There is extremely important point that was raised at Volocks, that the "don't ask, don't tell policy" that is so controversial and is at the heart of this case is not a policy, it is the law. The Military, by law, cannot do anything other than discriminate against homosexuals in accordance with "Don't Ask, Don't Tell".

That being said, however, I feel that schools should be free to choose who they want to allow to recruit or do any other business on campus without government regulation. Using the greenmail threat of withdrawing any federal funds that would ordinarily be available without prejudice because an institution doesn't fit some politician's criterion as "good" is grossly unfair. We taxpayers have no choice but to pay our taxes and we have little say in how that money is spent, so when politicians use the power to tax and spend to also coerce "good behavior" from those who might receive it, it is essentially a dictatorial power.

Where does this stop? You don't get your social security money unless pass some arbitrary test of "good citizenship"? I find this very troubling.

Clement went quite far in saying that the Solomon Amendment would permit university and law school officials to engage in robust protests against military recruiters -- including jeering when they walk into the room at a jobs or career fair.

We all know that when you protest against military recruitment, nothing happens.

The Military, by law, cannot do anything other than discriminate against homosexuals in accordance with "Don't Ask, Don't Tell".

Yes and that is why the law schools will unfortunately lose. This is when I wish we DID have judges that stepped in and legislated from the bench (although not conservative judges :).

I can't believe more people aren't pissed that the government uses our tax money to threaten the institutions that we send our kids to.

Of course the right wing is so anti-intellectual, anti-education and anti-university that it's not surprising they wouldn't care. Plus more uneducated just means less of them have to get off their asses and actually fight in the wars they spooge over.

This is a fascinating issue. At the time it was passed, the "Don't Ask, Don't Tell" law was considered a groundbreaking compromise. Prior to that, the military subjected those who were found to be gay (by their own admission or by any other means) to disciplinary action and dishonorable discharge. "Don't Ask, Don't Tell" is better for gay soldiers than the previous set of rules which allowed gay "witch hunts" and in which soldiers/airmen/sailors were forced to live deeply closeted lives. It doesn't go far enough, though, and I hope I live long enough to see it revised to allow GLBT servicemembers the freedom to be themselves.

There are two really seperate issues here.

1) Whether "Don't ask, don't tell" is the right policy.

2) What rights do Universities have when dealing with employers of their choosing.

On the first, you'll hear arguments all over the board, even in the Military. Many don't care about what the 'closet' status is. If they're good troops who follow orders and do their jobs, then they should be able to serve (always though, I've heard, as long as they keep their advances to themselves or of like minded). There are some that do care, because it is impossible to erase every ounce of privacy and individuality. An interesting arugument I read on a military messageboard was, if all troops are the same, why don't men and women shower together, live together, get judged by the same PT standards, etc. (Starship Troopers, the movie). People have a certain level of privacy when living together. It is something very personal. Do openly gay people get their own living environment? Obviously men are men, that doesn't change, but overlooking the psychological aspect is a mistake. A Soldier may not care if his buddy his gay, but he may mind to expose himself infront of him. Just like a male-female platonic relationship. I'm not a pych. person, so I won't claim not know anything. Don't ask don't tell is really a practical balance, for now, the US Military see's it can afford in maintaining an aggressive fighting system. Other countries have mixed units, but those nations don't field large enough armies, so loosing out on ANY recruit is a detriment.

Joining the Military is a transformational process where much of your individuality is locked away for certain time proven reasons, foremost, survival and the ability to fight/win. When women were given a larger role (or African Americans), some argued that it wasn't that they couldn't do the job (though many did), but can the overhead cost be justified in integrating them into units? Why spend more money for bodies when plenty are availabe that don't have altered requirements?

Particularly in the case of women, the cost, in the eyes of brass WAS justified. 50% of the population (for women) and whatever the percentages of other minorities were at time was a significant population/resource. It wasn't a civil rights thing as much as a cost benefit analysis. It's a cold and hard fact of the Military. It used to be that a medic (and still may be), given the choice between a severly injured comrade vs. a moderate-severely injured one has to follow protocol and attend to the slightly less critically injured one first? Given today's technology, this may have changed. But it hightlights to what extent everything breaks down into numbers for the Armed forces of ANY world.

