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FAIR v. Rumsfeld:

An amicus brief is being prepared to be filed in the Supreme Court on behalf of law students and law professors urging the reversal of the Third Circuit's opinion in FAIR v. Rumsfeld. The brief will be filed in support of the constitutionality of the Solomon Amendment. The brief is authored by my colleagues Nelson Lund, Dan Polsby, and Joseph Zengerle of George Mason Law School and several lawyers from the law firm of from Wiley, Rein and Fielding in Washington, DC.

If you are law professor and you think you may be interested in signing onto the brief, you can download a copy of the brief here. Instructions for how to go about affixing your name to the brief are provided there as well as well as who to contact for further info.

Please note that if you would like to sign your name to the brief, you must do so by NOON, Friday, July 15, 2005.

Please do not direct any questions or anything else to me--follow the contact info indicated in the link. I am signing the brief, but am not a primary author on it, so I can provide no answers about details or logistics.

Larry (mail) (www):
And remember folks, it is "like totally ethical" to sign off on a brief that you 1) didn't read; and/or 2) took no part in writing.
7.15.2005 6:01am
Downtown Lad (mail) (www):
It's perfectly acceptable for the government to force colleges to bring anti-gay bigots onto campus, but god forbid the government tries to STOP discrimination by saying that the Boy Scouts can't discriminate against gay people, well that's unconstitutional.

Completely inconsistent in my book.

Whatever happened to the right of assembly? These colleges don't want to mingle with bigots. How can the government force them to? Because they control the purse, you might say? Well, what's to stop the government from raising taxes to 100% and only giving money to people who toe the governmeent line?

I support the right of the Boy Scouts to revel in their hatred of gay people. I also support the right of law schools to stand up for equality. What's next? Will the government start saying that colleges can't get any money if they have an anti-discrimination policies based on sexual orientation? That is the next step you realize, don't you?

The Solomon Amendment was enacted for one reason only. Not to allow the military to recruit. But for Republicans to say loud and clear "God hates Fags". And you're doing a very good job at helping to get that hateful message across.
7.15.2005 11:10am
Hans Bader (mail):
I've never understood how the Solomon Amendment, whatever its merits, is any more of an intrusion on public universities' purported free speech and association rights than 42 USC 2000b(a), which forbids them to discriminate against religious students in admission. How is being required to temporarily tolerate a military recruiter any bigger a burden than being made to admit, for four years, as a student a proselytizing antigay Christian who won't accept practicing gays in his church? And if not, then isn't the claimed burden on free association simply to minor to trigger strict scrutiny, as the public universities challenging the Solomon Amendment seek to do?
I've also never understood why the briefs in support of the Solomon Amendment give so little attention to the Grove City case, in which the Supreme Court held that Congress could condition federal funds for state and private colleges alike on equal access. Here, it's just asking for equal access for military recruiters, not that the colleges endorse the military's ill-conceived blanket ban on gays.
And I've never understood how the Third Circuit could facially invalidate the Solomon Amendment, without even discussing whether many of the colleges subject to it -- state colleges -- arguably lack any First Amendment rights (since several circuits have held that state actors lack rights under the First Amendment, which is designed to limit the power of the state, not give it rights). Giving state institutions first amendment rights opens the door to them invoking the First Amendment freedom of association in order to discriminate, rather than to provide equal access to all qualified members of the public. That might be a bad precedent for gays as well as straights.
7.15.2005 11:34am
Larry (mail) (www):
I wonder why more signatories have not served as enlisted men and put their lives at risk? I mean, come on, while JAG is slightly more dangerous than working in a law firm, it is hardly a foxhole. Indeed, statistically, my guess is that JAG is more healthy than working at BIGLAW, as 1) the hours are shorter; and 2) a healthy lifestyle is generally encouraged by the military.

These people call themselves "patriots" but they don't seem to want to enlist like the bottom 10% of the country does. Somewhere along the line, it became possible to be a "patriot" just by saying things or signing a brief. (Which is good for me, as I deplore physical violence and war and so I think it is only for the lower classes that like professional wrestling and invading Iraq.)

Instead, we shmooze, say pithy things about the law, and forward their resumes around like a dose of herpes. Law students seem to love to say that they "really" wanted to join the military, but couldn't. Bull. They can call ANY recruiter and enlist tomorrow. Instead they just want to be able to say that they care about the military and do the least dangerous thing possible.

