March 6, 2006

Law on Military Recruiters Upheld

In a slam-dunk rebuke to the nation’s law schools, the U.S. Supreme Court on Monday unanimously upheld the constitutionality of a federal law that bars the flow of federal funds to institutions that fail to give military recruiters access to their campuses.

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The eight justices — not including Samuel A. Alito Jr., who joined the court after the oral argument in this case took place in December — agreed that the so-called Solomon Amendment does not restrict educational institutions’ rights to freedom of speech or association, as a coalition of law schools had argued.

“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,” Chief Justice John G. Roberts Jr. wrote in his opinion for the court.

The Supreme Court’s ruling overturns a November 2004 decision by the U.S. Court of Appeals for the Third Circuit, and sends the case back to that court to reconsider.

— Doug Lederman

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Comments

No panic, no victory, no sodomy

As I have said in the past, this opinion does not actually address the military’s position regarding whether people that identify as homosexuals can serve in the military. As a practical matter, JAG recruiting does not place an emphasis on campus interviews, but rather on interviews at the request of the candidate that are usually conducted off-campus on a military base. So, nobody’s ability to recruit or be recruited changed as a result of this opinion.

It is worth noting that the spending clause power is not what the court relies on in making its decision, but rather the power of the military to regulate actual recruiting.

Otherwise, the court seems to differentiate between expressive conduct in the form of “membership” as opposed to “guests.” This might prove interesting a little further down the road.

For actual servicemens’ substantive rights to be gay or engage in homosexual conduct see US v. Marcum, 60 M.J. 198 (CAAF 2004).

Larry, at 12:35 pm EST on March 6, 2006

The question over whether homosexuals can serve in the military has been answered, actually — they can. The “don’t ask, don’t tell” policy was implemented by DOD during the Clinton administration. Furthermore, it was my understanding that while this lawsuit was originally centered around law schoos, the ruling by SCOTUS applies to ALL universities who receive federal funds, not just law schools.....as it should be.

Sceptimus Smith, at 4:20 pm EST on March 6, 2006

The court’s decision was a wise one. We live in a dangerous world with an unknown and unknowable future. Nations that want to survive will make sure that their armed forces can tap into prime sources for military members.

Marvinlee, at 6:05 pm EST on March 6, 2006

more than just don’t ask, don’t tell

Sceptimus, Obviously this issue applies to more than just law schools, though some schools may be differently-situated than the law schools in this case. Regardless of the “Don’t Ask, Don’t Tell” policy, the constitution, as applied in Lawrence (by the Supreme Court) and Marcum (by the CAAF) provide servicemen with additional rights to privacy. While Marcum is somewhat vague, I think most agree that merely disclosing that one is a homosexual is now protected by the constitution, though the courts will have to figure this out on a case-by-case basis which doesn’t provide recruiters (SJAs, or boards) with much guidance: The Marcum court stated, “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court [in Lawrence]? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? 539 U.S. at 578. Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” In essence, homosexual conduct is probably now prohibited in the military in the same way that straight sexual conduct is. So, 1) declaring one is gay is protected; but 2) dating subordinates is not. Merely having gay sex with someone that isn’t the military is protected, but having gay sex with a private is not.

Larry, at 6:05 pm EST on March 6, 2006

Marvinlee, Since the armed forces do not conduct actual interviews at law schools, any student (even if they go to a 2d-rate law school) can obtain a bona fide interview (unlike most law firms), the military doesn’t gain or lose anything by this decision. Nor do any students. The enemies of freedom should not fear this decision, as it changes nothing.

Larry, at 10:55 pm EST on March 6, 2006

The court case was about whether or not the government could withhold funds from institutions whose law schools discriminated against military recruiters. The Supremes ruled unanimously that the funds could be withheld. The only “losers” are universities who wanted to have their cake and eat it too. If their moral stance is truly important to them, they’ll refuse the money. I’m not holding my breath.

Bob, at 4:21 am EST on March 7, 2006

Bob, the decision was not based on the spending clause

Bob, The opinion arguably goes further then this, and suggests that military recruiting can be regulated, by Congress, outside the context of the spending clause. In fact, so long as it doesn’t interfere with some other constitutional right, it would seem that Congress could demand that universities host the military without providing them with funds. (There may be other takings issues or, at some point, some other first amendment issues.) Because we are currently fighting a war on terror, it is ultra-important that before talking about something that the Supreme Court did, that a commentator read the actual opinion.

Larry, at 8:40 am EST on March 7, 2006

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Law on Military Recruiters Upheld

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Comments

No panic, no victory, no sodomy

more than just don’t ask, don’t tell

Bob, the decision was not based on the spending clause

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