2) I think campuses have a right to allow whomever they want on their property for recruitment. But federal money CAN be pulled away, because that's the right of the federal govt. The college is not entitled to the money, just as the federal govt. is not entitled an automatic recruitment depot. If Motorola consistently pays a portion of a university's bill, but is barred to recruit students, do you think that's a fair deal?

Simply put, neither side has a 'right' to anything. School doesn't have that for money, the feds don't have that for recruitment. Laws can be encated to strike a deal, thats how a federal republic works. But these aren't rights were talking here (Serving in the military AND schools getting money).

I'm not a pych. person, so I won't claim not know anything

I mean't that I don't claim to know anything.

And I can't spell.

Gujadude
While I agree with most of your long comment, I have one objection: while the government has "the right" to withhold funds for largely political reasons that does not make it right. The government is not in the same moral category as Motorola. They got their money by direct force from the people. The people expect this money to be spent for the common good - not for the betterment of the dominant party's power. If the dominant party begins using their power to deny funds from the institutions that do not share their political views, that is a clear abuse of power.

Michael:

The people expect this money to be spent for the common good - not for the betterment of the dominant party's power. If the dominant party begins using their power to deny funds from the institutions that do not share their political views, that is a clear abuse of power.

I see what you're saying and have reservations about what big brother can do with my tax money. But the definition of what 'the common good' is constantly changes. Some believe that preventing recruitment of an all volunteer force is against the common good, too. Where and how to spend federal money is an issue much larger than this one. Every American should have the opportunity to serve, if they wish. But people forget that the Military is about serving and becoming a part of the machine, not the other way around. Many don't qualify based on several factors, including psychological.

What makes this complicated is that several other issues, including the one highlighted here:

Take for example the pharmacists that oppose filling a prescription to the morning-after pill.

Only way to get the Feds to recruit out of closet folk is to show them the potential value of having this population as resource.

While the desire for gays and lesbians to serve in the military is admirable, the law schools approach to this matter is ham-fisted. As other posters have pointed out, if law schools want to ban the military from recruiting, fine – just give back the cash. The power of the purse is one of the basic lessons of junior high civics.

As Gujubhai stated, the military is unlike any other organizational body in the U.S., where the rights of the individual are explicitly stated to be secondary to the functioning of the unit. That is not to say that the prejudices of today will hold true permanently. Just as generations ago, it was considered impossible to have white and black soldiers fight in the same units, so too hopefully this notion that gays cannot serve openly will see bizarre in a few generations. Other NATO countries, Israel, and I believe Australia as well allow open homosexuals to serve, and there does not seem to be a problem.

This also reflects badly on the behavior of law schools in general. Somehow, I do not see university computer science and engineering departments (who probably also have gay faculty, staff, and graduate assistants and also receive substantial federal funding) approaching this matter in quite the hyperbolic fashion as the law schools. But a gay chemist does not arouse the same passion on TV talk shows as a gay law student

Hey Abhi, what did you mean by "I am a big time supporter of the military"?

Hey Abhi, what did you mean by "I am a big time supporter of the military"?

I meant that I am all for the military trying to improve itself by recruiting the best and the brightest, and I am supportive of people that are in the armed forces. For example, let's not forget that rank and file military officers and people in the JAG are against torture of captured prisoners and are usually about a year ahead of their political bosses in their assesment of reality on the ground.

An excerpt from Nathaniel Fick's One Bullet Away: The Making of Marine Officer (yes the same twenty something who doesn't have much to say)

The crowd was the usual mix of students, faculty, and retired alumni. After the talk, a young professor stood. "How can you support the presence of ROTC at a place like Dartmouth?" she asked. "It will militarize the campus and threaten our culture of tolerance."

"Wrong," replied Ricks. "It will liberalize the military." He explained that in a democracy, the military should be representative of the people. It should reflect the best of American society, not stand apart from it.

Ricks used words such as "duty" and "honor" without cynicism, something I'd not often heard at Dartmouth.

abhi, was your comment for real? If it's a bad law, change the law......

*I agree, it is a bad law.

**And, I submit, that 'intellectually ghettoizing (sp?)' the military by keeping recruitors off certain campuses is a bad idea in the long run. If these law schools feel so bad about the law, why don't they work to change the law?Seems that protesting recruitors is the easy way out.

