There is something somewhat ironic about the way JAG recruits. Unlike most law firms, an student at an accredited school can get an interview with one of the JAGs (usually conducted by a “Staff Judge Advocate.” (An accession board makes the final determination.) The recruiters on campus generally are not the Staff Judge Advocates and don’t have the same power that a recruiter from a law firm would. Usually they can just distribute literature and tell people what is one the websites. The result is that no matter what school people are going to, someone interested in becoming a Judge Advocate will have the same ability to be recruited regardless of whether the school lets recruiters in or not. In my experience, people decided to become JAs not based upon a presentation made in school but based on the fact that the stuff that JAGs do is widely-known (usually) respected. (I know many JAs and they are quite a diverse bunch – politically, economically, scholastically, and ethnically.)

Also, unlike firms, JAG has several other recruiting mechanisms open to it, such as ROTC, the Graduate Law Program (wherein officers are paid by the military to attend law school) and the FLEP and ELP.

Therefore, both the constitutional challenges and the defenses to the lawsuit ignore the reality of the way JAG recruiting works. I don’t think the makeup of JAG would be any different with or without the Solomon Amendment. Indeed, I don’t think there would even be a higher percentage of gay military lawyers without the amendment.

But, this is fine, I guess, because the government has an obligation to at least try to defend its statutes, and the school might rightly feel that they are having their core values interfered with. (I have tried discussing the actual substance of the 3d Circuit’s decision, but most people on here were interested in insulting me or shouting slogans – and nobody read it – so I will have to do that in other forums.)

My (somewhat educated guess) on the subject is that the government is just going to wait for a definitive ruling from the Supreme Court on this issue. If, for example, the funds were to be cut from some schools but not others, and the FAIR ultimately prevails, it may be quite burdensome to figure out how to remedy such a wrong.

Larry, at 9:44 am EDT on September 16, 2005

Irresponsible

The government has a right, like any donor, to make its gift conditional. Neither Harvard nor any other school has any right to question those conditions — they should either accept them like responsible servants of society or reject them and relay on their ample endowment ($25 billion) for funding.

Kevin, Undergraduate, at 6:40 am EDT on September 18, 2005

Congressional Power

Note that Congress, after Kelo, and some number of other contreversial supreme court decisions, took steps to prevent lower levels of government from exercising their new powers — explicitly restricting their excercise of the constitution as the court saw it under threat of losing federal funding.

We likely can do likewise with other portions of the federal government aid — if we can extend this provision to the use of the 6th amendment, we can likely attach more limited limits to the first amendment as a condition for funding.

These limits, of course, assume that campus codes that exclude anyone who agrees with don’t ask don’t tell are protected under the first amendment to begin with. It seems more like a restriction on speech that an expression of freedom.

Kevin, Undergraduate, at 10:52 am EDT on September 19, 2005

Spending power

The point everyone seems to miss in this argument, and that Judge Aldissert makes emphatically in his dissent in the 3rd Circuit opinion that generated this case, is that this is a spending power issue. There are no 1st Amendment rights implicated. The use of the 1st is just a dodge by FAIR to get to strict scrutiny because spending power issues only get rational basis scrutiny. Aldissert makes another good point, even if a 1st Amendment issue could be found, it is so attenuated that it is grossly outweighed by Congress’ power to organize, train and equip the armed forces. Just because the state action in question offends a law school’s interpretation of what it thinks discrimination should be defined as does not mean that it is discrimination. In this instance the “discrimination” is legal under federal law. If these law schools disagree with the law and choose to ban recruiters in protest, then Congress has to power to not give them funding. There is no right in the constitution, express or implied, to federal funding. Its all discretionary. The expansive holdings made by the Supreme Court in recent years have distorted this truth. Sadly, not enough people, including lawyers and law professors, actually read the constitution and think about what it means. You just can’t contort it to fit your particular outlook on life.

Dan, JD, at 5:28 pm EDT on September 19, 2005

A few points

H. R. 3083 is the primary bill intended to constrain the actions of lower government in their exercise of “takings.” It prohibits takings on the grounds of economic development on pain of loss of federal funding. The explicit intention of the act is to “To protect homes, small businesses, and other private property rights, by limiting the power of eminent domain.”

H. Res 340 expresses disapproval and makes a statement of the house’s intention of limiting the exercise of the new powers enumerated in Kelo.

While similar restrictions can be found following other older court cases, this should reinforce the point sufficiently. Similar cases arose in some aspects of criminal jury rights, and several were later struck down by the judiciary (hence the 6th amendment referance). This would be a more direct intervention in a different manner thant the others — it is less important for the moment.

While the majority on the third circuit may disagree with Dan, I am not certain that the supreme court would uphold their rather expanive view of the protection of the first amendment. The idea that their ruling may be overturned if the current case reaches the Supreme Court is worth exploring, and I don’t doubt that there are a number of people advocating exactly that reading.