Perhaps this is really about the fact that people feel that the social order that us members of the upper middle class so love will be disrupted by having the red necks and poor people (who make up the bulk of the enlisted men) salute gay officers, or having gay drill sergeants run basic training drills. Maybe the rednecks (not the people in law schools) will start quitting the military in droves if they have openly gay drill sergeants. (In reality, this doesn't happen. Most people who actually have to work with gay people either are accepting of it, or learn to tolerate it. Girls (even members of the Federalist Society) tend to glom on to gay guys.
7.15.2005 11:39am
Hans Bader (mail):
I've never understood how the Solomon Amendment, whatever its merits, is any more of an intrusion on public universities' purported free speech and association rights than 42 USC 2000b(a), which forbids them to discriminate against religious students in admission. How is being required to temporarily tolerate a military recruiter any bigger a burden than being made to admit, for four years, as a student a proselytizing antigay Christian who won't accept practicing gays in his church? And if not, then isn't the claimed burden on free association simply too minor to trigger strict scrutiny, as the public universities challenging the Solomon Amendment seek to do?

I've also never understood why the briefs in support of the Solomon Amendment give so little attention to the Grove City case, in which the Supreme Court held that Congress could condition federal funds for state and private colleges alike on equal access. Here, it's just asking for equal access for military recruiters, not that the colleges endorse the military's ill-conceived blanket ban on gays.

And I've never understood how the Third Circuit could facially invalidate the Solomon Amendment, without even discussing whether many of the colleges subject to it -- state colleges -- arguably lack any First Amendment rights (since several circuits have held that state actors lack rights under the First Amendment, which is designed to limit the power of the state, not give it rights).

Giving state institutions first amendment rights opens the door to them invoking the First Amendment freedom of association in order to discriminate, rather than to provide equal access to all qualified members of the public. That might be a bad precedent for gays as well as straights.
7.15.2005 11:39am
Clayton E. Cramer (mail) (www):
Larry says:

And remember folks, it is "like totally ethical" to sign off on a brief that you 1) didn't read; and/or 2) took no part in writing.

1. Where does Todd propose that anyone sign off on it without reading it?

2. This sort of mass signature of briefs and ads by professors is actually pretty common—at least when the left does it. I recall one gun control case a few years ago where there were 59 professors who signed an amicus brief in favor of the claim that the Second Amendment did not protect an individual right. Did each of them write one sentence?
7.15.2005 11:53am
Downtown Lad (mail) (www):
These colleges aren't even discriminating against the military. They're just saying that if you discriminate against gay people, then you can't recruit on campus. That applies to ANY company, public or private.

If the military wants to recruit on campus, since they are SOOOOO in need of more recruits, then why don't they start allowing gays to serve in the military? That would certainly solve their recruitment problem a hell of a lot more than the four law school students they'll recruit.
7.15.2005 11:58am
Zywicki (mail):
Larry:
Clayton Cramer is obviously correct, I don't imply that anywhere.

But just out of curiosity, what exactly do you see as the ethical duties of a client, as opposed to his or her counsel? The brief to be filed is an amicus brief on behalf of the law students and law professors as clients, not as counsel. The lawyers from George Mason and Wiley are the counsel.

I am not familiar with any ethical rule that would impose on the client the obligation to write his own brief, even if that client was an attorney or law professor. Different clients may, as a matter of prudence or expertise, want to participate in the writing of a particular brief, but I've never heard it said that a client has an ethical duty to do so.
7.15.2005 12:56pm
Larry (mail) (www):
So let me get this straight: the signatories of the briefs are the clients of the writers ? I guess this would mean that they enjoy an attorney-client relationship with the writers, and that the lawyers who signed off on it have made sure that each of the signatories' interests are being adequately represented in this brief ?

Is this the way you resolve the ethical problems?

(I didn't say that "Todd" told people to sign it without reading it. However, if you are a lawyer and you sign off on a brief that you have not read, I think that you have an ethical problem. That was my argument. )

Now, I still think that as a signatory of a brief (even if you didn't enter an appearance) you have a duty of candor to the tribunal, which would require you to investigate all of the claims made in the brief (or at least read them.)

Finally, I like Todd's argument that someone is "obviously" correct. Using the word "obvious" is, indeed, a good legal argument, and using it a lot will convince everyone of everything.

