The U.S. Supreme Court will decide whether the federal government can force law schools to help military recruiters on campus or lose federal funding. The schools have argued that is a violation of their principles of nondiscrimination against gays and of their freedom of speech. Last November a lower federal court agreed.
The Court said on May 2 that it would hear the appeal of Rumsfeld v. Forum for Academic and Institutional Rights ( FAIR ) during its session that begins next October. A decision is likely in the spring of 2006.
The issue has been bubbling for a generation. FAIR argued that laws schools historically have had a policy of nondiscrimination and over the years have extended that to include sexual orientation. In 1990 the American Association of Law Schools unanimously voted to add sexual orientation as a protected category. Today all but a handful of schools do so.
Noting that the Pentagon's policy known as 'Don't Ask, Don't Tell' discriminates against gays and lesbians in employment, the law schools said they would bar military recruiters from campus.
The backlash began in 1994 when Rep. Gerald Solomon, R-NY, offered the first in a series of amendments and then a law to force the law schools to help military recruiters or lose access to all government funded programs, including student loans.
A coalition of law schools organized as FAIR and sued to block the law. A Third Circuit appeals court sitting in Philadelphia agreed with their arguments. Writing for the 2-1 majority, Judge Thomas L. Ambro drew heavily upon two Supreme Court decisions that at the time were seen as defeats for gay-rights advocates.
One case is Boy Scouts of America v. Dale, where the Court said that the Boy Scouts did not have to admit an openly gay scoutmaster because it would 'significantly burden the Boy Scouts' desire to not promote homosexual conduct as a legitimate form of behavior.''
Judge Ambro applied that same logic to this case, writing, 'The law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness' and should not be compelled to accept military recruiters.
The other case cited extensively was Hurley, in which a St. Patrick's Day Parade was allowed to exclude a gay Irish group from marching with a banner. The Court found that the parade organizers had a right to associate with whom they chose.
Ambro called the Solomon Amendment an unjustifiably blunt weapon to assist the recruitment effort; 'it could barely be tailored more broadly.' The Pentagon has other less intrusive and burdensome methods by which to recruit lawyers.
Furthermore, 'The Government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal.' It may plausibly be argued that it has generated such ill will that it 'actually impedes recruitment.'
The U.S. House of Representatives reacted by passing a 'Sense of Congress' resolution when it returned in February. It reaffirmed the Solomon Amendment and urged an appeal to the Supreme Court, though it had no binding legal power. The vote was 327 to 84, with strong Democratic support.
While not a party to the FAIR lawsuit, the Servicemembers Legal Defense Network filed a brief in support of that position during the Philadelphia appeal. They are likely to do so again now that the matter is before the Supreme Court.