Kevin, Undergraduate, at 5:43 pm EDT on September 20, 2005

Only 2 judges of the 3rd circuit believed that the Solomon Amendments violate the 1st Amendment, the court was not sitting en bank. A different panel of the same court could have easily decided differently, as several other circuits have in holding the statute banning homosexuals in the military is constitutional. While the FAIR v. Rumsfeld holding is binding in the 3rd circuit, it isn’t anywhere else. The reason cert was granted on the 1st Amendment issue is because that was the basis of the holding. It will almost certainly be reversed by the Supreme Court because the military is not limiting the associational rights of people at law schools, nor are they compelling anyone to engage in speech. FAIR claims that the law schools are being forced to engage in speech and association they do not agree with because the presence of the military promotes an anti-gay message. That is a very weak argument. If any associational rights are being impacted, it are those of the individuals who want to meet with the recruiters to investigate the possibility of serving as a JAG. If the recruiters are banned from campuses they will not be permitted to associate freely. Either way, nobody is forced to associate with the recruiters when they are on campus. People are free to meet with them, or not. Regardless of all these legal wranglings, there is no speech issue here. FAIR isn’t raising an associational rights issue of any gay students, who could possibly have a claim on their own. They are saying the institutions are being forced to engage in speech they don’t like, and that violates their first amendment rights. Their 1st Amendment rights are no more important than the students who want to meet with recruiters.

There is a difference between this situation and a grant conditioned on the basis of race or religion as you mentioned. Homosexuals are not a suspect class under the law, and are not a religious entity, so they do not get strict scrutiny. Therefore, rational basis applies, and almost all legislation is upheld under it. My point with the expansive holdings of the court is this. The Supreme Court, by expanding its interpretation of the constitution as greatly as it has, has created problems like this where any group can go to the court and have valid legislation struck down on the basis of very attenuated arguments. Just because somebody doesn’t like a piece of legislation does not mean it is unconstitutional.

The Solomon Amendments do not offend SD v. Dole. The spending at issue is money given to educational institutions to aid students. By keeping the federal government from being able to recruit students on campus, there is a direct conflict between the purpose of the funding, and the government’s interest in assisting students in obtaining an education which will make them qualified for federal service. While not all college graduates and law school graduates will go to the military or work for the government, many do. So if the colleges are going to make it difficult for the military to recruit qualified college graduates, Congress may restrict access to funds because the activites of the colleges have an impact on one of the purposes of funding education.

While the constitution is capable of different interpretations, some are so ridiculous that they just can’t be justified. The 3rd circuit’s holding in this case is one of them. Despite what many want to believe, the Constitution does have inherrent meaning. It does not only mean what the Supreme Court, or any other court, has most recently said it means. Remember, the Supreme Court at one time said that slaves were property, not people, and that spearate but equal was ok. That should be enough to cause second thoughts on the notion that the Supreme Court possesses some greater wisdom than the rest of us. In general I agree with the holdings that the Supreme Court have made in most areas of the law. However, their 1st Amendment decisions are a mess, especially in the area of religion and speech. They leave people guessing as to whether their activity is protected or not. This is because the courts have excceded their mandate by weaving the values of the judges into the cases they decide in order to fit their particular leanings. Instead of deciding cases and controversies arising under the constitution they are creating them with holdings such this one.

Judge Aldissert was right because he engaged in a proper analysis of the law, and applied it to the facts of this case. He chose not to engage in intellectual gymnastics just to reach a result that pleased his personal feelings on the matter. When the Supreme Court takes up this case this fall I am very certain they will follow his lead. The court has been moving in a direction more grounded in that law, and I expect that will continue under Roberts.

Dan, JD, at 4:18 am EDT on September 25, 2005

Larry, The law schools are arguing that by being forced to allow recruiters on campus, they are being compelled to support a message that they don’t agree with (one that violates their anti-discrimination policies). That is their first Amendment argument. That is why they invoke the Boy Scout case, because it held that the organization was the message. The difference here is that the schools are free to not accept any federal funding if they don’t wish to associate with the military and don’t like its policies. Then they can convey their own message. If they don’t take the money, the military will stay away. They have no right to the money, and the federal government doesn’t have to give it to them. They want to have it both ways. They want the money, but don’t want to have any strings attached. I mention the associational rights of students because they are the ones who are really impacted by this. Arguing on behalf of the students’ associational rights I think is a stronger argument in their favor, but that is not the approach they took.

