests. It was, after all, Truman who ordered the racial desegregation of the Army. And it has been Congress that authorized war, re-appropriated funds for the continuing military efforts and just now extended the Patriot Act by an overwhelming margin. This isn't a parade of horribles--just a parade of political obedience.

The military is very insistent on its culture and Congress is very receptive to military demands. When one attacks either, it often seems like a kind of shell game of political responsibility. Kind-hearted non-bigoted servicemembers repeatedly insist that the military isn't really like that, that it's just a regulation. Meanwhile, liberal-leaning politicians excuse their inaction based on the importance of (the apparently non-existent or at least non-homophobic) military culture. The reality is it lies everywhere, with every organization that brought about this law and continues to defend it. Certainly, the US military fits both descriptions.

P.S.--You also asserted the military was wrong in its assessment of the impact of racial desegregation on morale, cohesion and potential "negative impact." Were they wrong or is it simply that the benefits outweighed these (from their view) legitimate concerns?
3.6.2006 1:06pm
The Drill SGT (mail):
Changing topics slightly:

1. Doesn't "no Child Left Behind" (NCLB) mandate access in a fashion, like Solomon?

2. I know there are objectors in the Eduocracy that fight NCLB on both general principles AND the military access issue. Are their cases like Rumsfeld v. FAIR working?

3. What does this decision do for those cases?

4. Will Congress be emboldened to make other links from funding to activities or actions in other areas?
3.6.2006 1:13pm
Richard Aubrey (mail):
Medis. Not having been in the neighborhood of Harvard in some time, and being paranoid when in the neighborhood of lawyers, I have this feeling somebody's trying to snooker me.
I presume there is a chapel dedicated to the dead of our military already someplace about the Yard.

Nice. However, my alma mater has a chapel and it quit putting the names of the grads who had died in service on the walls, as had been the practice, during the Viet Nam war. I don't know if they have restarted. So even the supposed existence of the chapel is not a panacea.

The point would be not that they are willing to have a building nobody goes to and which might itself be quietly subject to various restrictions and indignities, to honor those safely dead.

The outside view of Harvard is not going to be mollified by the surprise announcement that they have a chapel someplace.

Try again.
3.6.2006 1:20pm
KeithK (mail):
Regarding a hypothetical JAG draft of the top 10% of each law school class, Bruce wrote:

Then, if someone didn't want to go in, they could either not go to law school, or keep their grades down below the top 10%. At least they would have a choice, a choice that my generation didn't have with Vietnam, and my father's generation with WWII.

Now that would lead to some interesting games theory. You want to maximize earnings potential after graduation, so you need high grades. But you also want to stay out of the military. So how well do you try to do in your Con law class to optimize? Keep in mind that a large fraction of your class also has the exact same thought. Do we end up in a race to the bottom?
3.6.2006 1:42pm
The Drill SGT (mail):
Mackey

P.S.--You also asserted the military was wrong in its assessment of the impact of racial desegregation on morale, cohesion and potential "negative impact." Were they wrong or is it simply that the benefits outweighed these (from their view) legitimate concerns?


At some level the benefits IMHO outweighed the pain. Let me elaborate with complete candor.

I have commanded troops. I have been in combat. I have not commanded troops in combat. (in Vietnam, I was a junior enlisted type). Commanding troops in combat is one of the most difficult jobs in the world. Every decision the commander makes changes the risk profile for the group and individuals. "Who goes on point" is the simplest example. The unit with the best morale and highest performance is one that is homogeneous. The same backgrounds, experiences, training, time in unit, etc. why? Because those "risk differential" decisions by commander are easier to explain and "look" fairer. Same thing with easy jobs. Who's getting over, while I bust my ass? When the military integrated, it made that command climate a bit harder. Was the commander white? Did the brothers get screwed? Were they coddled? The same decisions made by the same commander now have an additional coefficient of friction built in. Add women into the mix, it gets more complicated. Add openly practicing Gays into the mix, it gets really interesting. As SA Marshall wrote in the classic leadership tome "Men Under Fire", soldiers don't fight for God Mother or the Flag, they fight for the respect of their peers. Anything that causes them to have less respect for their peers such as less time in the unit or any other differences reduces that link and reduces effectiveness. again, IMHO.

So in the case of blacks, there was a huge amount of short term turbulence and negative impact. Long term the leadership issue does still play a factor negatively, though that issue has declined to a great extent, and long term, the additional recruiting pool is a good thing, as is the overall fairness issue.

