Solomon Amendment

[DavidEBernstein at aol.com]

It's fairly simple, Mark. The law schools claim they cannot be 
"discriminating" against the military if they treat military recruiters the same as everyone 
else in requiring the military to sign a nondiscrimination pledge.  I am 
simply pointing out that there are several antidiscrimination laws, accepted as 
such, regarding which "equal treatment" constitutes discrimination.  It's become 
accepted in American life that under some circumstances, the legislature can 
make a policy treatment that "mere" equal treatment constitutes 
discrimination, as with laws requiring (potentially costly) "accommodation" of the 
religious, the handicapped, and military reservists.  If Congress has decided that 
"mere" equal treatment of the military constitutes discrimination because the 
military is simply following federal law in its recruiting policies, then that 
policy judgment constitutes, for legal purposes, a ban on discrimination against 
the military.  I sympathize with those who see bitter irony in Congress 
passing an "antidiscrimination law" that requires them to tolerate discrimination, 
but it's a little late for the law school faculties of the world to notice and 
protest that modern antidiscrimination law often interferes with individual 
rights.

In a message dated 12/6/2005 4:23:56 PM Eastern Standard Time, 
mgraber at gvpt.umd.edu writes:
I'm not sure I follow this.  The rule in Smith is that religious
believers are treated equally when states insist that abide by general
laws.  And those of us who question whether Smith was correctly decided
(I'm genuinely unsure) think the issue is whether religious believers
should be given an exemption.

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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