Having spent 10 years in the military I understand the rationale behind the law that bans homosexuals from serving openly. I don’t think it is really all that necessary these days, but its the law. Many people I know in the military feel otherwise, but that is mostly based on their personal or religious views about homosexuality, not the ability of the individuals to serve. Lawrence v. Texas is an example of what I mean by the Supreme Court making a mess of things. Because of that decision, people are now thinking that homosexuality may be a class deserving of a higher level of protection. I happen to think that it does not because the distinction being drawn is based on voluntary behavior, not gender, race or ethnicity. It is simply different. Anti-sodomy laws were out moded, and most had already been repealed by the time Lawrence was heard. The few states that still had them rarely enforced them. But did that mean that the Supreme Court should step in and declare unconsititional laws that predate the constitution in their history? Are we now going to knock out drug laws because addicts are being discriminated against? While that sounds a bit ridiculous, people argue all the time that addiction is a disease that is a product of in inherrently addictive personality. So an addict’s behavior is something he is born with? People do make that argument, as ridiculous as it seems to sound. Should we ban all laws that curtail behavior that society finds distateful? If we continue down that road we will have no more laws.

Perhaps Dred Scott wasn’t the best example to use in this situation, but it is a case where the Supreme Court has taken a lot of heat over in its history. Slavery wasn’t considered unconstitutional at that time, but with the Bill of Rights’ focus on individual liberty it is hard to support a finding that slavery didn’t violate DP. Yes, the BofR wasn’t held binding on the states until the post civil war amendments, but the notion that people were property and slaves weren’t citizens even if they were born here is not something the court should have sanctioned. Plessy v. Ferguson is a better example of my point. That was decided after the post civil war amendments, and was a mistake that the court later corrected in Brown v. Board. So the court does make mistakes, and therefore it does not follow that because they said its so it must be right. The Supreme Court has made many wrong decisions in the past. However, I am sure that there are plenty of people who think the cases I feel were wrongly decided were right, and the ones I think were right were really wrong. That is where personal philosophy enters the mix.

I don’t agree with your assessment of Aldissert’s dissent. I read it together with the majority opinion, and found it much more reasoned and intelligent than the majority. I thought the majority opinion did exactly what you feel the dissent did. They were reaching to get the result they wanted. Aldissert clearly stated that this was a spending power issue, and congress can spend money or not spend money at its discretion. He also argued that the congressional power to organize, train and equip the military allows it to restrict spending in this way. That seems pretty clear to me, and based in sound legal principles. My point with the 3rd circuit is that there easily could have been another judge that would have gone the other way. If that decision wasn’t challenged by the 3rd en banc, then it too would seem like a statement of the whole circuit. If the court was en banc then I would consider it to be a more authoratative statement of the circuit because they stood by it. Perhaps they chose not to make that statement because they would rather let the Supreme Court do it (ie: they punted it). Since it was granted cert I guess we will find out whether the Supremes agree with them. That being said, they could just as easily make the same decision the 3rd circuit did. Again, if they do that is doesn’t mean they are right.

Ultimately people will view this case in light of what their particular beliefs on the issue are. Given that the underlying statute here (which prevents homosexuals from serving in the military openly) has been on the books for decades (I think it was passed in the 1950’s) and has survived constitutional challenges, I see no reason the Solomon Amendments can’t pass constitutional muster. Maybe it is a harsh law, but that is only because these universities have forgotten that they are not entitled to federal funding. They recieve money at the government’s discretion. When I was an ROTC cadet in the late ’80’s and early ’90’s, the new chancellor of my school thought he was going to appease his liberal friends on the faculty and kick ROTC off campus. He learned quickly that if he did, the federal government would pull all of their research grants from the school. Since Pitt is a major medical research university, that would have been a huge blow. After that he decided it was smarter to lobby congress to change the law. FAIR should take the same approach, because pursuing the course they are now will only cause them to lose.

Dan, JD, at 3:00 pm EDT on September 25, 2005

Equating homosexuals to addicts is insulting

While I have enjoyed reading the positions put forth it struck me like a slap to have a thoughtful argument turn on a dime into base emotional hatred with no acknowledgement that the realm of ideas just stopped. I can only imagine that the comparison was made to an addict because otherwise wise people still fear us as predators, unable to control ourselves. I’m known I was gay at around the age of 6 but prayed and hoped it would go away, but it never did. After finally meeting people like me when I was 25 I found myself happiest alone and so remain so as I near 45. I’d also like to add that it is not easy or even possible for many homosexuals to pass as straight; nor should they have to. I think it is obvious the most gays and lesbians are different than straight people in many ways that can be observed although far too many try all the time to blend in. It’s time to stop the persecution, hatred and murder that the military still tolerates and perpetuates. My father was a Navy lawyer and he still is burdened by the lives he sometimes destroyed when he was forced to bring the full weight of systematic bigotry and ignorance upon good men and women born gay.R. D. Sogge

Ronald Sogge, University of Michigan, at 7:09 pm EDT on October 4, 2005