In units we don't put men and women into the same squad bays nor do you have coed showers, (unlike some colleges I guess). The opposite sex can't enter sleeping dwelling, etc. So if we allow openly gay service members to we:

a. put the same rules in place for 4 classes of folks instead of the current 2?

b. abandon all distinctions and place men and women without regard to gender anywhere? So If I were a woman, I could expect to have a male roommate or a lesbian roommate and if I objected I would be a homophobe or a heterophobe?

My orientation and viewpoint here is what works for military effectivess, not for individual gender rights. I don't know how things will work in the long run, but my view is that in present day society, the current rules work better than the alternatives.
3.6.2006 1:53pm
Billy Budd:
The court really blew the statutory interpretation part of this argument. Read the amici brief from columbia and ask yourself this question: under the court's reasoning, can Columbia bar the DoD from military recruiting if it fails to submit its recruiting materials on time or does not comply with Columbia's policy against exploding offers?
3.6.2006 1:57pm
Medis:
Richard,

I think your response demonstrates that you aren't really interested in being "mollified". Hence, I think you are basically right--if you are already committed to the view that Harvard is anti-military, then there is nothing that they could do to change your mind.

I'm not sure why you invite me to "try again" however. In the game you are playing, Harvard always loses because you want Harvard to lose, and you are the sole judge of whether Harvard wins or loses. So why would Harvard even try to play your game on those terms? They would be pretty foolish to accept such an invitation.
3.6.2006 2:01pm
Richard Aubrey (mail):
Medis. I think you're being deliberately obtuse. Your suggestion that the solution to Harvard's potential PR problem was that they should build a chapel of remembrance.
My guess, from your comment and from one who supported you, is that they already have such and you were trying to bait me into agreeing, upon which time you would spring it on me that they already have a chapel. Ah HA! See!

My point is that the substantial likelihood that such a chapel or other place of remembrance exists--or could be built--will not solve the PR problem.

The question is whether Harvard thinks they have a PR problem, or cares. If they do, how are they going to address it? Telling everybody about the chapel built in, say 1867 or whenever isn't going to do it.
3.6.2006 2:26pm
Medis:
Richard,

And my point is that since your answer to any possible measure is predetermined (you won't be satisfied), it is pretty pointless for Harvard to try to satisfy you.
3.6.2006 2:47pm
Richard Aubrey (mail):
Medis. Satisfying me isn't the point.

The point is what Harvard is going to do about the PR problem.

If they admit they have one, they'll either do something or nothing. What do you think they'd do if they felt they should do something?

Or do you think they don't think they have a PR problem?
3.6.2006 2:50pm
Colin (mail):
Richard,

I didn't read Medis' comments as trying to "bait" you. I think his comments were tongue-in-cheek; Harvard's Memorial Chapel is a relatively well-known landmark, and I imagine it's easy to google, as well.

Also, you seemed to make backhanded insinuation that Harvard's memorial would somehow be meaningless because your own alma mater slighted Vietnam veterans. Harvard's chapel, however, does include a specific Vietnam memorial.

No baiting, just easily discoverable facts.
3.6.2006 2:51pm
stevesturm:
Medis: while my suggestion that judges be removed for incompetence was serious, I was somewhat, but only somewhat, tongue in cheek with my comment that this particular panel of the 3rd circuit must have really been out to lunch if they couldn't get a single Justice to buy their reasoning.

As for the claim that the panel was simply trying to apply precedent, I can't buy that every single Justice decided at the same time to abandon prior decision and agree on a new decision. Even Alito, in his attempt to apply precedent, didn't get smacked 9-0, did he?
3.6.2006 2:54pm
Richard Aubrey (mail):
Colin: How about that? I had never heard of the chapel and still, because of the tenor of Medis' suggestion, posed as a question, supported in the same way, I guessed correctly that one existed. I said I am paranoid in the presence of lawyers, and it pays off.

The next step in the dance, had I agreed that building a chapel would be a good step, would be to drop on me that, dummy, they already have one.

Not everybody is as good as they think they are.

Harvard's memorial is or is not meaningless depending on the meaning invested in it by those who visit or know of it. Or who built it.

What its existence has to do with Harvard's current puzzlement about deciding between bogus posturing and real money is not at all clear. Nor, I suggest, would it serve to clean up the taint of the current mess.

