Law schools’ constitutional challenge to the Solomon Amendment, an issue near and dear to the hearts of my fellow 2Ls who took appellate moot court this semester, was argued before the Supreme Court yesterday. It did not go well for opponents of the amendment, according to the L.A. Times:
The Supreme Court justices signaled Tuesday that they would uphold the military’s right to recruit on college campuses and at law schools, despite its policy of excluding openly gay people from its ranks.The justices gave a thoroughly skeptical hearing to the position of some law faculties that they have a free-speech right to bar military recruiters, a claim that was upheld by a lower court. …
Joshua Rosenkrantz, a New York lawyer who represented the law schools, said these institutions resented “disseminating the military’s message.”
That claim ran into sharp objections from the court Tuesday.
“The law school is entirely free to convey its message [opposing the military’s policy] to everyone who comes,” Justice Sandra Day O’Connor said.
Roberts said he too did not understand how this was a case of “compelled speech,” since the law schools need not say anything. “Nobody thinks the law school believes everything that the employers are doing or saying,” he said. …
Even the court’s liberal justices said they disagreed with the argument that allowing military recruiters on campus violated the free-speech rights of law schools.
Justice Stephen G. Breyer said he too did not see how an equal access rule for military recruiters violated the 1st Amendment. “The remedy is not less speech, but more speech,” he added. Rather than excluding military recruiters, professors and students should use the opportunity to express their disagreement with the military’s policy, he said.
I don’t like the military’s ban on gays in the military — I don’t like it at all — but having been required to argue the government’s position in my brief and oral argument (hey! that’s compelled speech!), I found myself agreeing with it. I think Roberts is right: no one in their right mind believes that recruiters, military or otherwise, are “speaking for” the law school, which is a key difference between this case and some of the precedents that the law schools’ argument rests on.
It makes me smile that the government’s lawyer emphasized, “to the surprise of some justices,” that “law schools could even organize protests and jeer at military recruiters.” I emphasized that same point in my oral argument. :)
UPDATE: SCOTUSblog has more. (Hat tip: Orin Kerr at Volokh, who also provides the link to audio clip of the oral argument.)
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December 7th, 2005 at 7:20:49 am
The key issue still unresolved is whether or not discriminating against gays and lesbians is constitutional in the first place. The court has repeatedly refused to pass judgment on this issue.
Discriminating against gays/lesbians is a form of bigotry that is still acceptable in some circles. We would all be outraged by discrimination based on race. But some of us would not be outraged at all if the discrimination in question were based on sexual orientation.
December 7th, 2005 at 8:48:31 am
Look, once again, PC gets in the way of common sense. If you have ever been in a foxhole (as I have, 6 years in the Army) with people who you are trusting with your life, the last thing you want is sexual tension of any kind. I speak from experience. What happens if a gay man is in the foxhole with 10 others, and 3 get injured. Maybe rather than help the one who needs it most, he helps the one he has a crush on. Its a distraction that is deadly on the battlefield. There are reasons the military doesn’t allow gays in the military, and they are all in the interest of SAVING LIVES, not homophobia, and i can tell you, I for one greatly appreciated it. Group dymanics/cohesion is the other major reason. Having to deal with the sexual feelings of another soldier towards you is another distraction that could get in the way of the main objective. And in my experience, distractions can get you killed.
December 7th, 2005 at 9:09:55 am
The military definitely discriminates against gays. There’s no other acceptable way of putting it. The question is whether the discrimination is warranted in a military setting. I’m not absolutely certain that it isn’t. Sexual orientation is a fundamental driver of human behavior in most people, much more so than race I think. Also, as was alluded to by TJ, there’s a big, big distinction to be made between being in the military and other vocations. The army — at least those parts that are regularly in harm’s way — ain’t your typical workplace, and it’s at best foolish (and at worst dangerous) to try and apply the same rules and morals. I, for one, am not so quick to second guess the morality of people who do a dangerous job that most of their critics wouldn’t do.