Michael H-

Wasn't the 21 y.o. drinking age tied to federal money for roads? This sort of stuff has happened plenty in the past: using federal funds to push certain kinds of behavior. It's nothing new. I'm not saying it's a good idea, but it's not at all new, is it?

abhi, was your comment for real?

Which comment?

I say let the military recruiters come to the law schools and make things as difficult as possible for the military. Give them the worst dates, the worst places to interview and generally treat them like a good law school would treat a 2 lawyer law firm.

I say let the military recruiters come to the law schools and make things as difficult as possible for the military.

Amusing but you would rather make the military weaker and less diverse than allow them equal access to qualified candidates? Not so sure that’s a bright idea.

Protesting military recruiters is short sighted and a classic case of kids with too much fervor/time on their hands and a misdirecting that energy. If you want to change the military I think the best way to do it is from the inside out. Once enough of the old guard croaks the military will change. Sure the change will not be as fast as in general society but I'm not so sure that's a bad thing. The military is like any other large organization there are all sorts of thought and feelings on this matter. Of course Don’t Ask is a silly concept. Many in the military feel the same way- they just aren’t in charge yet. Limiting the people who can be in the military, for whatever reason, weakens the military and sets back the cause for an indefinite period of time.

There are plenty of LGB people in the military. I’m sure they have found many ways to cope with our arcane rules and I am equally sure they know better than to stare too long or to appear anything outer than inconspicuous. It’s not like they thought they were joining a gay friendly organization. They know they have to keep their head down low otherwise it will be cut off by the nearest redneck with a sexual insecurity.

The law schools should show some degree of moral courage and simply reject the money. If gay rights and equality are really something you feel strongly refuse the money. The law schools want it both ways- give us the money and let us make it as difficult as possible for the recruiters. Well that’s a violation of the law and has penalties attached to it. Our military needs the best personnel it can find to help win out nation's wars. Making that job more difficult is neither in our nation’s nor gay civil rights groups’ interests.

This isn't a free speech issue. Law students and law schools are free to do whatever they like, issue as many statements as they like and even ban the military all together. However, if they do the latter they will pay a penalty. Colleges can do whatever they just aren't willing to make the sacrifice to do so. Why should a government (us as taxpayers) support institutions who make it harder for us to defend the nation? Why should we support institutions who violate the law? I lok forward to the SC opinion.

Why should a government (us as taxpayers) support institutions who make it harder for us to defend the nation? Why should we support institutions who violate the law?

Most of what you say seems fine to me but this sentence is misleading. You are using the classic tactic of "if they are against the government's policy then they are against defending the nation (and they aren't patriotic)." Bull. The other side will argue that the current policy sucks and that our nation would be BETTER defended if they changed it. As a taxpayer I feel my money would be better spent if our military openly allowed gays in it who would do a superb job in defending my freedoms. I don't want my tax dollars misspent because of "arcane rules."

KXB:

Somehow, I do not see university computer science and engineering departments (who probably also have gay faculty, staff, and graduate assistants and also receive substantial federal funding) approaching this matter in quite the hyperbolic fashion as the law schools.

The California populace is fairly convinced about the ills of electronic voting machines today -- after a fairly involved lobbying effort by a bunch of computer scientists. The reasoning is neither highly technical nor based on years of specialized training, yet the Chemists Union hasn't, AFAIK, issued a statement one way or another.

Why then is it surprising when a group that debates law for a living is particularly interested in such a matter? Just because other groups haven't chimed in doesn't mean they don't care ...

Abhi,
Thanks for your comment.

Preventing the military from recruiting from the largest pool of possible candidates weakens the military. Weakening the military is not in our nation’s best interest. That is all I’m saying and it is a straightforward and I think logical argument. I encourage you to attack it not a made up notion of what my argument is. The part about protestors being unpatriotic is you inserting something that was not in my post. Convenient but not accurate. Let’s stay on point here.

I'm sure the people who are protesting love their country and I'm sure the people who serve in the military love their country. I'm not questioning anyone's patriotism- I'm in no position to do that. I am questioning their tactics to affect change.