Someone else said:


This sort of mass signature of briefs and ads by professors is actually pretty common—at least when the left does it.


So what? That doesn't make it right. What do I look like ? Someone who votes or considers themselves "right" or "left" ? Those terms are for non-lawyers.


I recall one gun control case a few years ago where there were 59 professors who signed an amicus brief in favor of the claim that the Second Amendment did not protect an individual right. Did each of them write one sentence?


I don't see your point. I thought that 2d-amendment brief was wrong. Why do you think that raising an example of someone with a contrary political position will make me change your mind or discredit my position.

Of course, I guess I am talking to a bunch of people who think that the "majority" is correct.
7.15.2005 1:43pm
Guest:
I guess this would mean that they enjoy an attorney-client relationship with the writers, and that the lawyers who signed off on it have made sure that each of the signatories' interests are being adequately represented in this brief?

Well, yes, as to your second point because those who assent to having their names added to the amicus group are—for purposes of Prof. Zywicki's solicitation—law professors, who have affirmatively contacted him indicating their desire to join in the brief. I think one can safely assume that when a member of the legal academy expresses assent to the content of a brief, which presumably contains in large measure a discussion of applicable law, his/her interests are being adequately represented. What greater investigation into the matter do you think ethical obligations require?

Now, I still think that as a signatory of a brief (even if you didn't enter an appearance) you have a duty of candor to the tribunal, which would require you to investigate all of the claims made in the brief (or at least read them.)

Where do you get that from? Surely, the lawyer who signs the brief has such an obligation (cf. Fed. R. Civ. P. 11), since he/she is the one who is actually communicating with the court. And, I agree, it is bad form for one to join a brief that one has not read, but does that raise ethical questions under the MRPC? Not so far as I see, especially when the lawyer assumes the position of litigant rather than officer of the court.
7.15.2005 2:38pm
Clayton E. Cramer (mail) (www):
Larry says:

These people call themselves "patriots" but they don't seem to want to enlist like the bottom 10% of the country does. Somewhere along the line, it became possible to be a "patriot" just by saying things or signing a brief. (Which is good for me, as I deplore physical violence and war and so I think it is only for the lower classes that like professional wrestling and invading Iraq.)
This is a pretty bigoted and incorrect statement. The military, for example, now requires you to be a high school graduate, and no longer accepts people sent there as an alternative to jail. (This was common, once upon a time.) The assumption that these are the bottom 10% of the society is simply wrong. (The high school graduate requirement alone takes the military out of the "bottom 10% of the society" requirement.)

Larry also misrepresents the military's concern:

Perhaps this is really about the fact that people feel that the social order that us members of the upper middle class so love will be disrupted by having the red necks and poor people (who make up the bulk of the enlisted men) salute gay officers, or having gay drill sergeants run basic training drills.
The concern isn't about having to "salute gay officers." It is problems like the described in Kevin M. McCrane, Wall Street Journal, Dec 2, 1992, A10, where McCrane described his experiences on an immediately post-World War II ship where homosexual petty officers turned the ship into a chamber of horrors. Unlike a civilian job, the military often demands absolute obedience under circumstances where there is no easy to way to appeal to a higher authority.

We already have a bit of a problem with rapes and superiors taking advantage of their position with female soldiers. If you don't think the problem would be at least as bad with homosexuals in the military, you are kidding yourself.

Larry writes:

I don't see your point. I thought that 2d-amendment brief was wrong. Why do you think that raising an example of someone with a contrary political position will make me change your mind or discredit my position.
My point is that academics piling on to sign briefs that they didn't write is hardly new. If it is really the wrong thing to do, it is the wrong thing to do for any case—not just this one.
7.15.2005 2:42pm
David M. Nieporent (www):
I didn't say that "Todd" told people to sign it without reading it.

That's right, Larry, you didn't "say" that. You only "implied" it. Otherwise, your statement was a complete non-sequitur, as it raised a point that wasn't even on the table.

In fact, though, as your second post in this thread illustrates, you simply dislike the position the brief takes, and so you're trying to be argumentative.

Downtown Lad: Well, what's to stop the government from raising taxes to 100% and only giving money to people who toe the governmeent line?

That (a) will never happen, (b) would pose a serious problem if it did happen, and (c) isn't the issue presented here. The Boy Scouts _were_ being forced, by law, to act in a way they didn't want to. The schools are merely being bribed to do so.