Of course, if you don’t like the don’t-ask-don’t-tell policy, better to protest Congress who voted for it, not the military who just does what it’s told by its civilian leadership. That is, unless you’re just looking for an excuse to bash the military :-)
December 7th, 2005 at 9:12:44 am
TJ
Common sense? I’m pretty sure all European countries, including Britain, allow gays in the military.
I won’t go into other details of what you posted because it really is utter nonsense. I can only assume your post is basically a trolling expedition designed to get a rise out of the gay posters here.
LOL
December 7th, 2005 at 9:38:10 am
Starting at the top.
Brendan, the problem that I have with this is the government requires schools not to discriminate in order to receive a grant. But then requires them to allow a discriminatory employer onto campus to recruit in order to receive the same funding… As I see it there is a cognitive disconnect there. There may or may not be a legal basis there, but it is pretty stupid.
TJ that’s stupid. What’s to stop a straight guy from helping his best friend first and leaving the others until later — sexual or not there will always be people you get along with better and those you get along with less well. And clearly you’ve not read your Greek Philosophy in which gays are good for the military because soldiers fight harder to impress their boyfriends.
December 7th, 2005 at 9:39:51 am
TJ, that’s a very poor argument. Whether you like it or not, there are already plenty of gays in the military; you just don’t know who they are. They went through the same training, took the same oath, and fight the same battles.
Legally, the schools should allow the military access; the recruiter pool is essentially public, with any company allowed access to campus. Furthermore, the federal government throws money at universities, and it seems hypocritical for the schools to accept the cash but not the recruiters.
That said, the Clinton-era “Don’t ask, don’t tell” policy, unfortunately continued by this administration, is just bad policy. The military has discharged over 10,000 active members in the last ten years because of the policy. That’s 10,000 fewer troops who could be protecting our nation.
The Washington Post had a pretty good editorial yesterday. I’d suggest checking it out for a brief but reasonable view on this whole thing.
December 7th, 2005 at 9:55:21 am
Having done all the research for moot court, I definitely see the argument for both sides, and knowing this Court, I suspect the government will win. Of course, I would like to read the whole oral argument to see if the justices really indicated they were “leaning” one way, like the article said. The whole point in an argument is for them to ask the attorneys difficult questions, or to ask questions that they know justices who disagree with them will bring up in conference, so I feel like it might be hard to tell from the argument which way they’re leaning.
As far as gays in the military, I think one thing to keep in mind is that in the context of this case, the military is discriminating against gays who want to be in the JAG corps. I’ll defer to people with more military expertise about whether gay soldiers would be OK, but I can’t see how gay JAG attorneys, who don’t live in barracks together and who work in offices, would cause any detriment to the military at all.
December 7th, 2005 at 12:12:32 pm
Look, once again, PC gets in the way of common sense. If you have ever been in a foxhole (as I have, 6 years in the Army) with people who you are trusting with your life, the last thing you want is racial tension of any kind. I speak from experience. What happens if a black man is in the foxhole with 10 others, and 3 get injured. Maybe rather than help the one who needs it most, they help the white people first. Its a distraction that is deadly on the battlefield. There are reasons the military doesn’t allow blacks in the military, and they are all in the interest of SAVING LIVES, not racism, and i can tell you, I for one greatly appreciated it. Group dymanics/cohesion is the other major reason. Having to deal with the racist feelings of another soldier towards you is another distraction that could get in the way of the main objective. And in my experience, distractions can get you killed.
December 7th, 2005 at 12:18:36 pm
I hope you get the utter and complete idiocy of your argument TJ.
Simply put, being gay doesn’t mean you are a raging ball of hormones who wants to shag every thing with a penis in sight.
Your assumption that a soldier who happens to be gay can’t function beyond that of a sex crazed teenager is asinine.
Want to limit distractions of two soldiers in a squad from dating? Simple, don’t allow inter-squad dating. This is no different from restrictions placed on dating a superior/junior officer, etc etc.