My question is what are they going to do now? Or are they going to do nothing? Do they see a problem at all?
3.6.2006 3:01pm
Medis:
The Drill SGT,

Why didn't you list the other obvious answer--not changing the current shower/rooming rules? Eg, straight and gay men could shower and room together, as could straight and gay women. This, of course, is already what is happening now under DA/DT. The only difference after ending DA/DT would be that more people would know when it was happening, which actually sounds like an advantage for homophobes.
3.6.2006 3:01pm
Medis:
Richard,

For what it is worth, I wasn't trying to trick you--I assumed that I gave enough clues to let anyone know I was talking about an actual place.

Anyway, my point is that whether or not Harvard has a PR problem, you are not a good person to judge whether a given measure would be helpful because you have already determined that you will not be satisfied by anything Harvard does. In other words, if Harvard does in fact have a PR problem, it makes sense for Harvard to target its PR efforts toward those who could in fact be "mollified" by such efforts, and you are clearly not one of those people.

So, I suspect that Harvard is willing to write you off. Which only makes sense, because any PR efforts directed toward you would clearly be wasted.
3.6.2006 3:09pm
Richard Aubrey (mail):
Well, Medis, we're making progress.

Do you think Harvard has a PR problem over the current mess? If so, what would they do to mollify people other than me?

I would suggest that I showed no index of mollifiability. I only asked questions. I made no judgment of any of Harvard's efforts at cleaning their shoes--because they have yet to make any.

And, yeah, you were only dropping sufficient hints by asking if Harvard ought to build a chapel...in the future.

Maybe you should go back to the fundamentals of snookering. Never hurts to review.
3.6.2006 3:19pm
Medis:
stevesturm,

I don't see why you find it hard to believe that eight Justices would simultaneously agree to limit the reasoning in Dale. First, Dale is relatively new, and pretty ground-breaking in several respects. Indeed, as the Third Circuit noted, on the crucial issue (whether to defer to the organization about what would impair its expressions), Dale at least arguably broke with some of the Court's precedents (see note 12 in the Third Circuit's opinion). Finally, only three of the Justices from the Dale majority (Kennedy, Scalia, and Thomas) are still on the Court.

In contrast, all four dissenters in Dale (Stevens, Souter, Ginsburg, and Breyer) are still on the Court. Moreover, this time the end result might be deemed the "conservative" result, which may have helped the three remaining Justices from the Dale majority consider limiting Dale. Finally, the author of Dale (Rehnquist) has been replaced on the Court by the author of this opinion (Roberts).

So, I don't see it as very odd that all eight of the Justices in the Court's new lineup voted for an opinion that limited the reasoning in Dale. And again, I don't think that makes the Third Circuit panel "incompetent", precisely because the Supreme Court can do that but the Third Circuit cannot.
3.6.2006 3:28pm
dk35 (mail):
Richard,

Perhaps you could explain what, in your opinion, is the "current mess."

Here's how I see the "current mess." The US Congress passed laws and created policies discriminating against gay people. Then they passed another law expressing the view that they would sooner cause a tremendous disruption in medical, scientific, and engineering research, training and development which benefits our entire society (including, I might add, the US military) rather than allow these private institutions to adhere to their own anti-discrimination policies.

The government decided to play a game of chicken, and it won. But at what cost? I don't see much a PR issue for Harvard. I do think, however, that when the government finally allows gays to serve, the Solomon amendment will be taught in law schools as an example of how far the US government was still willing to go in promoting state-sponsored discrimination in the late 20th/early 21st century.
3.6.2006 3:49pm
Medis:
Richard,

I think it is sufficient for my assessment that you judged the import of Memorial Chapel without bothering to first determine any of the facts about Memorial Chapel. That indicates to me that the facts are unimportant to you, which in turn indicates to me that you are determined to be unsatisfied no matter what Harvard does.

As for what PR problems Harvard might have and how they could address them--given your comments, why should I think that you are interested in discussing whether or not any given measure would be helpful? In other words, why would I want to have such a discussion with you when I already know what you will say about any possible measure?

Seriously, I find this all quite bizarre--you and I both know that your invitation to have such a discussion is not meant in earnest. So do you really expect me to take you up on such an offer?
3.6.2006 3:50pm
mitch Wayne (mail):
I love the discussion that is taking place here. Let's sum it up in one proposition:

The Golden Rule - He who has the gold makes the rules.

If you don't like my rules, don't take my money.
3.6.2006 4:03pm
bluecollarguy:
BCLaw: "Unfortunately, what this case comes down to is homosexuality. If the military refused to allow African-Americans to serve in the military, and the law schools refused to allow military recruiters on campus in protest, would anyone doubt that the outcome would be different?"