If you want our money better spent encourage your legislator to amend or repeal the Solomon Amendment. Otherwise you’re encouraging people to break the law. This isn’t about your tax money its about breaking the law. Civil disobedience aside I’m not sure this is the best tactic to get the military to allow open homosexuality in the military. Maybe it is, I just don’t think so.

If a gay person want to join the military he or she is free to do so. Just be quiet about your sexuality. I don’t like the idea of having some deny who they are in order to serve but I don’t see how the current Don’t Ask law, if repealed and replaced with a more liberal law, would substantively change anything for LGB people who serve. They will still keep their heads down for the same fears that motivated their silence under Don’t Ask. I’m not really convinced that Don’t Ask is preventing LGB people from serving. If they want to serve they will serve in spite of Don’t Ask.

I'm not saying protesting is un-American or even not somewhat valuable. I am saying, however, that the tactic of banning recruiters is not helpful to the nation or the cause which we all believe in- equality for all.

As I understand it, these law schools are perfectly willing to give the military ACCESS to their students. They may even allow on-campus meetings between students and discriminatory employers, if the interested parties organize it themselves. They draw the line on forcing their faculty and staff to ARRANGE or ACTIVELY ASSIST these meetings, because faculty and staff should not be forced to "assist[] deliberate discrimination against their own students."(Here's one law school's policy)

The law schools should show some degree of moral courage and simply reject the money.

In fact, one or more of these law schools has already stated they WILL forego the money, if and when the Supreme Court rules against them. They're just not going to let the money go without first fighting what they see as an unconstitutional policy. They're showing plenty of moral courage by standing behind their students, in the face of overwhelming pressure to cave in for the cash. (Loyalty: a very military virtue.)

the military has historically been given special deference by courts - there has always been a sense that rules which work for "civilians" don't necessarily work for the armed forces - a valid point (um, to an extent)

i'm not sure that the answer in this case is obvious
-schools do not want to lose federal $, but at the same time may be exploring their ability to influence federal policy, all the while accepting federal aid

-the Justices quickly picked up on this possibility - if now the Solomon Am., what next? and should gov't. policy (however misguided it may be) bow to the wishes of law schools - by no means a body representative of the "people" (however misguided they may be)

-on the other hand, though it is possible for law schools to provide support while also conveying their stance on the topic, how far can they can go in makng their point? i for one, do not buy the gov.'s "robust jeering" argument

Arj,
You better not be my brother with the same name!

Agreed. I applaud those school who will choose to forgo the money. THAT is courage.
I suspect, however, that the schools who choose to demonstrate that courage will be few and far between.

I still don't know how I feel about the Solomon amendment. The principle of withholding federal funds in exchange for certain basic behavior has been a boon to civil rights. I do think there's a big difference between requiring universities to adhere to certain basic standards of civil rights (which should include orientation tolerance, though those are of course tacked on by the universities themselves), standards which are now part of our constitution, and using that same pressure to require universities go along with a relatively narrow policy statute.

But the bottom line is that don't ask don't tell has to be changed. Newsflash: the British armed services abandoned their version and are doing just fine.

abhi - the legislate from the bench comment :)

I agree with Saheli - I have mixed feelings about the Solomon Amendment; the problem is that this sort of thing has been used for and against policies that I may or may not support, so I have to decide, do I think this sort of action is good in principle and why? If you give the government power, you better think of the negatives of that kind of power before you think of the positives. I'm still not sure. I do know one thing: universities with healthy endowments don't exactly elicit a ton of sympathy from me. Why not spend some of that money trying to change the law?

And in terms of protecting the rights of gay and lesbian students - why protest the military when it's the law they are following? The law is bad. Change the law. That's where the focus should be. Let students have free access to recruitors and let them decide how they feel about the recruitors. I also think the military culture would more likely be changed by having recruits from these sorts of schools, than not. It's the classic pragmatist versus idealist divide. I'm a pragmatist. Engage with the other!

Oh, and for those who humorless souls who may think I consider our military the 'other', I am being tongue-in-cheek....