If a gay man sexually harrases another soldier, fine, punish him for it. Same with a straight man. Behavior, not sexual orientation is going to cause breakdowns in unit cohesion. And your lame attempt at defending the blatantly discriminatory practices of the military with the weak “it will hurt unit cohesion” argument despite ANY evidence whatsoever to back that claim up is utterly and completely wrong. Period.
December 7th, 2005 at 12:47:47 pm
“Simply put, being gay doesn’t mean you are a raging ball of hormones who wants to shag every thing with a penis in sight.”
Likewise, being straight and reflexively turned off at the sight of two men kissing does not make you a member of the KKK, David. The parallel between sexual orientation and race is cavalier and a bit clumsy. It’s no doubt morally comforting to think that anyone who is turned off by homosexuality is equal to a racist, but that fundamentally misunderstands the nature of sexual orientation as a driver of human behavior. The differences between males and females and their sexual interrelationships are wholly different from differences based on race, which most of the time are mere stereotypes.
December 7th, 2005 at 12:52:32 pm
being straight and reflexively turned off at the sight of two men kissing does not make you a member of the KKK
No, but if you take your personal “reflexes” and apply them to the creation of public policy, that does make you a practicioner of discrmination.
David’s analogy didn’t assert that “anyone who is turned off by homosexuality is equal to a racist.” It asserted that discrimination on the basis of homosexuality is equivalent to discrimination on the basis of race. There’s a difference.
You’re entitled to be “turned off” by whatever, but that should have no bearing on the formation of public policy, and the question of whether or not, as somebody once said, “this nation will rise up and live out the true meaning of its creed: ‘we hold these truths to be self-evident: that all men are created equal.’”
December 7th, 2005 at 1:13:35 pm
TJ, do you support women in the military? ‘Cause they seem more likely to cause distractions based on the sheer numbers of women vs. homosexual men in the armed forces.
Just sayin’…
December 7th, 2005 at 1:14:16 pm
Brendan,
You’ll see that I stipulated in my very first post on this thread that the military is indeed discriminating against people on the basis of sexual orientation. The salient question is whether the gov’t — which can and does discriminate on the basis of race and sex when it has a compelling interest to do so that can survive strict judicial scrutiny — has a compelling interest to do so in this instance with respect to military service. I don’t know the answer to that, and I can see both sides of the argument. What I do know, however, is that David’s analogy left me with little doubt of what he thinks of people who disagree with him on this question.
December 7th, 2005 at 1:20:28 pm
Joe Mama, your response to David’s analogy was incredibly weak then. YOU are the one who made this about “being straight and reflexively turned off at the sight of two men kissing,” so don’t criticize ME for turning the discussion away from the “salient question [of] whether the gov’t…has a compelling interest to [discriminate] in this instance.”
David’s analogy said absolutely nothing about how he personally reacts to individual people with individual “reflexive” emotions re: homosexuality, outside the context of public-policy debates (I strongly suspect that, as a Catholic, David’s his position on that is different than you think); your decision to raise that issue in response, however, suggests that you think that reflexive feelings of being “turned off” may help create a “compelling interest”… or something. Otherwise, why did you bring it up? Why attack David for something he didn’t say, when doing so actually weakens your argument? Lame.
December 7th, 2005 at 1:24:16 pm
P.S. I believe a fair reading of David’s analogy, in the context of this discussion, would be: the government has no more of a “compelling interest” in discriminating against gays in the military that it does in discriminating against blacks in the military. The upshot being, if you are going to defend this particular instance of discrimination in the manner in which you are defending it, you need to either be prepared to accept that your argument can be just as easily applied to blacks, or else you need to explain why this is not so. But instead you responded with an irrelevancy and a straw-man argument. So actually David’s post was completely on topic, whereas your response came from out of left field.
December 7th, 2005 at 1:39:24 pm
Brendan,
Bear with me, because I’m going to have to get a little pedantic here.
“YOU are the one who made this about ‘being straight and reflexively turned off at the sight of two men kissing,’”
Yes, after David clearly wanted to make the debate analogous to one about race. As I tried to explain, I don’t think race and sex are interchangeable in this debate, which is precisely what David thinks . . . LITERALLY.
