Solomon Amendment

Wed Dec 7 18:56:22 PST 2005

At 7:32 PM -0600 12/6/05, Paul Horwitz wrote:
>Congress in general and the federal government do not discriminate 
>on this basis when hiring and retaining staffers; the military does, 
>, at least to the extent that one falls afoul of DADT

That can't be right. It's the federal government that is engaged in 
discrimination, both de facto and de jure, when federal law prohibits 
gays from serving in the military. The military discriminates much 
like the bus driver who told Rosa Parks to move to the back of the 
bus, and the police officer who arrested her when she refused, but 
discrimination codified in the Montgomery City Code or the U.S. Code 
is by and under the authority of the government that legislates a 
segregationist policy. The notion that the military discriminates, 
but the federal government does not, stems from a view of the 
government as an agglomeration of fully-separate subsidiaries, 
instead of the conglomeration of fully-integrated, wholly-owned 
subsidiaries that it is.

The law schools' protest against the segregation of gays in federal 
jobs is akin to boycotting the seats in the front of the bus. If law 
schools don't see that, it's because they view a military career as 
the back of the bus (which strips their protest of any moral 
authority at all). The law schools credit the federal government with 
letting gays sit up front; but to a gay high school graduate who 
wants a military career and has to settle for a job running a copier 
in a closet as a GS-5 at DOJ, it's the back of the bus.

You're still right, though, that it's not a legal argument. If the 
schools have a First Amendment right that trumps the spending clause, 
it protects empty gestures -- if only empty gestures. If it wasn't an 
empty gesture, state schools would be in court defending against the 
First Amendment claims of students who want access to military 
recruiters, alleging a real burden on a real association. If it 
wasn't an empty gesture, the private schools that all went to a 
meeting and voted to exclude military recruiters from competitive 
access to the market for new lawyers (in their original sealed 
containers), and to restrain competition among law students in the 
legal job market, would also be in court -- under indictment for a 
conspiracy in restraint of trade. If it wasn't an empty gesture, the 
Solomon Act would rest on the 14th Amendment and the Commerce Clause, 
instead of the Spending Clause.

This litigation is just gaseous. The Government abandoned a 
meritorious standing argument on appeal, apparently because they were 
over-confident that the Court of Appeals would affirm. The Court of 
Appeals dispensed with the critical unconstitutional conditions issue 
in a single paragraph before devoting 40 pages to protecting the 
symbolic speech of anonymous institutions who refuse to be publicly 
identified with the message they claim is symbolized by a policy they 
refuse to publicly acknowledge, which was adopted by whatever 
fraction of the faculty cared enough to show up for the vote, and 
which didn't become symbolic speech instead of conduct until pro bono 
lawyers filed a symbolic lawsuit in the name of a symbolic plaintiff.

The best outcome here is a DIG on a sua sponte determination that 
FAIR didn't establish standing and there's no case or controversy. 
The worst outcome is an expansive elaboration of Spending Clause 
authority on really bad facts -- military recruitment during wartime 
-- and the evaporation of the unconstitutional conditions doctrine. 
The First Amendment issue, however it is resolved, will have no 
discernible real consequence for anyone -- unless there's a law 
student someplace interested in defending gay soldiers in 
court-martial proceedings, or advising the Secretary of Defense on 
the treatment of prisoners under international law, but who ends up 
at the IRS  -- in the collections department of USA, Inc., which 
budgets a lot of money on a security office that won't hire gays and 
a litigation department that defends segregation -- wishing he had a 
seat up front.

