This case is an interesting one. The Solomon Amendment requires that colleges and universities allow military recruiters on campus in order to receive federal funding. The problem, though, is that many schools — including NYU Law — have anti-discrimination measures which bar discriminatory employers from recruiting on campus. So, for example, if a particular law firm had a policy of only hiring whites, they wouldn’t be allowed to come and recruit.
The JAG Corps, which recruit law students, operate under the same discriminatory “don’t ask, don’t tell” policy as the rest of the U.S. armed forces. This policy clearly violates NYU’s anti-discrimination standards, the same way a law firm that had a “don’t ask, don’t tell” policy for non-Christians would be in violation.The problem is that the argument that "Don't Ask, Don't Tell" violates anti-discrimmination laws is, in my opinion, stretching it a bit. There are good reasons why the military gets hung up on sex, mostly because in a strictly hierachical organization the potential for abuse of power to get sex is very high and this applies to both homosexual and heterosexual relationships. Assuming it is enforced sensibly "Don't Ask, Don't Tell" makes a lot of sense because all it boils down to is that the military stays out of the bedroom and reduces the chance that homosexuals face peer group pressure/bullying. Now you might say that the military would be better accepting gays openly and coming down on the bullies but it seems to me that implementation of such a policy is likely to cause a lot of problems in an organization, which is currently fighting a war to protect homosexuals from the kind attentions of Islamists who don't understand the concept of tolerance.
"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."
[...] And Justice Breyer asked "why you don't have here what I'd say is normal in the First Amendment area, that the remedy for speech you don't like is not less speech, it is more speech."The lead sentence though is just plain silly:
The military wants access to law schools on the same basis as other potential employers seeking to recruit students, although openly gay law students, of course, need not apply.What is silly though is the question of how you define "openly gay". I admit I am not totally clear on how the military handles recruits but I personally don't see how a student in suit and tie (or female equivalent) can be identified as "gay" nor, unless said student has citations on his/her resumé to articles written which contain phrases like "As a gay student I find that..." or President of XXX University Gay and Lesbian Society, do I see how a recuiter would in practise determine an applicant's sexual orientation without a direct question. In other words the phrase "red herring" springs to mind. The fact that the Supremes have a firm grasp of the golden rule seems to irritate many such as Slate's Dahlia Lithwick although her concluding paragraphs are a joy to read:
Suddenly one can't help but notice that all the conservative justices have gotten quiet while the liberals are taking turns beating on counsel. That can't be a good sign. Says Breyer: "Speech is on their side. They are trying to recruit!"
Clement's rebuttal is a beautiful thing. He quickly explains that no student can confuse a military recruiter's speech with the law school's. Also that any protest can be re-characterized as free speech or free association, opening the door to allowing law schools, if they so choose, to disregard bedrock federal anti-discrimination laws. It's a clever approach—painting the Solomon Amendment as an anti-discrimination law, as opposed to an aggressive counter-punch at anti-discrimination diehards. A series of culture clashes underlies this case: The Army versus the Ivies; brawn versus brain; raw politics versus political correctness. But none of that really matters. You want the truth? You can't handle the truth. The law schools have no case.