“so don’t criticize ME for turning the discussion away from the ’salient question [of] whether the gov’t…has a compelling interest to [discriminate] in this instance.’”
I wasn’t criticizing you, I was merely trying to get away from the point on which we agree (that the military discriminates on the basis of sexual orientation) to the point on which we don’t (should they be allowed to?).
“David’s analogy said absolutely nothing about how he personally reacts to individual people with individual ‘reflexive’ emotions re: homosexuality, outside the context of public-policy debates (I strongly suspect that, as a Catholic, David’s his position on that is different than you think)”
David’s analogy was that discrimination on the basis of sexual orientation is literally the same thing as racial discrimination. So while he maybe doesn’t think that people who discriminate on the basis of sexual orientation are racist, his analogy clearly indicates that he thinks people who do so are doing the same thing as discriminating on the basis of race. I leave it to you to explain whether that’s a distinction with any difference.
December 7th, 2005 at 1:43:32 pm
“[I]f you are going to defend this particular instance of discrimination in the manner in which you are defending it, you need to either be prepared to accept that your argument can be just as easily applied to blacks, or else you need to explain why this is not so. But instead you responded with an irrelevancy and a straw-man argument.”
As I explained, my reponses were neither irrelevant nor straw-men. I’d be happy to explain why I think race and sexual orientation are completely different when it comes to driving human behavior, but that’s a long post that I don’t have the time for now. I’ll try and get back to that sometime in the not-too-distant future . . .
December 7th, 2005 at 1:49:18 pm
Whatever, dude. The fact remains that you totally changed the subject by turning a debate over whether racial discrimination and sexual-orientation discrimination are equally compelling (or non-compelling) state interests, into a debate over what David thinks about individuals’ visceral reactions to homosexuality — which was a topic that no one had brought up until you did. Yes, that’s a straw-man argument. And yes, it is a distinction with a difference; OF COURSE it is. I think virtually everyone except you reading this thread will be able to see that. But I see I’m not going to make any headway with you, so I’ll move along. Considering how weak and easily rebutted your original argument was, I guess I shouldn’t have been surprised that your rebuttal to David was as pathetically lame as it was…
December 7th, 2005 at 1:51:59 pm
Personally, I like the take on the matter offered over at Slate. The military is being given equal access to students as every other organization with a similar policy. If Congress wants the military to be given preferrential treatment, then they should write the legislation that way, and we can have a debate about whether the military deserves special treatment as a recruiter. But, as the slogan goes, equal rights are not special rights.
December 7th, 2005 at 2:11:17 pm
Joe Mama,
First of all, your premise is flawed from the get go. As I said the military allready has rules in place regarding what is and ins’t appropriate conduct in the unit. THe idea that gay men are going to be sitting around making out in the barracks is asinine and frankly a pathetic attempt at making an argument against gays being allowed to openly serve in the military because it assumes a certain type o behavior would therefore no longer be prohibited. There is NO EVIDENCE WHATSOEVER to suggest this. NONE.
Your argument that race and sex being uncomparable is equally weak. The feeling against blacks and other minorities in this country, was so much more pronounced then is the current anti-gay attitudes. In addition it is entirely possible (and likely) for a person to serve as an openly gay man and not be making out with his boyfriend in the barracks, where as it was impossible for a black man to not be black around his fellow soldiers. Under your argument, because it might make them uncomfortable you are saying that racial discrimination was a completely acceptable policy.
If you are in the military and you are serving with a person who is gay, and that person does nothing that violates the regulations applicable to all military personel (i.e. carrying on a relationship with a squad member, behaving in an inappropriate way towards other soldiers), then you merely feeling uncomfortable is YOUR problem and YOU are more likely to cause problems then they are.
A soldiers effectiveness to his squad and whether or not his fellow soldiers can trust him or not should be based on his conduct as a soldier, not his private life. That and the idea that a person can’t put aside their personal comfort level when appropriate is more a sign of weakness on the part of that person.