Okay, question for law school types related to arj's comments

What is the difference between giving access and actively arranging or assisting? Med school has the match, and then you are on your own after residency, pretty much (you might get a little help, but it's pretty ad hoc). What exactly is the difference in practical terms between the two?

abhi - the legislate from the bench comment :)

MD, I was being quite serious. If we had a judiciary filled with liberal judges and they legislated from the bench, then we would have a near perfect America. Where the system breaks down is when conservative judges get appointed. Then things become unworkable.
;)

Note: I only included the above emoticon in case someone digs this comment up during my future confirmation hearings. It serves to "explain away" the comment.

What is the difference between giving access and actively arranging or assisting?

MD, a lot of these law schools have elaborate "recruitment fairs," where time, space, resources, and personnel are devoted to arranging on-campus interviews between students and employers. In order to participate, employers must typically sign a non-discrimination agreement. The army refuses to sign but still wants the benefit of these programs. This is the "active assistance" at issue, as I understand it.

I believe they could still have "access" by giving talks on campus, advertising through other means (posters, internet), setting up their own interviews with students (even on campus, in some cases) rather than having law school personnel do it.

Sami Al-Arian (Prof. from florida) was aquitted today in the high profile case of anti-terror.

A male juror, whose name was being kept secret by the court, said he did not see the case as a First Amendment issue, as defense attorneys had claimed, explaining that the decision came down to lack of proof. "I didn't see the evidence," he said.

There's a whole lot of useful information on the Solomon Amendment and this litigation in particular at this website:
Solomon Response

CSPAN has links to the oral argument (it's at the top of the page as I type this).

The Congressional Research Service has a summary of the case.

As a response to those who say that LGB people can serve in the armed forces (including the Coast Guard) as long as they "just keep quiet" about their sexuality, I would propose the following experiment. For the next 48 hours, "keep quiet" about your own sexuality. When referring to love interests, boy/girlfriends (past and present), or spouses, use no gender-specific pronouns. To avoid any risk that someone will guess, don't refer to such persons at all. When asked what you did over the weekend, edit your response so that no one can draw any conclusions about your possible sexuality. Don't live in a neighborhood that might be associated with people of a certain sexuality. Don't wear clothes, listen to music, read magazines or books, or watch TV shows that people might use to "guess" your identity. Of course, post no photos of you with your friends or romantic interests. Just to be safe, do not display any photos at home either, because you never know who might see them and tell someone else. Do not have a blog or a website. Don't post your profile on a dating site or chatroom because someone will figure out who you are. 48 hours. Now imagine years of your life and then ask whether all you have to do is "just keep quiet" about it.

I agree with Saheli, and I think that this lawsuit/protest is a really interesting and clever way to approach homophobia in hiring practices and the employee rights/protections of folks who are out.

Most federal programs that threaten to revoke funding do so on the basis of not funding organizations that violate Title VI (the Civil Rights Act of 1964) or Title IX (Gender Equity), like Bob Jones University. Both these laws are derived from the 14th amendment, i.e. both are anti-discrimination laws.

I think putting military recruitment/federal funding and discriminatory hiring practices in conversation with one another is useful and necessary. If the military wants the best of the best, this best includes tons of LGBT lawyers who shouldn't have to remain closeted to keep their jobs.

Queer rights is a rapidly popularizing movement across the U.S. I don't really feel the military's hands are tied; change internal policies/laws. The intent of "Don't Ask, Don't Tell" was not to restrict the level of tolerance the military could exercise, but to provide a minimum standard.

So regardless of how I feel about military recruitment or where the government spends my tax dollars, I feel the issue cuts a lot deeper. And I think law schools should get to keep the money :)

oh gosh... the many things i could say...
but alas i'm studying for my environmental law exam and i'd prefer to steer clear of a long discussion on the pros & cons of federalism and the funding of higher education institutions.

rock on people! you all are smarter than me and making ridiculously astute comments!

i love reading this blog!

What is the difference between giving access and actively arranging or assisting?

The government contends that the Solomon Amendment is essentially directed at "access", which is conduct, not speech. With respect to any speech that is involved, the government claims that law students will know that any speech from the military recruiters is the speech of the military, not the law schools. Further, any speech from the law schools (e.g., emailing students about a career fair) is incidental to providing access. Thus, General Clement stated that there is no difficult constitutional question at issue because these speech rights aren't implicated.

