marty.lederman at comcast.net
Tue Dec 6 13:02:14 PST 2005
That's right, Sandy, insofar as the Government's interpretation of the statute is concerned. The SG stated several dozen times in its briefs that the SA requires "equal access" for the Pentagon. If that were in fact the case, however, then (as you suggest) where's the beef? -- The military is receiving access to students on the same terms and conditions as all other employers. (Better, even -- see below.) Nevertheless, when pushed, the SG reveals its view that the SA requires not "equal access," but an exemption for the military from the terms and conditions of access that apply to everyone else -- "special" treatment, one might say.
Walter Dellinger, on behalf of a few dozen Harvard Law professors, filed a brief arguing that the SA does in fact only require equal access, and that therefore virtually all schools are in compliance, because they don't treat the military worse than other discriminating employers are treated. (In fact, military recuiters generally get perqs at these schools that would not be available to other employers who fail to abide by the schools' recruiting conditions.) (There's a similar brief filed by, I believe, Columbia Law School profs.)
One of the most interesting things about oral argument today was that the first few minutes were dominated by questions to the SG from O'Connor, Kennedy and Breyer about whether, in fact, the military isn't already receiving exactly what the SA requires -- namely, equal treatment. The questions prompted Paul Clement to in effect concede that the Government is seeking special, preferred treatment for the military.
I think there's at least a small chance that the "center" of the Court will avoid the constitutional questions by holding that the SA does not require an exemption for the military from generally applicable conditions that apply to all other employers.
If not -- i.e., if the Court holds that the SA requires exemptions, special treatment, for the military -- it's an interesting question whether that would change the constitutional calculus. Understood as such, the Solomon Amendment would not be directly analogous to title VI, title IX, the Rehab Act, etc.: Unlike w/r/t those anti-discrimination laws, there would be no issue of the Government wishing to avoid subsidization of discrimination. Therefore, the government would have to rest its defense on some other state interest -- an interest other than the impermissible "aim to suppress dangerous ideas." The interest the Government (and some Justices) were invoking today was the need of the military to have effective access to students. But that argument falls a little flat, in light of the fact that there's no evidence that the military was hampered in its recruiting during the many years before the SA was amended to require "equal" access.
----- Original Message -----
From: "Sanford Levinson" <SLevinson at law.utexas.edu>
To: <conlawprof at lists.ucla.edu>
Sent: Tuesday, December 06, 2005 3:42 PM
Subject: Solomon Amendment
>From the NYTimes posting on the Solomon Amendment argument:
WASHINGTON, Dec. 6 - The Supreme Court heard a lively argument today on
an issue that touches on free speech, gay rights and national defense in
the dangerous, post-9/11 world.
The question was whether the federal government can deny financial
support to an entire university if any school within it does not give
military recruiters the same access to students that it gives to other
potential employers on campus.
But, of course, the second sentence is completely misleading. The law
schools in question are willing to give "military recruiters [exactly]
the same access to students that it gives to other potential employers
on campus," which requires only a pledge that they not discriminate
against gays and lesbians. As a matter of fact, the military is
demanding an exemption from the terms of access that apply across the
board to other potential employers. At the very least, I'd be curious
to know how those who view anti-discrimination laws for gays and
lesbians as giving them "special rights" (an argument made with regard
to Romer, for example) can possibly distinguish the military's argument
in this case. I'm altogether open to the argument that equality
arguments are ultimately "empty," but, if that is the case, the military
is as estopped from making them as anyone else. So, ultimately, the
military's argument boils down not to "equal treatment," but, rather, we
pay the money, we can call the tune, period. Is this not accurate?
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