And for someone who served in the military I am amazed that you think your fellow soldiers are so weak willed that they can’t handle some thing so trivial as whether a man likes to date other men or not. I would have thought our soldiers were made of sterner stuff.
Second, as Brendan alluded to, my opinion on the morality and my own personal reactions to homosexual behavior have absolutely nothing to do with what is and isn’t constitutionally acceptable. Personally I consider homosexual behavior to be immoral, but that doesn’t mean i think a person who is homosexual should therefore be prohibited from serving in the military.
December 7th, 2005 at 2:12:00 pm
Sorry, TJ was the one who served in the armed forces, not Joe Mama.
December 7th, 2005 at 2:55:28 pm
TJ, while you claim that your post doesn’t reek of heterosexism, the stench seems overwhelming from here. The implications of your statements are frightening because there is absolutely nothing to suggest that your justifications for discrimination only apply in the military world. I mean, what if you’re in a major US city and there’s a terrorist attack and the nurse in charge of triage-ing patients is gay? Does being gay mean that the nurse has no morals, that he would abandon all ethics for a pretty face? Would you have the same concerns if he was straight–that he would put some hot chick ahead of you for medical attention?
The military has always had some retarded policies that truly have NOTHING to do with saving lives and everything to do with public misconceptions and ignorance. For example, when my Dad was in college, the kid who won the national sharp-shooting contest wasn’t allowed to join the military because he had crossed eyes. Clearly, his eyes didn’t impair his aim and the kid could have made a stellar sniper or something, but nope. Crossed eyes.
Regardless of how strongly I feel about the stupidity of excluding gays from the military, I feel even more strongly about allowing the military to recruit on campuses. I don’t care if it’s a Quaker campus. If the school gets a dime from the government for anything, then the government should be able to recruit there.
Universities are supposed to be bastions of free speech. I find myself appalled that these schools would attempt to ban someone from their campus rather than using a hostile presence as a learning tool. It’s horrid.
December 7th, 2005 at 3:07:49 pm
FYI - the Solomon Amendment actually makes an exception for universities that have long-standing policies of pacificism (e.g., Quaker campuses).
December 7th, 2005 at 3:42:19 pm
Becky - I’m appalled when Universities ban *anyone* non-violent from campus for ’status’ violations … if they are violent, that’s one thing … if they are peaceful yet vile and obnoxious, they should be as entitled to be on a university campus as anyone else …
History - LEARN from it ! One of the most effective military combinations is the pair-bonded couple, because they learn to function as a very effective single unit … in ancient times, one wielded the shield and the other wielded the offensive weaponry … Notice the lack of gender reference in this paragraph …
December 7th, 2005 at 4:15:08 pm
“Would you have the same concerns if he was straight–that he would put some hot chick ahead of you for medical attention?”
Um, i wouldn’t do that myself… uh, definitely not.. I mean wait, she’s not Jennifer Anniston right? Then I might make an exception… just that once though.
December 7th, 2005 at 6:21:36 pm
Whatever yourself, Brendan. The subject was changed by David’s analogy to race, not my response to it, and no amount of name-calling will change that. Disagreeing without being disagreeable apparently isnÃÂt taught until third year at ND Law. An emotional lawyer is a bad lawyer.
You’ll start making some headway with me when you respond on the merits rather than banging your spoon on your highchair about how “weak,” and “easily rebutted” my original argument supposedly was. If it was so “pathetically lame,” how come you have yet to substantively rebut it by explaining how race and sexual orientation have similar effects on the behavior of people in the military? Since the status quo is that the military does not discriminate on the basis of race, but does so on the basis of sexual orientation, it would seem the onus is properly placed on YOU to prove why the two should be treated the same, and not on ME to explain why they’re different.
Colin Powell made this “weak” and “pathetically lame” point best: “Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.”
David at least finally gave it a substantive shot:
“The feeling against blacks and other minorities in this country, was so much more pronounced then is the current anti-gay attitudes.”