John Noble

At 7:32 PM -0600 12/6/05, Paul Horwitz wrote:
>I've seen this argument both here and on Eugene's blog, where it's 
>discussed at greater length.  It may have some merit as a moral 
>proposition -- as an argument that suggests that the law schools 
>lack moral courage and are betraying their elitist unwillingness to 
>give up student access to government jobs they value more highly. 
>But I'm still unconvinced that the argument has much merit as some 
>kind of legal argument applied to the facts of this situation.
>
>The question is not one of barring recruiters to make a general 
>moral statement, in which case one might want to bar recruitment by 
>Congress as well (on a sort of Al Pacino-ish "the whole damn system 
>is out of order!" basis).  Rather, it's one of barring access to 
>employers who actively discriminate on the basis of defined 
>categories including sexual orientation.  Congress in general and 
>the federal government do not discriminate on this basis when hiring 
>and retaining staffers; the military does, at least to the extent 
>that one falls afoul of DADT (which, given the way it's enforced, 
>can happen quite easily).  People can join the military and argue 
>for or against a change in DADT, but can't be openly gay; they can 
>join Congress and the federal government and argue for or against a 
>change in DADT, whether or not they're gay.  Similarly, if Congress 
>accepted job applicants of all races but the military was still 
>segregated, although elements within the military (and Congress) 
>were debating the policy, it would not seem crazy to me to keep the 
>military off campus but allow Congress to recruit -- at least if the 
>point is not to protest an underlying policy but to ensure that any 
>employer who comes on your campus is equally interested in and 
>willing to hire all of your students without respect to certain 
>defined criteria.
>
>So it seems to me that, whether or not the law schools display a 
>lack of moral courage (and one can certainly make the case that they 
>do), the differing impact of the non-discrimination policy as 
>between Congress and the military is not irrational or indefensible.
>
>Paul Horwitz
>Southwestern University School of Law
>Los Angeles, CA
>
>>From: "J. Noble" <jfnbl at earthlink.com>
>>To: "Marty Lederman" <marty.lederman at comcast.net>, 
>><DavidEBernstein at aol.com>,        <SLevinson at law.utexas.edu>, 
>><conlawprof at lists.ucla.edu>
>>Subject: Re: Solomon Amendment
>>Date: Tue, 6 Dec 2005 19:48:19 -0500
>>
>>At 4:08 PM -0500 12/6/05, Marty Lederman wrote:
>>
>>>Yes, Congress, not the military, is principally to blame.  So?
>>
>>So isn't it the United States of America, by act of Congress, that 
>>is engaged in the discrimination -- not only principally to blame, 
>>but wholly to blame for the harm caused? If a law firm hired black 
>>criminal lawyers to represent black defendants in front of black 
>>juries, but only hired white lawyers to work in its securities 
>>practice because Wall Street isn't comfortable with black lawyers, 
>>would the policy allow the firm to recruit criminal lawyers but not 
>>securities lawyers? The discrimination here is by the United States 
>>-- we'll hire gay lawyers, but we won't let them wear their 
>>country's uniform. The law schools' response -- we'll help you hire 
>>gay lawyers as long as they can't wear uniforms -- would only be 
>>irrational if it wasn't also complicit.
>>
>>Barring military recruiters from access to students -- even gay 
>>students who might want to join the military, live with the policy, 
>>and defend gay soldiers in court martial proceedings -- while 
>>welcoming the Justice Department's recruitment of lawyers to 
>>protect and defend the United States' continued discrimination, 
>>reveals the policy as an elitist pose. Law students are told from 
>>day-one that even the worst criminals are entitled to the best 
>>defense. Maybe there should be a caveat -- while there's prestige 
>>in representing the Mafia Don who ordered the hit, we don't train 
>>lawyers here to represent thugs who actually kill people.
>>
>>John Noble
>>
>>At 4:08 PM -0500 12/6/05, Marty Lederman wrote:
>>>With all respect, this is nonresponsive.  If there was any 
>>>unconstitutional conduct here, it's the action of Congress, not 
>>>the military, in enacting the SA.  And the conduct that causes the 
>>>military not to be able to offer the nondiscrimination pledge is 
>>>Congress's handiwork, too.  The fact that the military is 
>>>statutorily required to discriminate against gay and lesbian 
>>>students doesn't change the fact that it does, in fact, 
>>>discriminate against gay and lesbian students, and thereby cause 
>>>the harms that the schools are wishing to avoid (and not to 
>>>facilitate).  Yes, Congress, not the military, is principally to 
>>>blame.  So?
>>
>>>----- Original Message -----
>>>From: <mailto:DavidEBernstein at aol.com>DavidEBernstein at aol.com
>>>To: <mailto:SLevinson at law.utexas.edu>SLevinson at law.utexas.edu ; 
>>><mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu
>>>Sent: Tuesday, December 06, 2005 3:58 PM
>>>Subject: Re: Solomon Amendment
>>>
>>>How is the military supposed to give this nondiscrimination 
>>>"pledge" when it is obligated to obey civilian authorities who 
>>>have ordered it to obey "Don't Ask, Don't Tell"?
>>>
>>>In a message dated 12/6/2005 3:46:50 PM Eastern Standard Time, 
>>><mailto:SLevinson at law.utexas.edu>SLevinson at law.utexas.edu writes:
>>>
>>>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.
>>>
>>>
>>>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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>
>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
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>>
>>Please note that messages sent to this large list cannot be viewed 
>>as private.  Anyone can subscribe to the list and read messages 
>>that are posted; people can read the Web archives; and list members 
>>can (rightly or wrongly) forward the messages to others.