McGeorge School of Law

'Don't ask, don't tell' policy open to First Amendment challenge

January 26, 2006

Author: Lawrence C. Levine
Published: Thursday, January 26, 2006

Like a bad coin that is finally removed from circulation, we hope to be on the verge of saying "good riddance" to the mean-spirited and discriminatory Solomon Amendment, a truly dismal piece of congressional legislation.

The amendment withholds federal funding from institutions of higher learning that seek to follow their own anti-discrimination policies. It forces them to provide access to a discriminatory employer (the U.S. military), lest they lose substantial government funding.

Unlike its biblical namesake, however, the Solomon Amendment has nothing to do with wisdom or fairness and everything to do with politics. Sponsored by the late U.S. Rep. Gerald Solomon, R-N.Y., the bill was passed as part of a backlash against the increasing reluctance of universities to countenance the military's discrimination against their gay and lesbian students. Indeed, for some, the legislation presented an irresistible triple play: an opportunity to pillory two favorite targets -- gays and "ivory tower" academicians -- under the guise of supporting the American military.

This spring, the U.S. Supreme Court is expected to decide whether Congress has overplayed its hand by forcing schools to violate their own nondiscrimination policies. The court will review a thoughtful decision by the U.S. Court of Appeals in Philadelphia, which determined that forcing educational institutions to send a message inconsistent with the one they seek to deliver violates the schools' First Amendment rights.

The Third Circuit's 2-1 decision in FAIR vs. Rumsfeld favored the position of a coalition of law professors and law students, the Forum for Academic and Institutional Rights (FAIR), that forcing law schools to deviate from their clear and desired message -- that employment discrimination based on sexual orientation is wholly unacceptable -- significantly burdens their free speech and associational rights. The court determined that the law schools were "expressive associations" who could not be forced to send a message inconsistent with the one they seek to send.

To get to this result, the Third Circuit ironically relied heavily on an earlier decision that supported anti-gay discrimination. In Boy Scouts of America vs. Dale, the U.S. Supreme Court upheld the Boys Scouts' decision to discharge an openly gay scoutmaster because the Boy Scouts of America asserted that if it were forced to adhere to a New Jersey law banning sexual orientation discrimination, it would be forced to send a message inconsistent with its disapproval of homosexuality. The Third Circuit found that the law schools, like the Boy Scouts, were engaged in expressing "a system of values," that would be undercut by the contrary message the government was forcing them to include. As the Third Circuit said, "law schools are entitled to as much deference as the Boy Scouts."

What should we make of this continuing legal battle? Certainly, a decision striking down the divisive, spiteful Solomon Amendment would be welcome. Yet it would play a rather minor role in the battle for greater equality for gays and lesbians in America. The pernicious military policy that forces our gay and lesbian troops to serve this country in fear and dissuades many other talented individuals from serving our country would continue unabated. To win, of course, will not be an easy task. As the dissenting judge pointed out in FAIR: "In the entire history of the United States, no court heretofore has ever declared unconstitutional on First Amendment grounds any congressional statute specifically designed to support the military." Thus, an affirmance of the Third Circuit's decision would be a notable move away from near total deference to the military. Based on the nature of last December's oral argument, it's unlikely that the Supreme Court is ready to make that move.

Whatever the outcome, the Third Circuit's reasoning provides an additional basis for taking on the government's "don't ask, don't tell" policy. By depriving military personnel of expressive freedoms, this highly flawed policy is open to First Amendment attack. The FAIR case may provide a glimpse into how the Supreme Court will deal with such a challenge. Whatever the outcome, this is just one more battle in a long war for equal rights for lesbians and gays.