Perhaps, but youÃÂll find that prior to the desegregation of the military during the Korean War, a survey of white male Army personnel found only 33% opposed to integration. A similar survey conducted in 1993 concerning allowing homosexuals to serve showed 78% opposed. Look it up.
“In addition it is entirely possible (and likely) for a person to serve as an openly gay man and not be making out with his boyfriend in the barracks, where as it was impossible for a black man to not be black around his fellow soldiers. Under your argument, because it might make them uncomfortable you are saying that racial discrimination was a completely acceptable policy.”
ItÃÂs true that one can hide sexuality but not race (which would seem to lend credence to the militaryÃÂs donÃÂt ask donÃÂt tell policy). ItÃÂs not true, however, that IÃÂm saying merely being made uncomfortable is what justifies discrimination against homosexuals in the military. ThatÃÂs part of it, but only half the picture. The how and the why are important too here. There are two entirely different central issues involved with race and sex. Racial discrimination is based on unsubstantiated prejudice and stereotyping that must be learned. Discriminating on the basis of sexual orientation, on the other hand, is not necessarily learned through such prejudices, but can reflexively arise as a result of having what is, as Colin Powell describes, ìperhaps the most profound of human behavioral characteristicsî turned on its head.
“THe idea that gay men are going to be sitting around making out in the barracks is asinine and frankly a pathetic attempt at making an argument against gays being allowed to openly serve in the military because it assumes a certain type o behavior would therefore no longer be prohibited. There is NO EVIDENCE WHATSOEVER to suggest this. NONE.”
It is indeed asinine, which is why I never proffered it.
“If you are in the military and you are serving with a person who is gay, and that person does nothing that violates the regulations applicable to all military personel (i.e. carrying on a relationship with a squad member, behaving in an inappropriate way towards other soldiers), then you merely feeling uncomfortable is YOUR problem and YOU are more likely to cause problems then they are.”
Here youÃÂre right, David. The problem is with, according to the 1993 survey I mentioned, the 78% of the military that doesnÃÂt want to admit gays, not the gays themselves. Is this fair to gays who want to serve? Of course not. My argument is based on pragmatism, not fairness. In a fair world, the military wouldnÃÂt be the predominantly white, southern, conservative, religious institution that it is, and its members would coexist happily with homosexuals. But thatÃÂs unfortunately not the way things are, and you have to ask whether the cure is worse than the disease. Maybe itÃÂs not, and open homosexuals will be integrated seamlessly into the military when its policies finally catch up to the rest of society. But looking at it objectively, IÃÂm inclined to humor the military because of the job they do. Forcing people to coexist with others who they might otherwise wrongly take offense to is fine for the workplace. Nobody gets killed in staff meetings. The needs of the military and the needs of civilian society are quite different, however. A very many things that are intolerable in civilian life are not only tolerated in the military, but are often necessary to the mission at hand. Far too many of the arguments in favor of gays in the military overlook this point entirely.
“A soldiers effectiveness to his squad and whether or not his fellow soldiers can trust him or not should be based on his conduct as a soldier, not his private life.”
True. Watch ìJarhead,î however, and youÃÂll see that most of the time military service consists of killing time, and itÃÂs folly to think soldiers who serve closely together in combat situations can completely compartmentalize their private lives.
“[T]he idea that a person can’t put aside their personal comfort level when appropriate is more a sign of weakness on the part of that person.”
Maybe, but if a vast majority of those who provide such a vital service are ìweakî in that way, is it worth it to expose that weakness just to prove a point?
“Second, as Brendan alluded to, my opinion on the morality and my own personal reactions to homosexual behavior have absolutely nothing to do with what is and isn’t constitutionally acceptable.”
Neither does mine.
“Personally I consider homosexual behavior to be immoral, but that doesn’t mean i think a person who is homosexual should therefore be prohibited from serving in the military.”
Interesting. I happen to think thereÃÂs nothing inherently immoral about homosexuality, but am persuaded by the pragmatic argument in support of the current policy.