FAIR, on the other hand, is arguing that the Solomon Amendment is directed solely at speech (an argument that Justice Souter apparently agreed with). That is, FAIR contends that the military recruiters are asking for more than access (conduct), but "affirmative assistance" which then creates a conflict between the military's message (discriminatory recruiting) and the law schools' message (anti-discrimination policy). FAIR argues that the First Amendment (and the accompanying strict scrutiny standard) are at issue because of the conflicting speech of the two sides.

Thanks to Abhi for posting on this very important case.

Punjabi JAG,

First, DADT does not serve our military interests at all. Less than two months after 9/11, the Army dismissed six Arabic linguists for being gay. Hundreds of gays and lesbians are thrown out of the military each year for their sexual orientation, though lately the numbers have declined slightly simply because the military cannot afford to lose so many members.

Second, exactly how far down do you expect LGB soldiers to keep their heads? You talk as though the only way someone will be kicked out of the military for her sexuality is if she makes an advance on a fellow soldier, but this is wholly untrue. The military has a well-documented history -- one that did not cease with DADT -- of witch-hunting gay soldiers. If someone spots a soldier coming out of a lesbian bar, she will be investigated and thrown out, even though none of her behavior on base was questionable. LGB soldiers cannot even be honest with their physicians or priests, because statements to doctors, psychologists and members of the clergy may be used against servicemembers in court and discharge proceedings.

People are not protesting this policy because it's merely facially discriminatory; they are protesting it because it has a genuinely negative impact on both the military and homosexual soldiers. Change from the inside is a great idea -- so what have you done lately to lobby for a different policy?

As for forgoing the money, and the difference between this case and South Dakota v. Dole (tying 5% of a state's federally-given highway funding to a 21+ drinking age), consider that the original Solomon Amendment only would take Department of Defense money away from the specific institution that did not permit recruiters on its campus. For example, if the law school did not welcome JAG recruiters, it only lost DOD money. Because some schools were willing to take that loss, the government stiffened its penalties by saying that almost any government money, from any department, would be taken away, including Federal Perkins Loan, Federal Work Study and Federal Supplemental Education Opportunity Grant Programs.

In SD v. Dole, the government threatened only a small loss of funding, and only that which directly related to the aspect they wanted to regulate. The 21 year old drinking age was intended to improve highway safety by ensuring that new drivers would be less likely also to be drunk drivers.

In order to make SD v. Dole comparable to what the Solomon Amendment does, the government would have to have threatened not only the highway funding, but also the Medicaid, food stamp, housing subsidy, education... you get the idea... money it normally gives states. Such a bill likely never would have passed Congress due to the weight of penalty.

When it comes to penalizing those liberal schools for wanting to have a consistent anti-discrimination policy, however, Congress is a lot more willing.

Solomon goes further than what PG said - most of these law schools allow military recruitment, they just wont give military recruiters the same level of logistical support b/c they don't want to be seen as endorsing discrimination. So, for example, they argue that they can't pass out recruiting material that explicitly discriminates, but that hardly stops recruitment.

With respect to whether the presence of homosexuals impairs the military, Congress made specific findings in enacting the "Don't Ask, Don't Tell" policy, including the following:

(13) The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service....

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

Most academics in US are spoilt brats.

M. Nam

Change from the inside is a great idea -- so what have you done lately to lobby for a different policy?

I think this question is unfair, people under the rank of O-6 (Colonel) are rarely in a position to 'lobby'.

Plus, I thought Punjabi JAG's statement was self-explanatory:

I think the best way to do it is from the inside out. Once enough of the old guard croaks the military will change. Sure the change will not be as fast as in general society but I'm not so sure that's a bad thing. The military is like any other large organization there are all sorts of thought and feelings on this matter. Of course Don’t Ask is a silly concept. Many in the military feel the same way- they just aren’t in charge yet.

First, DADT does not serve our military interests at all. Less than two months after 9/11, the Army dismissed six Arabic linguists for being gay.

This is a relatively new occurance. Before, when operational tempo wasn't as high, such losses were of minimal impact.

