‘Don’t Ask, Don’t Tell’ Harms the Constitution, but So Does This Cure

On May 2, the Supreme Court accepted a case that could undermine decades of progressive legislation. The basic claim in the case is that the 1st Amendment allows organizations to opt out of laws that are contrary to their values. If the court agrees, organizations around the country may be able to exempt themselves from laws that ban discrimination or that aim to ensure equal access to services, merely by saying that they don’t believe in the principles underlying those laws. Worse than that, corporations might be able to opt out of laws that require them to convey information to others -- like safety warnings or workers’ rights.

Is this case the result of some vast right-wing conspiracy to roll back civil rights and the New Deal? Not at all. In fact, it was initiated by a coalition of law schools and professors who are challenging the Solomon Amendment, a federal law that requires universities to grant the same access to military recruiters that they would grant to other employers who come on campus to interview students.

The dispute arises out of the military’s irrational discrimination against lesbian, gay and bisexual troops, embodied in the “don’t ask, don’t tell” policy. As a result of that policy, many law schools decided to exclude the military from interviewing on campus, in keeping with their own policy of refusing to host recruiters who discriminate against their students. In response, Congress enacted the Solomon Amendment to require equal and unimpeded access for military recruiters, and it threatened to deprive any university of all federal funds if it (or any of its colleges or graduate schools) refused to comply. Law schools had no choice but to give in to this coercion, and some then brought suit to challenge Solomon’s constitutionality.

Their argument relies upon the 1st Amendment in two ways. First, they say that they have a message to communicate: “Discrimination against gay men and lesbians is wrong and will not be tolerated.” By forcing them to allow recruiters on campus who discriminate against gay students, the professors and law schools argue, Solomon impedes their ability to exemplify this inclusive message. Second, they argue that the military has its own message that it conveys when it recruits: “Discrimination against gay men and lesbians is acceptable and necessary for the military mission.” Law schools argue that they cannot be forced to facilitate the dissemination of that message.

The commitment of these professors to stand up against discrimination is admirable, and their arguments have a certain intuitive appeal. But the implications for our 1st Amendment jurisprudence are appalling. What the law schools are arguing for is nothing less than a 1st Amendment right to opt out of any law that has symbolic implications with which they disagree. Consider the consequences if the Supreme Court were to accept that argument. Universities could then claim a 1st Amendment exemption from, say, Title IX of the 1972 Education Amendments, the federal law that has transformed women’s ability to participate in sports, by adopting a policy of encouraging women to pursue more “traditional” activities.

If the court agrees with the second part of the argument -- that law schools are being forced to “facilitate” the Pentagon’s speech by setting up interviews and including recruiting brochures in student information packages -- then it would seem to follow that any organization, including a corporation, could resist any law that requires it to communicate information to others. That could include laws relating to workplace safety, health and labor relations. Indeed, the professors rely upon misguided decisions that have expanded corporations’ ability to resist regulation by invoking the 1st Amendment.

Make no mistake: The Solomon Amendment and the manner in which the Pentagon has enforced it are outrageous. In most cases, law schools have asked only that military recruiters agree to interview in separate locations, out of respect for their gay and lesbian students. The Pentagon has refused even that reasonable request. Such intolerance is offensive, and I will always be grateful for the support that my own professors offered on that score when I was a gay law student.

But offensive is not the same as unconstitutional. Congress has required that the military be given equal access to commercial job fairs. By itself, that requirement no more violates the 1st Amendment than does a law that requires chauvinistic institutions to treat women equally. Both are laws with symbolic significance. Neither interferes with the right to speak. The schools may disagree with the government’s policy, but disagreement alone does not give dissenters a right to an exemption from government policies.

Law professors must be guardians of principled legal reasoning. We must not take a sword to the Constitution, even when the cause is just. My colleagues are right to be outraged at the Solomon Amendment. But the best 1st Amendment response to Solomon is to express that outrage, support our students vocally and work hard to eradicate “don’t ask, don’t tell” -- a policy that does far more harm to the Constitution than Solomon ever will.