December 7th, 2005 at 6:34:56 pm
Caveat: I’m peruaded by the current policy insofar as it relates to forward personnel. The same rationales don’t really apply to the military as a whole.
December 7th, 2005 at 6:37:52 pm
Disagreeing without being disagreeable apparently isnÃÂt taught until third year at ND Law. An emotional lawyer is a bad lawyer.
God, I hate it when people say sh*t like this. News flash: THIS IS A BLOG. I AM NOT IN COURT. I’M NOT BEING A LAWYER. I’M BEING A BLOGGER. Sheesh!
The subject was changed by David’s analogy to race, not my response to it, and no amount of name-calling will change that.
Wrong. David’s analogy to race didn’t change the subject to what David, or anyone else, personally feels about homosexuals. You did that. David’s analogy to race was well within the bounds of initial discussion about state action, where it’s appropriate and where it isn’t. You then came out of left field with “being straight and reflexively turned off at the sight of two men kissing does not make you a member of the KKK” and accusing David of “think[ing] that anyone who is turned off by homosexuality is equal to a racist”… which David did not even remotely say. TOTAL CHANGE OF SUBJECT! David never said anything that made that comment relevant.
As for why I haven’t rebutted your argument… it’s already been rebutted by others, so I don’t see the need. My objection is purely to the manner in which you “responded” to David’s analogy by attacking a straw man, suggesting that he was impugning the character of people who are “turned off” by homosexuality when in reality, quite clearly, he was doing no such thing. If you’ll just retract those two sentences, I’ll butt out.
December 7th, 2005 at 6:40:37 pm
“Second, as Brendan alluded to, my opinion on the morality and my own personal reactions to homosexual behavior have absolutely nothing to do with what is and isn’t constitutionally acceptable.”
Neither does mine.
Then why did you bring up personal reactions to homosexual behavior in your response to David’s comment, which did not mention personal reactions to homosexual behavior? Why did you bring something up that you now admit has nothing to do with your argument?
December 7th, 2005 at 6:41:07 pm
TJ is saying that the military discriminates based on sexual orientation, but asks, sholdit be allowed? He thinks yes, Brendan and David think no. David is saying that discriminating based on sexual orientation is the same as discriminating based on race, whereas TJ thinks that while both are discrimination, they are not the same, and wonders if the government hasd a compelling interest to discriminate based on sex when it comes to the military. So far, it sounds more like a disagreement over what the government ought to do than the food fight it is decensing to. The government could be said discriminates based on race or ehnicity when it does racial profiling, and one might argue that racial profiling, while discriminatory, is something the government should be allowed to do. Many wil disagree, ofcourse, but it is not an unreasonable position to hold that racial profiling is practical. So, I think what TJ is trying to to say is that he views sexual discrimination in the military as something akin to the discrimination the government engages in when it does racial profiling. Is it right? Should the government do it? That should be the argument. Personally, I do not care if gay people join the military. If a dude is willing to serve and die for his country, let him/her. If the soldier is confornfortable, get over it cuz your life depends on it. However, I will point out that many military men would feel very unconfortable serving alongside gay men, even if they are not rwacist bigots (my brother would be an example) and I would venture to guess that many believe women are fine in the military–so long as they are not out in combat, doing a “man’s job”. Many of these men who feel this way are not total jerks 9as in, all jerks, all the time, as opposed to jerks abotu this but normal and nice people otherwise), even if they are basically discriminating based on sex and sexual orientation. I would hope that they can rise above it, sure, but I just want to point out that TJ is hardly alone is his opinion, nor does his opinion render him a total jerk.
December 7th, 2005 at 6:50:23 pm
“David’s analogy to race was well within the bounds of initial discussion about state action, where it’s appropriate and where it isn’t.”
Sure, that’s why he edited TJ’s post to say:
“There are reasons the military doesn’t allow blacks in the military, and they are all in the interest of saving lives, not RACISM, and i can tell you, I for one greatly appreciated it. Group dymanics/cohesion is the other major reason. Having to deal with the RACIST feelings of another soldier towards you is another distraction that could get in the way of the main objective. And in my experience, distractions can get you killed.” ???
