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.
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
students
Lori
Rifkin,
Bess
Kennedy,
Luis
Ramirez
and
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
on
their
campuses.
In
its
1995
decision
in
Hurley
vs.
Irish
American
Gay,
Lesbian
&
Bisexual
Group
of
Boston,
the
court
ruled
that
organizers
of
Boston’s
St.
Patrick’s
Day
parade
had
a
First
Amendment
right
to
bar
gay
group
from
marching
in
the
parade.
The
court
held
that
the
gay
group’s
participation
would
interfere
with
the
parade
organizers’
“expressive
message,”
which
was
a
form
of
protected
speech.
In
the
Boy
Scouts
of
America
vs.
Dale
case
handed
down
in
2000,
the
court
ruled
that
the
Boy
Scouts
had
a
First
Amendment
right
to
bar
gay
scouts
and
scout
leaders
from
its
ranks
based
on
...