Not really. First, the military can not refuse to obey the law any more than the members of FAIR can. And second, I think the case comes down to Article 1 period. SCOTUS makes it pretty clear that the "power to raise armies" allows Congress to "mandate" universities, both private and public, allow recruiters on campus mana or no mana.

Having expressed that opinion, Congress then certainly has the power to exercise the purse strings as a carrot rather than using the mandate stick, though they are not required to do so.

Of course, Congress can make no law that is unconstitutional and they have not since sexuality is not a constitutionally protected class.

Hence, 8-zip.

3.6.2006 4:14pm
Richard Aubrey (mail):
dk35
I was not speaking about your view of the situation. That's why I talked about the view from the outside. You're free to try to sell your version, or give it away for free. Let me know how it goes.

Medis. Missed again. I judged that there was a Memorial Chapel without looking it up based on your attempts to get me to suggest one be built. And I was right. My guess is that telling everybody that Harvard really isn't anti-military ("Look. Over here is our Memorial Chapel. Forget ahout not letting recruiters on campus") won't make much difference. I may be wrong. I guess we'll see.

I keep saying, this isn't about my view. Discrediting me doesn't address the view of the public-at-large in any way. But knock yourself out if it makes you feel better.

My question is whether Harvard thinks it has a PR problem. IMO it does among people who know about this which is probably not very many, but growing. But what does Harvard think? And if they think they have a problem, what are they going to do (obviously, nobody knows, but what do you think might work?)?

Somebody suggested that Yale was unreluctant to enroll the not-quite-GED Taliban guy because they've already chased off their conservative donors and this isn't going to bother the rest. Perhaps Harvard is in the same situation and didn't think they have anything to lose--until today?
3.6.2006 4:16pm
Medis:
Richard,

As an aside, you claim to be representing the views of "outsiders", the "public at large", and so on, but I think you are really just representing your own views. So as much as you claim this isn't about your views, I think it actually is about nothing but your views.

But anyway, you are "guessing" about things like the import of Memorial Chapel without bothering to learn the facts about Memorial Chapel. So, why should anyone else take such "guesses" seriously? And why should I bother suggesting any possible measure to you, since we both know in advance that you will simply "guess" that it won't work, no matter what I happen to suggest?

So there we are--you have predetermined that anything Harvard does will fail, and I don't see the point in going through an exercise where I name things and you "guess" that they will fail. In short, since your "guesses" are predetermined, what would be the point of that exercise?
3.6.2006 4:41pm
Richard Aubrey (mail):
Medis: What facts do I need to know about the Memorial Chapel?
It exists. Whether it has or can be made to have any positive impact on the public view of Harvard is another question and the facts I know or don't know are irrelevant to that question.

I know some people who are annoyed with Harvard about this and who are convinced the gay issue was an excuse. I don't know everybody, but the opinion of everybody I know whose opinion is known to me is as I say.

There was a book by a writer whose son enlisted in the Marines. I think the title was "Keeping The Faith". The reactions of his precious, upscale friends to the announcement were hilarious. I don't know that kind of person, fortunately, so obviously the opinions I hear are not all there are.

You keep making this about me, and insisting I'm going to judge Harvard's putative efforts as failures no matter what.

It's not about me.

It's about two questions. Do you think Harvard has a PR problem because of this and,if they do, what will they do about it? Alternatively, do you think Harvard thinks it has a PR problem and what will they likely do about it?

It's certainly possible you don't and Harvard doesn't, in which case the discussion is over.
3.6.2006 4:56pm
dk35 (mail):
Richard,

The problem is that you are presuming to say what the view from "the outside" is. If you indeed have your finger on the pulse of the nation, please provide some evidence to back this up. I'm looking a polls showing majorities in this country frowning upon hiring discrimination based on sexual orientation, as well as the fact that basically every other first world country allows gays in their militaries.

