Dec 09, 2005  |  By: LOU CHIBBARO JR.  | COMMENTS     

The U.S. Supreme Court heard arguments on Dec. 6 about the constitutionality of a law allowing the federal government to withhold millions in grants from universities that bar military recruiters from their campuses because of the “Don’t Ask, Don’t Tell” policy.

John Roberts, newly installed as chief justice, offered skepticism toward both sides in the case of FAIR vs. Rumsfeld, and questioned whether the law, known as the Solomon Amendment, violates First Amendment rights of universities and law schools.

Joshua Rosenkranz, the attorney representing the Forum for Academic and Institutional Rights, or FAIR, which represents many of the nation’s most prominent law schools, said the Solomon Amendment unfairly penalizes law schools for barring military recruiters as an expression of their opposition to discrimination against gays.

Rosenkranz said the law insists that universities follow the government’s line of thinking or face losing funds as a consequence of their moral beliefs.

“It doesn’t insist on anything,” Roberts told Rosenkranz. “It says if you want our money, you have to accept us” by allowing military recruiters on campus.

Roberts and other justices said law schools could continue to express their opposition to the military’s policy on gays by issuing a statement or hanging posters outside recruitment tables outlining their views on the issue.

“This is not about homosexuals, but about whether universities can set their own recruitment policies for employers,” said Justice Stephen Breyer, a Clinton appointee who has ruled favorably on gay issues.

Limited impact on ‘Don’t Ask’ policy?

The case is considered important by some gay activists who believe overturning the Solomon Amendment could be viewed as a rebuke of the military’s “Don’t Ask, Don’t Tell” policy on gays at a time when polls show a growing number of Americans no longer support it.

The policy allows gays to serve in the military as long as they don’t disclose their sexual orientation to commanders or fellow service members. It calls for discharging gay service members who violate the policy.

Legal experts familiar with FAIR vs. Rumsfeld said the case addresses free speech rights and other legal issues but would have no legal impact on the “Don’t Ask, Don’t Tell” policy.

“This case is being billed by some, at least, as the big gay rights case of this term,” said Kenneth Choe, senior staff attorney for the American Civil Liberty Union’s Lesbian & Gay Rights Project. “But in many ways, that really is a misnomer. This is at heart a free-speech case.

“The speech at issue happens to be pro-gay speech of great concern to the LGBT community,” Choe said. “But it could have just as easily been anti-gay speech or speech about something altogether different.”

The Servicemembers Legal Defense Network, which assists members of the military affected by the “Don’t Ask, Don’t Tell” policy, filed a friend-of-the-court brief in support of FAIR.

Sharra Greer, SLDN’s legal director, said the group shares Choe’s view that FAIR vs. Rumsfeld is unlikely to have a direct legal impact on gays in the military. But Greer said SLDN is hopeful that the court might consider a long-shot legal doctrine in the FAIR case that could weaken the legal underpinning of “Don’t Ask Don’t Tell.”

In its brief, SLDN argued that the so-called “military deference” doctrine, which says courts should give greater weight to the military because it is essential to national security, should not apply to the Solomon Amendment. Greer said SLDN argues in its brief that, while military recruitment is important and necessary, barring military recruiters on college campuses on First Amendment grounds does not give rise to the “military deference” doctrine.

New York University studentstrong> Lori Rifkin, trong>Bess Kennedy, trong>Luis Ramirez and trong>Bert Leatherman traveled to D.C. to hear arguments in the case FAIR vs. Rumsfeld. (Photo by Judy G. Rolfe)

Should the high court accept this argument in its decision on the Solomon Amendment, Greer said, it could open the way for a favorable decision in SLDN’s pending challenge of the “Don’t Ask, Don’t Tell” policy. SLDN challenged the applicability of the military deference doctrine in its lawsuit opposing “Don’t Ask, Don’t Tell.”

“The court may not even address the deference issue in the FAIR case,” Greer said. “Our primary point is it cannot be in our constitutional framework to let the military do whatever it wants,” Greer said.

In what some legal observers view as an ironic twist, attorneys representing FAIR cite two Supreme Court rulings against gay rights as grounds for supporting the universities’ quest to ban military recruiters ...