Neither the wisdom of the Solomon Amendment nor the wisdom or constitutionality of the military ban on gays is the legal issue presented in this case.

Hans: good points. Also the Bob Jones case. If the government can deny tax benefits because it disapproves of an institution's religious views, surely it can deny funding to an institution that won't cooperate with it in recruiting.
7.15.2005 2:47pm
Daniel Chapman (mail):
I'm a law student who just finished first year, and I plan on enlisting in JAG after I graduate. Frankly, I'd be a little put off if I were forced to travel to see a recruiter just because the administration is trying to promote its liberal agenda.

In most cases the recruiter comes at the request of students who want interviews anyway.
7.15.2005 3:02pm
Dick King:
I find it amusing that many of the schools that supposedly ban military recruitment because of the military's anti-gay policies have Alpha Phi Omega chapters on their campus.

Alpha Phi Omega is an arm of the Boy Scouts and shares their anti-gay policies, which are worse than anything the military has.

Could it be that the subject law schools don't want military recruiters on campus and found an excuse? Nahhhh....

-dk
7.15.2005 3:04pm
Downtown Lad (mail) (www):
Wow Clayton. Can you be any more of a bigot?

Maybe you should actually go out and talk to a real live gay person before classifying all of them as rapists.

I'm really interested in hearing about the massive incidence of gay rape in the British and Israeli armies, both of which function just fine thank you, even though they have gay soldiers serving openly.

But that's not the point, is it? It's irrelevant that the Israeli army, the most effective army in the world (yes - better than the U.S.), has gay people serving openly. The only point is that you hate gay people and you can't tolerate to be in their presence.

Yes - Bigot is the word for that.
7.15.2005 3:09pm
Clayton E. Cramer (mail) (www):
Downtown Lad writes: <blockquote>
Wow Clayton. Can you be any more of a bigot?

Maybe you should actually go out and talk to a real live gay person before classifying all of them as rapists.
</blockquote>I lived in the San Francisco Bay Area for 17 years. I have talked to a lot of gay people, worked with a number of them. Where did I say that "all of them" are rapists? I also mentioned the problem that we already have with rape and coercion because of the presence of females soldiers. Does that mean that I think all heterosexual men are rapists?

In any male population, there are going to be some small percentage that will engage in rape. There will be some who will be restrained by the knowledge that they may not get away with it--but in some military settings, this risk may be significantly reduced.

In any male population, there is going to be a larger percentage of men who will rationalize taking sexual advantage of a subordinate. It happens in civilian jobs; you should expect it to happen in the military. It already happens with female soldiers; to think that this isn't going to happen with homosexuals in positions of authority is utter delusion.
7.15.2005 3:20pm
Larry (mail):
By "bottom 10% of society" I was referring to the bottom 10% of public highschool graduating classes. Of course, we all come from schools where everyone can be in the top quarter. I sure wouldn't let my kid go to a school where he had a chance of not appearing to be real smart. My kids, however, will be able to tell tales of how they are "in touch" with the poor, and law schools will buy their BS commitment to public service. They will, of course, do their time in BIGLAW.

My point was not whether the military was right or wrong, or whether they had a valid concern or not. My point was, however, that the people who are writing amicus briefs and lobbying for anti-gay legislation seem to envision a world where straight red necks would have to salute gay officers.

Someone said:


We already have a bit of a problem with rapes and superiors taking advantage of their position with female soldiers. If you don't think the problem would be at least as bad with homosexuals in the military, you are kidding yourself.


Can you give me some idea of how many times per year, superior officers take advantage of inferior ones for sex ? More than 100 ? 20? 30? This should be pretty easy to figure out since you made the assertion. Also, why do you think that gay officers are more likely to rape?

Anyway, people who want to join JAG are doing so because they want to be lawyers. Like all law students they do whatever it takes to get a job, and it isn't as if any of them said "Oh, JAG isn't recruiting... I guess I will not even try to get an interview."

So, the person who said this:

Frankly, I'd be a little put off if I were forced to travel to see a recruiter just because the administration is trying to promote its liberal agenda.



Would, if a JAG recruiter wasn't on campus, would have done what everyone at TTTs does and send in a resume. Maybe the recruiter would have met him off campus. However, to say that he wouldn't have joined JAG just isn't credible. Mr. Chapman, of course, could easy enlist as an enlisted man if he wanted. In fact, if he went to a public school, I am sure recruiters came to his high school to recruit him. He turned them down. Instead, went to college and law school first. This is what I did, but I don't like physical danger.