I don’t know where I got the idea he was implying racism.
December 7th, 2005 at 7:26:44 pm
Joe Mama, why is implying racism some how outside the bounds of discussion? Of course I modified TJ’s post using racism instead of homophobia, my whole POINT was exactly that, that what he was advocating and the logic he was using were exactly the same as that used by people in their attempt to keep blacks out of the military.
If you want to argue that this type of discrimination is somehow acceptable then fine. But in order to do so you have to demonstrate that allowing gays to serve openly in the military would cause a sufficiently negative situation as to justify a practice which goes against the very princples they are defending.
So far, to the best of my knowledge, not one single substantive argument has been put forward which demonstrates this. The only thing that I have seen is arguments like yours, positing large amounts of what ifs and implying that by being gay a person is more likely to engage in behavior that is detrimental to his unit (behavior that would allready be prohibited).
As to your poll results above, I frankly don’t give a damn if people are uncomfortable with gays serving. I don’t give a damn if they are uncomfortable with women serving. Unless they can demonstrate an actual threat to the military, rather than just not liking the idea, then to them I say too damn bad.
Here’s a question for you, lets say we take a poll of the troops serving in Iraq, if 60+ percent of them said they didn’t want to be serving there, does that mean we should bring the troops home now? I mean we are putting these soldiers in a position that obviously makes them uncomfortable, and as you said that is likely to lead to their being much less efficient and effective.
December 7th, 2005 at 8:06:37 pm
“Joe Mama, why is implying racism some how outside the bounds of discussion? Of course I modified TJ’s post using racism instead of homophobia, my whole POINT was exactly that, that what he was advocating and the logic he was using were exactly the same as that used by people in their attempt to keep blacks out of the military.”
I get your parallel between homophobia and racism loud and clear.
“If you want to argue that this type of discrimination is somehow acceptable then fine. But in order to do so you have to demonstrate that allowing gays to serve openly in the military would cause a sufficiently negative situation as to justify a practice which goes against the very princples they are defending.”
If you’re looking for hard facts on the effects of a policy that has never been implemented in our military, I have none to give you. I can only surmise from the surrounding circumstances. As for “a practice which goes against the very princples they are defending,” ever hear the saying that the military preserves democracy, but doesn’t practice it?
“So far, to the best of my knowledge, not one single substantive argument has been put forward which demonstrates this. The only thing that I have seen is arguments like yours, positing large amounts of what ifs and implying that by being gay a person is more likely to engage in behavior that is detrimental to his unit (behavior that would allready be prohibited).”
You clearly haven’t understood a word I’ve said, otherwise you’d see that I NEVER claimed that gays are more likely to engage in prohibited detrimental behavior. My concern, from a purely pragmatic point of view, is the effect on the rest of the unit.
“As to your poll results above, I frankly don’t give a damn if people are uncomfortable with gays serving. I don’t give a damn if they are uncomfortable with women serving. Unless they can demonstrate an actual threat to the military, rather than just not liking the idea, then to them I say too damn bad.”
Your indifference to (or contempt for) the military’s reaction is precisely the problem.
“Here’s a question for you, lets say we take a poll of the troops serving in Iraq, if 60+ percent of them said they didn’t want to be serving there, does that mean we should bring the troops home now? I mean we are putting these soldiers in a position that obviously makes them uncomfortable, and as you said that is likely to lead to their being much less efficient and effective.”
Cute, but a non-starter. If over 60% of the troops thought we shouldn’t be in Iraq, then our all-vountary army is in serious trouble. That’s obviously not the case, as troop re-enlistment is at record levels. Firefighters are likewise probably a little uncomfortable while they’re fighting fires, but that doesn’t mean they don’t do their job putting them out.
December 7th, 2005 at 8:51:30 pm
Actually Joe Mama, troops are being FORCED to re-enlist under the military’s stop loss program.
As for my indifference (or contempt) for baseless intolerance, frankly I don’t see it as a problem at all.