Students and faculty are free to associate to voice their disapproval of the military’s [“Don’t Ask, Don’t Tell”] message.
—Supreme Court Justice John Roberts, Rumsfeld v. Forum for Academic and Institutional Rights, March 6, 2006
A powerful association of 36 law schools and their faculties—representing many of the accredited such schools in the country—thought it had an eminently just and winning case in opposing a congressional mandate that any university barring military recruiters from its campus would lose hundreds of millions in federal funds.
The law schools in this case, Rumsfeld v. Forum for Academic and Institutional Rights, have, since 1991, required that all potential employers coming to campus sign a pledge to not discriminate on the basis of race, gender, religion, or sexual orientation.
These law schools, however, rightfully regard the military’s “Don’t Ask, Don’t Tell” policy—rejecting openly gay recruits— as blatantly, invidiously unfair discrimination. It was signed into law by President Bill Clinton in 1993. And I see nothing in the Constitution that permits such repugnant exclusion from employment because of sexual preference.
But Congress, in the Solomon Amendment, had decreed that law schools must offer military recruiters the same access to their students as they do to nonmilitary recruiters— or else the entire universities, not just their law schools, would lose all federal funds.
There is a certain irony to this draconian discrimination because annually the military has hired about 400 law students for its Judge Advocate General’s Corps. These military lawyers are supposed to adhere to our rule of law, including due process, in disciplinary and other matters involving the armed forces. A number of these JAGs, representing Guantánamo prisoners, blew the whistle at the president’s and Defense Department’s contempt for due process in the hearings by military tribunals and military commissions at that prison.
The law professors bringing the suit against the “Don’t Ask, Don’t Tell” ukase claimed that their own First Amendment rights were being violated because being forced to carry the government’s anti-gay message amounted to these professors’ “compelled speech” by the government. Moreover, their First Amendment freedom of expressive association was being violated by having to go along with the Solomon Amendment.
Agreeing with the professors, the Third Circuit Court of Appeals found the Solomon Amendment unconstitutional in forcing the law schools to choose between abandoning their First Amendment rights or causing the university to lose all federal funds.
But the Supreme Court has now voted 8 to 0 (Justice Samuel Alito had yet been on the court to hear oral arguments) to tell the protesting professor and law schools:
If you can’t abide by the Solomon Amendment, you and your university don’t have to take the money. You can keep the military recruiters out of your campus, but “Don’t Ask, Don’t Tell” is still the law. The new chief justice, John Roberts, spoke for the unanimous court, including the “liberal” bloc: John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer.
Roberts, it’s important to keep in mind, did not focus at all on the “Don’t Ask, Don’t Tell” government policy. He went after the claims of the law professors that their First Amendment rights had been violated by being compelled to be involved in the discrimination against gays if their universities allowed military recruiters, rather than refuse federal funds.
The chief justice made clear that the “Solomon Amendment neither limits what law schools (and their professors) may say, nor requires them to say anything” (emphasis added).
The Solomon Amendment, he stressed, “affects what law schools must do—afford equal access to military recruiters—not what they may say or may not say . . . Students and faculty are free to associate [under the First Amendment] to voice their disapproval of the military’s message.”
They could, he added, “put signs on the bulletin board” or “they could organize student protests.”
A law professor among the plaintiffs, Paula Johnson at Syracuse University, got the Supreme Court’s point right away: “This could be a very important galvanizing measure” for opponents of “Don’t Ask, Don’t Tell.”
Carl Monk, executive director of the law school association that brought the suit, says the law professors are not giving up their fight: “Ultimately our hope is that gay and lesbian students who want to serve their country by becoming military attorneys will be able to do so.”
As the legendary labor organizer Joe Hill urged—before being executed by a Utah firing squad on a murder charge based on very dubious evidence—”Don’t waste any time in mourning. Organize!”
That organizing consequence of the Supreme Court’s decision was ignored or obfuscated in much of the press coverage. An exception was a March 8 editorial in USA Today: “Time to Repeal ‘Don’t Tell’ ” :
“There’s opportunity . . . to raise awareness about the costs of ‘don’t ask, don’t tell’ and intensify efforts to overturn this wrongheaded law. Since 1993, about 10,000 otherwise qualified gay servicemembers have been forced out, including those in crucial occupations such as code-breakers, intelligence, and medical specialists, air controllers and translators.
“The U.S. ban on openly gay servicemen is an archaic and hurtful assault on people who want only to serve their country. The Supreme Court did what it had to do. Now it’s Congress’ turn to do what it ought to do and repeal the ban.”
This would take pressure on Democrats in Congress and on those libertarian conservative Republicans who have opposed the administration on civil liberties grounds. How can these libertarians justify banning gays and lesbians who want to be military lawyers? There’s time to mobilize before the midterm elections.