Monday, March 06, 2006

Supreme Court Upholds Solomon Amendment 8-0

With Justice Alito recusing himself, the Supreme Court today upheld the Solomon Amendment 8-0. There wasn't even a concurring opinion--all 8 voting justices agreed with the ruling in its entirety.

I've previously written about this case here, here, and here; here's a FoxNews story about the case. I just looked briefly and didn't see a similar story on at all, but then again I only looked in the Law section of their web page so they may have filed a story elsewhere.

Put simply, a law (the Solomon Amendment) says that schools that accept federal money (student loans, research money, grants, etc) are required to allow military recruiters on their campuses. Several law schools at some prestigious universities didn't want to allow military recruiters because--or at least this is the reason they're giving--the military doesn't allow homosexuals to serve openly. They filed suit against the Secretary of Defense. I give a little more detail in the 2nd link, above.

A few points, most of which I've made before:
1. They're targeting the wrong people. Banning homosexuals isn't a Defense Department policy, it's a Congressional mandate. They should ban members of Congress, not members of the military.
2. "Don't ask, don't tell" was promulgated by the previous President, not the current one.
3. The schools argued that their 1st Amendment rights to free association were being violated by having to allow recruiters on campus. This belief was shot down thoroughly; they don't have to allow recruiters, but they don't have to accept federal dollars, either.
4. The feds argued that Congress can and should be allowed to attach strings to money, and the Court upheld that view. However, a stronger case can be made by going directly to the Constitution. Article 1, Section 12 explicitly gives Congress the authority to "raise and support armies", and Section 13 gives Congress the authority to "provide and maintain a navy". Clearly, recruiting falls within the realm of raising, supporting, providing, and maintaining military forces.

So the law schools who brought this case have now lost 8-0. Think about that for a moment. Some of our most prestigious law schools, from some of our most prestigious (Ivy League) universities, had arguments that were so weak that they could not sway a single Supreme Court justice to side with them. I'm just wondering here, prestigious or not, how good are these schools? How much money are their students paying for tuition to attend a school that can't get one Supreme Court justice to agree with an argument?

It's pretty pathetic, I think.

The Associated Press, via Yahoo News, has a story that probably won't be linkable for long. This story has some interesting tidbits:
1. "Justices ruled even more broadly, saying that Congress could directly demand military access on campus without linking the requirement to federal money." Gotta love that. It ties in nicely with my Article 1, Section 12 comment above.
2. "Joshua Rosenkranz, the attorney for the challengers of the law, said that the case called attention to the military policy. 'A silver lining to the Supreme Court's opinion is the court made it clear,' he said, 'law schools are free to organize protests.'" Well, duh. Of course they are. That is a 1st Amendment freedom. And what military policy did this case call attention to, "don't ask, don't tell"? That's been around for a dozen or so years; anyone who pays attention knows about that policy.

Yes, I'm doing a Happy Dance over the outcome of this case. Lefties will most certainly want to call me a homophobe because of it--lefties are good at name-calling. I'm certainly not a homophobe, and I'm not even sure if I agree with the prohibition against gays' serving--I go back and forth on that issue. I certainly understand both sides of that debate and believe that eventually gays, like blacks and women before them, will eventually serve openly in integrated units. My happy dance is from watching a bunch of holier-than-thou, ivory tower liberals make fools of themselves on a national stage and get slapped down in the process.

Update, 3/7/06 6:39 am: Here's a take from the Volokh Conspiracy, perhaps the biggest lawblog around. I love this comment, quoted by Volokh from the Powerline blog and attributed to the dean of the George Mason Law School:

This is really a stinging rebuke, not only to FAIR but to an entire industry that has become complacent and self-indulgent. Many law professors really do believe, with the late Justice Brennan, that their own strongly-held policy preferences are all encoded somehow in the Constitution. This is a timely reminder that it just isn’t so.


Update #2, 3/7/06 1:28 pm: CNN has finally published a rather slanted story on the topic.

Update #3, 3/11/06 7:44 am: Howard Bashman at claims that we shouldn't be so hard on the litigants.

Notwithstanding the 8–0 trouncing that FAIR's arguments received at the hands of the Supreme Court, it strikes me as a bit unfair to argue that the outcome calls into question the professional qualifications of those liberal law professors who devised and backed the Solomon Amendment litigation.

He then makes a few points, none of which is especially strong in my opinion--but they are perhaps stronger than FAIR's points in the case (which isn't saying much). Sorry, I can't resist the digs at those people. Anyway, Bashman's a law guy, so read his column if you're interested.


Anonymous said...

if it makes you feel better had this rousing story about a prisoner (death row) wanting long johns. At least covered this story.

Walter E. Wallis said...

Now I want the money back illegally paid to these schools. Every cent, with interest. Punitive if we can get it.

Darren said...

I'm pretty sure they complied with the law while the case was being tried.

ns said...

It really sickens me how a whole group of people (the left) can have such animosity towards our military - but when they need soldiers, they are the first ones to cry, "but it's their JOB!"

I've never met anyone that hates the military this much, or even agrees with what the law schools did. I wish I could actually talk to someone who would side with the law school so that I can try to understand why they have such animosity towards our military. But then again, if I did talk to a person like that (most likely a liberal), I would not be able to resist the urge to beat them to a pulp.

It's hard to decide when you are torn between trying to understand your enemy and beating them to a pulp.

Darren said...

ns, consistency is usually not a staple of the liberal diet.

Oh, and I don't believe in trying to understand stupid things. Differences of opinion are one thing, stupid ideas are another.

serenity said...


I am a liberal, but I don't hate the military. In fact I gave eight years of my life to serving in the Marine Corps (how many have you given by the way?). I don't think that it's really about hating the military. It's about gays not being able to serve openly in the military, which many people (including me) feel is wrong. Though let me just say that I'm not agreeing with the way they went about trying to bring this issue the light.

Let me also say that it seems that "lefties" are not the only ones who are good at name-calling. Is all of this hostility really necessary? It really doesn't help anything.

Also, the inability to control your temper which leads to resorting to violence when faced with someone with opposing viewpoints is not an admirable trait. I wouldn't brag about it if I were you.

Darren said...

serenity, the chickenhawk argument doesn't fly here. I don't have to have been a Democrat to criticize them, and I don't have to have served in the military to criticize them or to promote their use in the world. Neither does ns.

However, you're right with your comment about temper.