Hundreds of gays and lesbians are thrown out of the military each year for their sexual orientation, though lately the numbers have declined slightly simply because the military cannot afford to lose so many members

An unintended consequence of the current military picture may be that decision makers say,"We can't afford to lose anybody", and you'll see a policy change. From what some Marines told me, the Navy and Airforce is far more tolerant of openly gay Sailors/Airmen.

... the Navy and Airforce is far more tolerant of openly gay Sailors/Airmen.

That's because they're 'In The Navy.'

They don't call them "Seamen" for nothing ...

When I visited Russia with my high school, we all cracked up at the official speeches lauding 'the Russian and American exchange of fine-quality seamen.'

The numerous bulkheads may also be an attractive feature, for those willing to explore more advanced facets of such seamenship.

PG,

I agree DADT does not serve our military well. That famous tid-bit about firing Arabic speakers for being gay has been tossed around the web so much it’s sticky; I can neither confirm nor deny it (can you?), but it wouldn’t surprise me if it indeed was true.

The stories of people being kicked out of the military for walking out of bars are anecdotal and dubious. The military does not want to lose personnel and will bend over backwards to keep soldiers in the fold. I’m not saying that perhaps some soldiers have been discharged for breaking the rules but I personally know that often times superiors will turn a blind eye to suspicious activity like off base fraternization and what bars a soldier hangs out in. Interesting tidbit- oftentimes the reason people are kicked out isn’t for being homosexual per se, some in the military find that reprehensible, but for later admitting that they lied on their application about being gay. Lying is never tolerated. Just a factoid to chew on.

The bottom line is that the military has a very simple rule, do not draw attention to your homosexuality. Regardless of whether you agree with the rule, I do not, that is the rule the soldier agreed to follow when he or she signed on to serve. If he or she chooses to break the rule why shouldn’t they be punished? If a gay soldier feels he or she can not live up to the rules for personal or moral reasons do not join the military. Of course that is why DADT hurts the military because it turns away those who could be of service to out nation for something we perceive, and many other nations perceive, as silly.

You have to understand the Army though. It recruits from the middle to bottom of the economic barrel from largely rural and red states. Oftentimes the people I help could not get a job at Wal-Mart so the Army seemed the next best alternative. Having an openly gay man in their midst’s WOULD be dangerous for both the gay soldier and destroy any sense of camaraderie within the unit.

Now there is the theory advanced by some progressives that by incorporating openly gay people into the military, often seen as the grandest melting pot in America, that people would have their social prejudice against gays washed away as they see LGB soldiers doing their job professionally and competently. A similar point was put forward for racially integrating the ranks during WW2. There is, I think, some credence to this theory but one has to ask at what cost. At a time of military war should the military being playing in the culture wars as well? It’s a risk that could put soldiers lives at risk and at at a time of war it may not be an acceptable risk to take. Debate rages on…

I would love to see the source for the info that hearsay statements to a physician are per se admissible at trial. They are only admissible if they helped the physician treat or diagnose the problem. Again, show me the source and I’d love to be wrong.

Change from the inside is a great idea -- so what have you done lately to lobby for a different policy?

Really though- that isn't fair. You obviously missed the point and are a selective reader. Post 41 covers it. I said that change from the inside is slow and as the old guard disappears they will be replaced by a more progressive lot that were hopefully recruited from some of the very schools who are now suing to have the military kicked off campus. One of the reasons I’d like schools to allow recruiters on campus is to ensure that some more progressive souls advance in the military.

Punjabi Jag,
Just out of curiosity what was you position when the military filed an amicus brief on behalf of affirmative action when the University of Michigan Law School was sued for their admissions policies? If the military could be progressive then why not expect or hold them to the same standards now? I don't buy your "it would be bad for morale" argument. Being understaffed while in a war seems worse for morale to me.

Abhi,
I don't buy your "it would be bad for morale" argument.

Why?

I do wish the military could be progressive enough to extend their thinking on affirmative action to letting LGB in the military. We should expect them to be as progressive but the fact is they aren't. The next question is how to we as a public affect change in our military. A key way, I believe, is to have more progressives apply and be accepted into the military. Precluding the military from recruiting on campuses hurts this effort.

The idea that not letting LGB join the military is a major reason the military is understaffed is fallacious. BTW the military isn't as understaffed as is bandied about in the media. Recruitment rates are down and re-enlistment is down but we still have more than enough people to have an effective war fighting machine.

