Now Repeal the Ban

Tuesday, March 7, 2006

THE SUPREME Court's unanimous decision yesterday upholding the Solomon Amendment is no surprise. It offers the correct answer to the legal question the case posed: Can the government deny federal money to universities that, in protest of the military's discrimination against homosexual service members, bar military recruiters from campus or grant them access on terms less welcoming than those given to other employers? As the court ruled, the universities don't have a right to that money. But the Pentagon's legal win should not obscure the indefensible nature of the policy that underlies the dispute. The gay ban still needs to be repealed.

The Solomon Amendment, named for the late representative Gerald B.H. Solomon (R-N.Y.), is bad policy, but it's not unconstitutional. The threat to withhold federal money leaves law schools with an uncomfortable choice between forsaking federal support and violating their own anti-discrimination policies. But the First Amendment does not prohibit the government from attaching conditions to its largess. Universities remain free to oppose U.S. policy as vocally as they like. They just can't frustrate military recruiting efforts while accepting federal dollars. As Chief Justice John G. Roberts Jr. put it for the court, "Compelling a law school that sends e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance to the flag . . . or forcing a Jehovah's Witness to display a particular motto on his license plate" -- forms of compelled speech the court has struck down. It "trivializes the freedom protected in [those cases] to suggest that it is."

It also trivializes the plight of gays in the military to focus on the ancillary consequences of the gay ban for American law schools. Universities are not the primary victim here. The real problem, which this litigation has tended to obscure, is that the military, even while fighting two wars, continues to root out Americans who wish to help by maintaining a policy that bars anyone who is openly gay. It robs itself of much-needed talent by way of their humiliation and exposure while forcing those in uniform to hide who they are.

This would be distasteful even if their presence in the military posed some real problem. But there's no evidence of that. A combination of bigotry and inertia keeps the gay ban in place. Now that the military has proved it can constitutionally exempt itself from university nondiscrimination rules, Congress should decide whether it really wants a military that requires such an exemption.

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