Now, remember folks, I am not taking a position on whether the Solomon Amendment violates the First Amendment: only questioning the motives of people who just love to say that gays are a threat to the military.

Someone said:

In fact, though, as your second post in this thread illustrates, you simply dislike the position the brief takes, and so you're trying to be argumentative.


I say: Oh no! Not argumentative. About a legal brief. The horror! Oh no! But, as I said, I question the motives of the people signing it.

Someone also said:

I think one can safely assume that when a member of the legal academy expresses assent to the content of a brief, which presumably contains in large measure a discussion of applicable law, his/her interests are being adequately represented. What greater investigation into the matter do you think ethical obligations require?



We can? Most clients have initial meetings and discussions about what their interests really are and stuff.

Though I guess I see the argument: lawyers can get around R. 11 obligations by taking the role of "litigant" rather than "attorney." Wow! What a loophole (which, if I recall correctly, some states have closed), but I would have to research that.
7.15.2005 3:32pm
Downtown Lad (mail) (www):
Gays raping their subordinates in the army???? You do realize that there are probably close to 100,000 gay people serving in the army right now, don't you? Care to provide me with any stats on gay rape in the army?

I fail to see how having a gay person be open about their sexuality (instead of lying as they are doing today) will make one more likely to commit rape? Just as in the general population, the overwhelmingly vast majority of rapes are heterosexual.

Because that's what this argument is about. Should gay people be forced to lie? Because last time I checked, "thou shalt not lie" was one of the Ten Commandments.

The argument for keeping gays out of the army is antiquated and bigoted, and close to 80% of the population now agrees.
7.15.2005 3:44pm
JonC:
"The argument for keeping gays out of the army is antiquated and bigoted, and close to 80% of the population now agrees."

Perhaps, but the Solomon Amendment is silent on the issue of whether gays should be kept out of the military. In fact, it is not even military policy that gays be kept out of the military- only that no one serving in the military should be asked about, or tell about, their sexuality. "Don't ask, don't tell" is a Clinton-supported initiative that represents a liberalization of previous policy. It is entirely consistent to believe A) that gays should serve in the military and B) that the Solomon amendment is Consitutional.
7.15.2005 4:10pm
Clayton E. Cramer (mail) (www):
Downtown lad asks:
You do realize that there are probably close to 100,000 gay people serving in the army right now, don't you?
Your source for that figure is? It looks suspiciously like you took the current size of the army, and multiplied by the 3-4% of the population that is homosexual. If so, "don't ask, don't tell" has no effect on the number of homosexuals in the military.
Care to provide me with any stats on gay rape in the army?
I've seen news coverage of courts-martial for homosexual rape, but I will agree that they aren't very common. But then again, homosexuality (even consensual homosexuality) is illegal in the military. Do you suppose that this might cause homosexuals to not go into the military?
Just as in the general population, the overwhelmingly vast majority of rapes are heterosexual.
Gee, what a surprise. Heterosexuals are 96%-97% of the population. Since we outnumber homosexuals and bisexuals more than 20:1, the "overwhelmingly vast majority of rapes" are heterosexual—and if they weren't it would be a pretty devastating statement about homosexuals.

Remember also that homosexual rape tends to be greatly underreported. I had a friend who worked at a rape crisis center—and as bad as it was for female rape victims, men who had been raped were even more devastated by it.

Should gay people be forced to lie? Because last time I checked, "thou shalt not lie" was one of the Ten Commandments.
Gay people aren't forced to lie. They just have to decide which is more important to them.

By the way, "You shall not bear false witness" is the commandment that you seem to have misremembered. (Perhaps you need to see them every morning on the lawn of your local courthouse, to keep your memory of them correct!) That's a much narrower prohibition than "You shall not lie." Perjury has always been recognized as more serious than simply lying, and there are times that lying is unavoidable.
7.15.2005 4:27pm
Downtown Lad (mail) (www):
Clayton,


Your source for that figure is? It looks suspiciously like you took the current size of the army, and multiplied by the 3-4% of the population that is homosexual. If so, "don't ask, don't tell" has no effect on the number of homosexuals in the military.

