Not even the combined power of three-dozen law schools can force the government to give up discrimination against homosexuals. Last week, the Supreme Court upheld a controversial law designed to prevent universities from barring military recruiters from their campuses in protest of the military’s discriminatory policies toward homosexuals. Despite the dubious strength of the law schools’ legal argument, the ruling points to the strong moral case against the government’s position. Law schools—and the rest of us—shouldn’t give up the fight for homosexual equality.
The fight began after several law schools refused to allow recruiters on campus in protest of the “Don’t Ask, Don’t Tell” policy, which bars openly gay citizens from serving in the military. In response, Congress passed the Solomon Amendment, forbidding universities that bar recruiters from receiving any federal funding—often a huge chunk of any university’s budget. Though the court’s clear-cut, 8-0 ruling shows this move isn’t illegal, it is by no means a good policy, and our government was never meant to use blackmail.
The Solomon Amendment’s shameful purpose notwithstanding, the real problem here is “Don’t Ask, Don’t Tell,” a policy that codifies discrimination and represses identity, all in the name of the same suspect logic behind the racial discrimination that existed in our military through World War II: that adding minorities would hurt unit cohesion. This discriminatory policy is hurting our military by preventing patriotic citizens from serving their country at a time when we desperately need men and women to serve in conflicts all over the globe. This policy has had a tangible negative effect: numerous Arabic translators have been discharged for being gay, despite the military facing a desperate shortage of translators.
Where does this ruling leave us? Law schools say they do not want to be associated with the military’s discriminatory policies, but also do not want to lose federal funding. As Justice Stephen Breyer said during the case’s oral arguments, “the remedy for speech you don’t like is not less speech, it is more speech.”
Law Schools worried about conveying the wrong message to their students by allowing recruiters on campus should make extra efforts to promote tolerance and a safe environment for LGBTQ students. Furthermore, they should focus their litigation efforts on fighting the ban on gays in the military and their pedagogical efforts to instill in their students the passion and skills to fight discrimination. Once we are able to give gay citizens their rights there will be no need for a blackmail bill.
