Friday
December 09, 2005
SGN.org
Volume 33
Issue 49
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Thursday, Nov 20, 2008
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U.S. Supreme Court: University's fight for right to bar military recruiters from their campus' |
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| U.S. Supreme Court: University's fight for right to bar military recruiters from their campus' | ||
| By Lisa Keen
- SGN Contributing Writer
It was an uncharacteristically positive remark coming from the justice with the most hostile tongue and worst voting record regarding Gay civil rights issues at the U.S. Supreme Court. U.S. Solicitor General Paul Clement had just started telling the U.S. Supreme Court that the military, when seeking to recruit on campus, "simply asks to receive what other employers receive." Justice Antonin Scalia interrupted. "When you say [military recruiters] ask to receive what other employers receive - these institutions would not allow other employers who have the same policy against hiring homosexuals to interview at their institutions, so you are receiving what other employers in same situation would receive." The remark came Tuesday at the start of oral arguments in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), a case challenging a series of federal statutes which deny federal funds to universities which ban military recruiters because of the military's policy of banning Gays. The laws, passed between 1999 and 2005, are referred to as the Solomon Laws because they were initially introduced by U.S. Rep. George Solomon (R-NY). FAIR, a coalition of law schools, including the University of San Francisco and Stanford law schools, filed the lawsuit, saying the laws violate the First Amendment rights of its members by conditioning the receipt of federal funds on their allowing military recruiters on campus even though the schools' policies bar all other employers who discriminate based on sexual orientation. The U.S. Court of Appeals for the Third Circuit agreed, and the U.S. appealed to the Supreme Court. C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, which represents Gays in the military and filed a brief in support of the universities, said he didn't read too much into Scalia's remark. While acknowledging that it is unheard of for Scalia to say anything supportive of Gays, he said Scalia was probably just batting down a weakness in the government's case in order to steer it to stronger one. That may be true, but Scalia's remark highlighted a weakness in the government's case -one that other justices pounced upon-and which prompted Scalia to jump back in. "You've gotten us galloping off in wrong direction," said Scalia. "The statute doesn't require the same access; it requires much more than that. It prohibits funds if an institution prohibits access to campus for military recruiters in a manner equal in quality and scope to any other employer." Scalia eventually steered Clement onto an argument that the constitution gives Congress the power to "raise and support Armies." And the court spent considerable time discussing that with Clement and with the attorney representing FAIR, Joshua Rosenkranz. To whatever extent the government may have "galloped off in the wrong direction" early on, the oral arguments made a sharp turn and galloped in the wrong direction for Gay civil rights later on. Rosenkranz said the schools are being forced to do more than just allow military recruiters on campus. The Solomon Laws, he said, forces schools to provide the same services to the military as it does to other employers -such as sending out e-mails alerting students to the employer's recruitment efforts, post notices on its bulletin boards, and help with arrangements for receptions. But Chief Justice John Roberts was particularly tough on Rosenkranz. His grilling came when Justice David Souter asked about the relevancy of the Supreme Court's unanimous 1995 decision (Hurley v. Irish-American Gays) that said organizers of an annual St. Patrick's Day parade in Boston could not be compelled to include a Gay contingent. In a bit of irony, several Gay legal organizations and the ACLU submitted a brief on behalf of the universities, arguing that the Hurley decision supports the schools' position. In the Hurley opinion, Souter wrote that the Gay contingent could be refused admission "just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members." "&. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others," wrote Souter. Rosenkranz agreed there was a similarity between the parade organizers and the universities. Chief Justice John Roberts, hearing his first Gay specific case, interjected that the Solomon law "doesn't insist you do anything." "It says, 'If you want our money, you have to let our recruiters on campus'." Then, in yet another bit of irony, Roberts, in essence reiterated an argument used by Gay groups when trying to convince the court that the inclusion of a Gay contingent did not impose upon the parade organizers' First Amendment rights. "Nobody thinks the law school is speaking through employers," said Roberts. Rosenkranz disagreed, saying that the universities are being forced to disseminate a message "they believe immoral -to abet discrimination." Justice Sandra Day O'Connor suggested -as did Souter in Hurley-that in certain situations, the "speaker" could simply post notice that it does not agree with certain messages. Rosenkranz said that was unacceptable because "the students will say, 'I don't believe you'." "They don't believe you," interjected Roberts, "because you're willing to take the money." Indeed, literally hundreds of millions of dollars in federal funding is at stake for universities who have and enforce policies of non-discrimination based on sexual orientation, should the Solomon Laws be upheld. But the stakes are higher than just funding to universities, says Osburn. "The universities are trying to create an atmosphere where all students welcomed and respected," said Osburn, "and the federal government is saying it will discriminate and there's nothing they can do." In an unusually blunt assessment of how the argument went, Harvard law professor Laurence Tribe, a longtime legal strategist for Gay civil rights, told the Harvard Crimson newspaper, "It's clear that Rumsfeld is going to win and that the Department of Defense will prevail." |
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