One of the more frustrating things about being a lawyer is when a very interesting case completely overlooks the larger context in which it is set. Such was the case this week when the Supreme Court heard arguments in a case over whether the government can legally cut federal funding to law schools who have banned military recruiters from campus on the basis that the military discriminates against gay and lesbian students.
The case stems from the Solomon Amendment, a statute that allows the government to restrict federal funding to aid recipients who do not allow equal access to federal recruiters, including the military. In the past, law schools banned military recruiters because the schools do not allow any recruiters who discriminate and because the military’s Don’t Ask, Don’t Tell policy does discriminate against gay and lesbian students. The most recent change to the Solomon Amendment, providing that such action by one part of a university could put in jeopardy federal funding for the entire university, was intended to put the squeeze on the law schools. It worked. Facing a loss of billions of dollars in funding for research and financial aid, universities forced their law schools to allow military recruiters on campus. Unhappy, a group of law schools sued.
The Court of Appeals found for the law schools, concluding that enforcement of the Solomon Amendment forced schools to propagate the military’s message of discrimination, thus violating the law schools’ collective right to free speech. The Supreme Court, however, appears to see things differently. In oral arguments on Tuesday, the justices seemed sympathetic to the government’s claim that they desire equal access, not any endorsement of military policies. Chief Justice John Roberts summed up the government position, “If you want our money, you have to let our recruiters on campus.” The schools could, of course, refuse the federal funding and continue to bar military recruiters, but a stand on this principle, the schools have determined, is not worth the large sums they would forfeit as a result.
Although this case may be interesting to constitutional law scholars, the debate about military access and free speech is really a legalistic offshoot of a separate and more interesting debate about the wisdom of continuing to ban gays from the military. The case provides an opportunity to reevaluate the root of this issue. Since 1993, the military has operated under the supremely silly Don’t Ask, Don’t Tell policy in which gay Americans could serve in the military so long as they do not engage in “homosexual conduct” – a category that includes admitting you are gay. If the military determined that this discriminatory policy were no longer useful, the debate about access to law schools would be rendered moot.
The military has been resistant to admitting gays in the past and remains so today. There is concern that gay soldiers could disrupt a military unit’s cohesion by creating tensions among soldiers and eroding morale. However, in the dozen years since enactment of the Don’t Ask, Don’t Tell policy, public acceptance of homosexuality has come a long way. In those same dozen years, more than 10,000 gay servicemembers have been discharged for being gay. At a time when troop recruitment is slumping and many of our soldiers are facing the prospect of multiple return trips to Iraq, the military may be more open to allowing all willing Americans, regardless of sexuality, the opportunity to serve.
On this issue, the United States is out of step with the majority of NATO militaries as well as that of Israel. In 1999, the United Kingdom lifted a ban on homosexuals and allowed gays to serve. The reaction to lifting the ban has been “less dramatic than expected,” according to Michael Codner of the Royal United Services Institute, a research group with close ties to the British military. Codner did acknowledge that acceptance varied by field: “If you’re a paratrooper and you’re gay, you probably keep your head down, whereas in other units, such as the medical services, it’s less important.”
The American policy has led to the discharge of 54 Arabic translators, an area of desperate need for the military, and an area where acceptance of gay service members would likely be high. Lt. Col. Allen Bishop, a West Point professor who has argued for the law’s repeal, wrote “The war in Iraq highlights the shortsightedness of discharging Arabic linguists who happen to be gay.”
To say that the presence of homosexuals in the military would erode morale underestimates the number of service members who would accept a gay peer and caters to the prejudices of the minority who would not. The military has always been a leader in providing opportunities to a diverse group of Americans. It is time not only to think about whether the military should be allowed to demand access to law schools, but more importantly, to rethink the wisdom of continuing to exclude gay Americans from serving their country.
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