It's funny that you mention the Taliban though, because pretty much the only other countries these days that keep gays out of the military are the fundamentalist Islamic ones. Given that, perhaps you should reconsider your apparent opposition to Yale's admissions decision (as well as the Bush administration's decision to grant that guy a student visa).
3.6.2006 4:56pm
Mobius (mail):
Yea! Finally, a sane decision. Liberals want to have it both ways; to be able to discriminate while bashing those who discriminating. Finally it's put up or shut up!!!! I find it amazing that the radicals bash the military for its sensible solution to discpline and creating an apolitical military, while these same radicals perpetuating racism in the legal community. The number of minorities in law firms is only 10 percent and has been for a long time, yet there is no great uproar over letting these firms on to Harvard or Yale's campus. Hypocrites! Yale and others only care about justice if it doesn't affect their bottom line or their careers. Each and everyone of the Yale grads will take jobs at law firms paying in the six digits that barely have any minority representation. I don't see Yalies banning those firms from campus for defacto racism.
3.6.2006 5:03pm
dk35 (mail):

sensible solution to discpline and creating an apolitical military



It's funny, Mobius, because the only other countries who use that solution are exactly those Islamic Fundamentalist ones that conservatives insist are so evil. I guess there's plenty of hypocricy to go around, eh?
3.6.2006 5:18pm
No New Dale:
Medis,

Your reading of this case as an implicit limitation on Dale is far-fetched. I read the opinion (and the court's unanimity) as a statement that FAIR's claims were so preposterous that there was no need to re-evaluate or adjust any of the Court's prior precdents. In effect, the sheer frivolity of the arguments allowed them to be quickly and easily disposed of.

Although the opinion lacks the fire of a Scalia opinion, there are strong insults directed at FAIR. For example, the statement that FAIR's reliance upon Barnette and Wolley trivializes the freedom protected by those cases, and that their reliance upon Hurley and Dale overstate the expressive nature of the professors' conduct and exaggerates the reach of the Court's First Amendment precedents.

I doubt that any court of appeals (with the possible exception of a Ninth Circuit opinion by Judge Reinhardt), would read this case as a retreat from Dale.
3.6.2006 5:33pm
Enoch:
What I suggested this ignored, and what it seems your post concedes and even relies on, is that the Don't Ask, Don't Tell policy (DADT) developed in response to military leadership's assessment of integrating homosexuals into the army. For this assessment, and its accuracy, I think it is entirely appropriate to hold the military accountable. For the permissive homophobia that permeates some, but not all, military bases and ships, it is the military and not Congress that is responsible.

Mackey, this is totally irrelevant. If the President, or Congress, demands that the military accept gays, then they will do so, period (especially if they link this to officer promotion). There were plenty of permissive - and even active - racists in the military in the 1940s, but when Truman said "integrate" the military did it, regardless of how "responsible" they were for their racism.
3.6.2006 5:40pm
dk35 (mail):
Enoch,

I completely agree with you that the President and Congress are ultimately accountable for military policy. But this doesn't mean that the opinions of military leaders are irrelevant to the discussion. After all, our political leaders, in determining military policy, look (rightly so) to military leaders as experts in this area.

With regard to the creation of DADT, for example, proponents of the policy relied heavily upon Colin Powell's public opposition (in the form of public Congressional testimony, if I remember correctly) to allowing gays into the military. In order to amend the policy, as a political reality, it is necessary to challenge Powell's "expert opinion" and/or find other military experts who look at the same facts and, for superior reasons, disagree with him.

So, while the opinions of military leaders may be irrelevant in the sense that the President and Congress have the ultimate say in the matter, they are very relevant to the political realities of changing government policy. In other words, maybe we are disagreeing over what we mean by holding someone accountable. I agree that we can't hold military leaders accountable in the sense of saying that the current policy is a matter under their ultimate control. But we can hold them accountable in the sense that if they provide an opinion to Congress about gays in the military, that we should be able to expect them to back up their opinions with logic and fact, and that their opinions are subject to being challenged in the face of alternate views on the matter.
3.6.2006 6:10pm
jpe (mail):
"the court's opinion seems a little broader than I thought, at least."

That was my impression, too. Given the court's reasoning, I don't see how any school, be it private or public, could prevent the state from compelling equal access for any reason. If refusing to host employers isn't speech, there's no interest at stake and no avenue of objection.
3.6.2006 6:23pm
Aaron:
"Something on Harvard Yard, perhaps--maybe a church."

"If not in Harvard Yard, at least nearby."

Or, why not do what Harvard has done, and do...

Both.

Mem Church, in Harvard Yard. Mem Hall outside of it. Both are striking and profoundly moving tributes to Harvard's fallen heroes.