Interestingly, the American Legion filed an amicus brief in support of the government and made the novel argument that the Solomon Amendment furthers the military’s interest in to ensuring an officer corps of "quality and diversity."

The brief discussed the benefits of having recruits with different perspectives and from civilian institutions (to counterbalance those from military academies).

Regarding race, the brief (citing to Grutter v. Bollinger) pointed out that the Supreme Court has previously concluded that racial diversity in the military is of vital importance.

I'm not sure I understand the argument of not pursuing an aggressive integrationist policy during a war. Wasn't the military racially integrated at the end of WW2 and in the pause right before US entry into the Korean War? I mean, we're constantly bombing someone - when's a good time to integrate if not when you're already low on recruits, etc?

Maybe I'm just excessively naive because I'm a total outsider to the military, but I'm having trouble seeing through this part of your argument.

Punjabi JAG,
It's really interesting to hear your perspective. I think you're right that change from within, through attrition, is plausible. But there's no reason that can't go hand in hand with outside pressure, e.g. from law schools. These law schools are not preventing the military from recruiting "progressives," or from recruiting law students. (If anything disuades progressives, it's the military's own policy.) The law school's stance is largely symbolic, and probably doesn't have much effect on recruitment.

Why should we support institutions who violate the law?

At least 2 federal courts have said the law schools are NOT violating the law. Now it's up to the SC. Until the validity and meaning of the law are resolved by the courts, your implication here is wrong.

oftentimes the reason people are kicked out isn’t for being homosexual per se... but for later admitting that they lied on their application about being gay. Lying is never tolerated.

Of course, if they told the truth, they'd never have been accepted in the first place. DADT requires gays to lie, and then the honor code punishes them for lying (and allows the military to say "we didn't kick you out for being gay, per se."). Quite a catch-22.

I don’t see how the current Don’t Ask law, if repealed...would substantively change anything for LGB people who serve. They will still keep their heads down... Having an openly gay man in their midst’s WOULD...destroy any sense of camaraderie within the unit.

The military is the quintessential top-down organization, isn't it? If the message comes from on high that gays are your brothers-in-arms, then the grunts are MUCH more likely to treat them that way. How long can you cater to the lowest common-denominator soldier? If DADT is repealed, and grunts still display their homophobia, have Lou Gosset Jr. scream in their face, put them on latrine duty, or whatever. The military has many effective ways of enforcing rules. Of course there'll inevitably be growing pains, just as with racial integration. But the military is on the wrong side of history here, and is just delaying the inevitable.

Arj, You better not be my brother with the same name!

Mom says hi. ;-)

But the military is on the wrong side of history here, and is just delaying the inevitable.

Agreed and I think you have an excellent point re Louis Gossett, many troops would respond positively to integrating LGB if an order from up top came down. Many would not though and I fear at a time of war it MAY not be a good time to fiddle with the military's chemistry. But I do see your point and now is as good a time as any. Thanks for your thoughts.

PunjabiJAG:

Re your comment:

Interesting tidbit- oftentimes the reason people are kicked out isn’t for being homosexual per se, some in the military find that reprehensible, but for later admitting that they lied on their application about being gay. Lying is never tolerated. Just a factoid to chew on.

The military is no longer allowed to ask about a recruit/applicant's sexual orientation. That contradicts the first part of "Don't Ask" in DADT. There is anecdotal evidence that some branches and recruiting locations still use outdated application forms that include this question (E.g., Variations on "Are you gay?" or "Have you ever had a relationship with a member of your same sex?"), but those locations are in violation of Defense Department policy in implementing DADT. See, e.g., DOD Directive No. 1304.26, at "Applicant Briefing Item on Separation Policy" (quoted below)

Although we have not and will not ask you about your sexual Orientation, you should be aware that homosexual conduct is grounds for discharge from the Armed Forces.

MF,
Hypothetically, couldn't a soldier still be caught for lying even if there is no explicit sexual orientation question on the application? For example, the application could ask, "list ALL clubs and organizations of which you have been a member," and the recruit neglects to mention the LBG students association. (I heard an omission like this caused a gay teacher to be fired by his school district.)

Supreme Court has come down against the law schools 8-0.