Asking,AndTelling

Legal issues make my brain hurt.  Too much intricate jargon for my pretty little head to absorb. But the case currently heading to the Roberts' Supreme Court, concerning the Solomon Amendment and the access that the military wants to top law schools in this country to recruit, is shaping up to be a fascinating story.  In a nutshell, schools like Harvard claim that they are exercising a form of free speech by banning military recruiters from their campuses because the military won't, and can't while the draconian Don't Ask, Don't Tell policy is in place, agree to non-discrimination requirements for recruiting on their property.  Here's the rub: Harvard alone receives about $400 million from the government each year.  The Solomon Amendment ties that money to a stipulation that the schools grant the military access to their students. 

I'm not as interested in the legal intricacies of this case, although it looks pretty clear that the court is leaning toward the government.  Scalia took the best swipe at the schools by huffing "You cannot convert a law into a law directed at First Amendment rights—can you?—by simply saying the reason I am disobeying it is to express, whatever disaffection with the war, homosexuality, or anything else."  That's true, although one could safely retort that his job is to determine the constitutionality of those laws.  The government does appear to have a pretty airtight case, however. 

More importantly, it seems to me that this is a case that tests the boundaries of common sense when it comes to gay rights' battles.  Robbie over at The Malcontent does a wonderful job laying this issue out, and you don't want to miss the feisty comments (82 and counting) below the post.  I somewhat cheekily pointed out that if there are any free speech issues in this case, they lay on the side of the military, which has been effectively banned from laying out its case to the best and brightest at our leading universities.  Are we really so jaded about our youth that we don't trust them to understand and grapple with the issues of discrimination and fairness that schools like Harvard wish to expunge from their sight altogether?  Justice Breyer made a similar point when he quipped “the remedy for speech you don’t like is not less speech. It is more speech." 

But the schools balk that they are banning the military on the principle involved, and that their students wouldn't "believe them" that they oppose the discrimination of DADT if they allowed the recruiters to set up shop.  The new Chief Justice effectively squashed their lofty rhetoric with the brutal response, "The only reason that they don’t believe you is because you’re willing to take the money. You’re saying, ‘This is a message we believe in strongly, but we don’t believe in it to the penalty of $100 million dollars.’”  As Professor Reynolds might say: ouch.  These quotes all come from the Harvard Crimson piece linked above, which is definitely worth a full read.

In the end, I agree with Robbie that we need to start choosing our battles more carefully.  Does the gay rights establishment want to be the lobbying group known for further marginalizing us from the mainstream of society by painting us into a far left corner where our only allies are abortion rights groups and anti-military wingnuts?  The answer appears to be yes at this point, which is a shame because we are most definitely at a crucial turning point in the history of our civil rights struggle.  Even old wardogs like my retired Air Force father agree that DADT is a stupid policy that keeps essential servicemembers from serving their country merely because they aren't ashamed of their sexuality.  The tide is turning, but groups like FAIR are cutting off our noses to spite the government's face by attempting to ban recruiters from our campuses. It is the wrong arena to take on the military on the discrimination issue, and will only serve to alienate us from the middle of the ideological spectrum, where we clearly need to be in order to achieve our goals. 

Comments

[Josh]

Amen.

[AGJ]

Excellent post.