And Moebius, howz this: Harvard and Yale let law firms with low minority counts participating in recruiting minorities, thereby helping to increase the number of minorities in those firms. On the other hand, the military is hardly looking to increase the number of gay lawyers, or what was all of this about?
3.6.2006 6:25pm
Clayton E. Cramer (mail) (www):


sensible solution to discpline and creating an apolitical military






It's funny, Mobius, because the only other countries who use that solution are exactly those Islamic Fundamentalist ones that conservatives insist are so evil. I guess there's plenty of hypocricy to go around, eh?
Gee, I didn't know that Britain and Canada were Islamic Fundamentalist states in 1970 (when such rules were pretty much the norm in most NATO militaries).

There might well be a legitimate argument about whether this rule makes sense or not. This attempt to argue that opposition to homosexuality is a sign of Islamic fundamentalism, however, is factually wrong. Until very recently, there were few modern societies that regarded homosexuality as anything but sickness or evil.
3.6.2006 6:39pm
Jon Rowe (mail) (www):
Clayton Cramer wrote:


Exactly. American society reached the supermajority position (2/3 of both houses of Congress, and 3/4 of the states) that the laws should not discriminate based on race....

If homosexuals manage to persuade their fellow Americans that they deserve this same level of protection, there's a process: a Constitutional amendment protecting the rights of sexual minorities. Now, you can start whining if you like that this is really hard. Well, sure it is.

...Supporters of the Equal Rights Amendment also ran into some problems--largely because opponents pointed out that if passed, it could lead to all sorts of very unlikely but worrisome results, such as the courts finding a right to same-sex marriage. Passing a Constitutional amendment requires general agreement of the population--not just agreement of a bunch of judges.


I wonder if you'd hold the gender discrimination cases to the same standard. After all, there is as little evidence the original expectation of the 14th Amendment had anything to do with Gender as it did Sexual Orientation.
3.6.2006 6:49pm
dk35 (mail):
Clayton Cramer,

Thanks for supporting my point. Britain and Canada have evolved. Too bad the likes of you prefer Islamic fundamentalist rules over those of modern Western Civilization.
3.6.2006 7:25pm
M (mail):
Given that gays (outside of Hollywood and Broadway) represent just 2-3% of the population, wouldn't it be easier to replace the epithet, "homophobe", with the shorter, pithier, "normal"? FWIW, race is a noun, orientation is a behavior. I, and most Americans, don't care about your race, but if your behavior damages cohesion in the military, people die, and missions fail. I consider that to be a bad thing.

It will be interesting to see which schools give back the money...

3.6.2006 7:32pm
Medis:
Richard,

You ask: "What facts do I need to know about the Memorial Chapel? It exists. Whether it has or can be made to have any positive impact on the public view of Harvard is another question and the facts I know or don't know are irrelevant to that question."

That is why I am uninterested in accepting your invitation. If you really think that the facts don't have any relevance whatsoever to your guesses about public perception, then I see no point in discussing the matter with you.

No New Dale,

I'm not sure where you are disagreeing with me. In Dale, the Court stated that it would defer to expressive associations on the issue of what impairs their expressions. In FAIR, the Court showed no such deference, as you point out yourself.

So, regardless of what you want to call that omission, I'm just happy that the deference announced in Dale, and upon which the Third Circuit relied in FAIR, did not reappear in the Court's resolution of this case.
3.6.2006 7:56pm
Jon Rowe (mail) (www):
"FWIW, race is a noun, orientation is a behavior."

Uh...? Aren't they both adjectives?
3.6.2006 8:46pm
Richard Aubrey (mail):
Okay, Medis. I'll bite. What facts about the Memorial Chapel affect public perception of the current issue?
3.6.2006 8:54pm
No New Dale:
Medis,

The fact that the court showed no deference to the law school's statement that its recruiting efforts constituted "expressive conduct" is not because it was applying a modified rule from Dale, but rather because FAIR's position was, on its face, ridiculous. Do you really think (as opposed to wish) that a lower court apply Rumsfeld will take the position that the Supreme Court sub silencio modified Dale, without any concurring or opinions for support? If you were to argue so, I would imagine that your case would be as successful as FAIR's was in the Supreme Court.
3.6.2006 9:23pm
Richard Aubrey (mail):
dk35.
This is supposed to be a blog for grown-ups. You can't or won't address my question, so you accuse me of being a Taliban-like homophobe.

I have said that DADT isn't the real issue, so I can hardly be being homophobic about this.

And it wasn't me in charge of the university that made a special place for that miserable son of a bitch.

Uh-oh. Now I can be accused of Talibanophobia.

I just can't win.
3.6.2006 9:24pm
Grand CRU (mail):
Thanks, No New Dale, for saving me the effort of responding to Medis.
3.7.2006 12:36am
Medis:
Richard,

I think you are missing my point. We have established that the facts are not relevant to your "guesses" about public perception. So, I already know how that conversation would go: I would mention a fact, and you would "guess" that this fact would not influence public perception.

My entire point is that your predetermination of these issues in the absence of facts renders such a discussion pointless. And so once again, I decline your invitation to engage in such a pointless exercise. And I remain puzzled about why you keep extending that invitation to me in light of the fact that we both know it would be a pointless exercise. But I gather you really want to play the game nonetheless--however, you will have to find someone else to play it with you.

No New Dale,

Again, I don't see how you are disagreeing with me. In short, I think it is great that the Court was willing to evaluate FAIR's position "on its face", rather than showing any deference to FAIR's claims.

As for future lower courts--I'm not sure what arguments you are trying to impute to me. But I guarantee that in the future, when a party cites to Dale for the proposition that the court should defer to an expressive association on the issue of what would impair that expressive association's communications, the opposing party will cite to FAIR. Incidentally, there was nothing "sub silencio" about this--the Court specifically discussed Dale in FAIR.

In general, I'm not sure why a number of people are so resistant to the idea that FAIR limited the reasoning in Dale. Maybe there is some confusion about what that means--that does not mean, of course, that the Court in FAIR overruled the holding in Dale in some way. Rather, the idea is that some of the possible implications of the Court's reasoning in Dale have been cut off by the Court's discussion and application of Dale to this case.

Frankly, I think that point is both obvious and uncontroversial. So, maybe this resistance is based on the notion that Dale actually stands for something else--say, a blow struck against "the gay agenda"--and therefore perhaps some people are reluctant to talk about any subsequent decision undermining Dale in any way.

But my point has nothing in particular to do with the nature of the expressions--or the nature of the contrary state interest--in Dale. Rather, I am referring to the sort of reasoning that the Court used to reach its result in Dale, and how that sort of reasoning was notably omitted from the Court's application of Dale to this case.

Of course, one might wonder if the Court could have reached the same result in Dale without using the same deferential reasoning. Personally, I do think that deferential reasoning was crucial to the result in Dale, given the facts of that case. But I freely admit that the Court in FAIR did not attempt to revisit the result in Dale. Moreover, it may well be possible to "save" the deferential reasoning in Dale simply by limiting it to something like actual membership cases.

Anyway, perhaps that is what No New Dale is trying to impute to me--the argument that the RESULT in Dale is no longer good law because of FAIR. Again, though, I am making no such claim. So rest assured, No New Dale, that I won't be citing FAIR for such a proposition.
3.7.2006 4:30am
M (mail):
Jon-
Perhaps I wasn't clear enough. Race is something innate, (ie, a noun), orientation is not discernible except through behavior (ie, a verb).
3.7.2006 8:55am
dk35 (mail):
Richard,

Firstly, I actually did directly answer your question in my first comment above. You seemed to "ask" (actually, what you really did is presume) that Harvard has some kind of PR problem over all of this. I stated very clearly that I do not see much of a PR problem for Harvard.

Secondly, I do not see what is not grown up about pointing to the fact that the US is now basically alone in the world of industrialized nations, and in line with Islamic fundamentalist nations, in discriminating against gay people in the military. As with the Harvard chapel debate you had above with Medis, facts seem irrelevant to you if they do not fit neatly into your presumptions.

Finally, you are the one who, for no apparent reason actually connected to the topic of this thread, brought up the latest right-wing talking point of Yale admission story. All I did was point out (albeit with sarcasm) that on the issue of gays in the military, you probably have more in common with an average Taliban member than Yale does.
3.7.2006 9:11am
Richard Aubrey (mail):
dk35.

Your "finally" is an unjustified ad hominem. Among other things, I have not said a single thing about the issue of gays in the military. You know nothing about my view. Therefore, your comment is either purely mean-spirited, due probably to your inability to address the argument, or the usual Swiss Army Knife, multifunction, all-purpose dismissal of someone whose argument you wish not to address. I take it back. Most kids I know wouldn't be as juvenile as this. (How do you get more juvenile than a kid? Beats me, but some folks manage.)

In addition, you imply that the American law about gays in the military is the same as the Islamic fundamentalist view that they be executed as found. I know you didn't say it, but your phrasing was carefully designed to make the point. That's stupid, not to mention vile, and false.

What, by the way is the left-wing talking point about letting the Taliban turd into Yale? Epater les bourgeoisie is now a goal of the Ivies? My point about Yale is that some think Yale has concluded they can do anything they like to the conservatives, having lost them long ago as donors. I suggested Harvard might be in the same place. It isn't necessary that Yale take in a person who espoused and fought for all you profess to abhor in order to annoy the conservatives. They might have taken in a child molester or something else, for the frisson of it. The point is the same.

Medis. If you think Harvard doesn't have a PR problem, fine. I disagree, but that's that.

I never judged any supposed tactic Harvard might take to improve their PR position. Among other things, nobody mentioned one for me to judge. I wasn't planning on it, anyway.

You still haven't told me what about the Memorial Chapel would address the putative PR problem.

It doesn't always take planning to run two tracks of an effort. In this one, initially about a supposed PR problem, we found simultaneously that a number of the self-appointed best and brightest are actually superior at lying and insults. Sort of the pound-the-table advice for when you have no facts or law.

You don't really have to expose yourselves like this. but I guess you can't help it. The term "elite" really needs some serious maintenance.
3.7.2006 9:51am
Medis:
Richard,

You say: "I never judged any supposed tactic Harvard might take to improve their PR position."

But before you said:

(1) "I presume there is a chapel dedicated to the dead of our military already someplace about the Yard.

Nice. However, my alma mater has a chapel and it quit putting the names of the grads who had died in service on the walls, as had been the practice, during the Viet Nam war. I don't know if they have restarted. So even the supposed existence of the chapel is not a panacea.

The point would be not that they are willing to have a building nobody goes to and which might itself be quietly subject to various restrictions and indignities, to honor those safely dead.

The outside view of Harvard is not going to be mollified by the surprise announcement that they have a chapel someplace."

(2) "My point is that the substantial likelihood that such a chapel or other place of remembrance exists--or could be built--will not solve the PR problem.

The question is whether Harvard thinks they have a PR problem, or cares. If they do, how are they going to address it? Telling everybody about the chapel built in, say 1867 or whenever isn't going to do it."

(3) "I judged that there was a Memorial Chapel without looking it up based on your attempts to get me to suggest one be built. And I was right. My guess is that telling everybody that Harvard really isn't anti-military ('Look. Over here is our Memorial Chapel. Forget ahout not letting recruiters on campus') won't make much difference. I may be wrong. I guess we'll see."

So, not once, not twice, but rather THREE TIMES you saw fit to judge how Memorial Chapel would affect public opinion of Harvard without ever bothering to learn any facts about Memorial Chapel. Indeed, you saw fit to make up your own description of Memorial Chapel (almost all wrong, I might note), and based your judgment on what you imagined.

So, clearly you are uninterested in a serious discussion of these issues. I therefore have no interest in playing whatever game you wish to play.
3.7.2006 10:36am
Richard Aubrey (mail):
Medis. Tell me what facts about the Memorial Chapel would help with the supposed PR problem.

I am sorry, I was not considering an existing building (which is to say, it exists with little or no current activity to make it so) as a tactic to help with a current problem.

I can only speculate what would be done with/by/to/about the chapel, so I'll let it go.

Anything else Harvard could actually do, as opposed to point to an earlier generation having done?
3.7.2006 1:11pm
Medis:
Richard,

For the last time: I'm not interested in discussing facts with you, because you have already made it perfectly clear that facts are irrelevant to your determinations. And similarly, I don't see why ANY sort of discussion of this issue with you would be interesting, since we both know in advance what you will say.
3.7.2006 2:12pm
Jon Rowe (mail) (www):
Sexual orientation is no more or less a matter or choice or "behavior" as "handedness."
3.7.2006 3:41pm
Richard Aubrey (mail):
Medis. You presume from my questions that I have a point of view regarding the likely efficacy of PR moves Harvard may make.
Not at all. It is certainly possible that an institution I dislike heartily may have the most cunning and effective PR program imaginable. If so, I would say it was cunning and effective.

It is certainly possible that an institution I hold dear may step on its necktie in the PR game. In which case, I would say so.

I get the impression that your refusal to describe what use could be made of the Memorial Chapel in the PR arena is due to a complete lack of ideas about what, if any, connection could be made to the current FAIR issue. I don't see that it could be connected in any meaningful way, but the Ivies are always telling us how smart they are, so this is the place to find any imaginable problem solved most expeditiously. Start right out. Maybe I'll be surprised.

But, Memorial Chapel aside, what other tactics do you think would be available to Harvard if they thought they needed them?
3.7.2006 3:57pm