Well we know it has had an effect, because tens of thousands of gay people have been thrown out of the army over the last decade. How can this can possibly be considered "no effect" is beyond me. The fact is that many gay people don't even realize they are gay when they join the army, and many who want to serve, are forced to lie. By the way - the number of gay people in the population is higher than you state, not 3-4%. Even 4% of the voting population self-identifies as gay, and there are plenty more in the closet who don't. So 4% would have to be a minumum, no matter what far-right study you try to quote.

Gee, what a surprise. Heterosexuals are 96%-97% of the population. Since we outnumber homosexuals and bisexuals more than 20:1, the "overwhelmingly vast majority of rapes" are heterosexual—and if they weren't it would be a pretty devastating statement about homosexuals.

Wrong again. What percent of rapes are heterosexual? I'd like some stats. I bet it's more in the 99% range. So I think that's a pretty devestating statement about heterosexuals. I'd put a lot of money into the statement that straight people are more likely to be rapists, as a percentage of the population.

Thou shalt not bear false witness against they neighbor
And who would be guilty of that? Certainly not me. I've read your blog. How many times are you going to equate gay people with pedophiles? Why does a Google search of "Clayton Cramer" and NAMBLA bring back 156 blog entries???? Seems like you have quite a fixation on gay sex and spreading false lies about gay people. Thou shalt not bear false witness indeed....
7.15.2005 4:53pm
Downtown Lad (mail) (www):
JonC,

Perhaps, but the Solomon Amendment is silent on the issue of whether gays should be kept out of the military. In fact, it is not even military policy that gays be kept out of the military- only that no one serving in the military should be asked about, or tell about, their sexuality. "Don't ask, don't tell" is a Clinton-supported initiative that represents a liberalization of previous policy.

You do realize that if somebody tells a commanding officer that someone else is gay, the gay person will be kicked out? If a gay person is spotted holding hands with someone of the same sex, they will be thrown out. You have a completely misguided view of how "don't ask, don't tell" works. The military still "asks" quite frequently, in fact they actively "search" to see if people are gay. And if someonebody ELSE "tells", that will get them kicked out.

Let's see you try and hide your sexuality for a few years. In fact, I'd like to see you hide your sexuality for one week. I bet you couldn't do it. Let's see you avoid saying "my wife" or "my girlfriend" or "my kids" for an entire week. And what is a gay person supposed to say when someone asks them if they are dating anyone? What do they say if someone asks them why they aren't married? What are they supposed to say when someone asks "Isn't that chick hot?"

Simple - if they are in the military - they lie.

Don't ask, Don't tell is not a "Clinton supported initiative" as you would have us believe. Clinton wanted to allow gays in the military. Republicans in Congress and in the military FORCED Clinton into this compromise. I'm not defending Clinton for signing it, but it's a lie to say that this was not a Republican sponsored, bigoted initiaitve.

It is entirely consistent to believe A) that gays should serve in the military and B) that the Solomon amendment is Consitutional.
I don't deny that. What I am saying is that the Solomon Amendment is unconstitutional in my book, as it hinders free speech. I am horrified that the government is using MY tax money to hinder MY right to free speech. It ain't their money - sorry. This amendment raises the horrible spectre that the government could raise taxes to 100%, and only allocate money to people who toe the government line. Those who don't, would get 0%.

What's next? If any university teaches evolution, they will no longer receive government funding? I suppose you think that's Constitutional as well.
7.15.2005 5:03pm
JonC:
"What I am saying is that the Solomon Amendment is unconstitutional in my book, as it hinders free speech."

In what way does the Solmon Amendment hinder your free speech specifically? The Amendment has nothing to do with speech, it simply allows the government to cease its subsidization of institutions that don't give equal access to military recruiters. I suppose you could stretch the facts to claim that the Amendment infringes on the free speech of universities- indeed, that seems to be quite likely the tack that petitioners in this case will take, notwithstanding that, as Hans Bader noted above, SCOTUS rejected a very similar line of argument in the Grove City College case.

However, as your comments in this thread show, it doesn't appear that you are facing any substantial limits upon your ability to express your distate toward the government or towards "don't ask, don't tell". As Orin Kerr once said on this blog (I'm paraphrasing here), even if you dedicate your life to spreading the message that income tax is evil, you still must pay income tax, and it is not a violation of your first amendment rights for the government to make you do so.
7.15.2005 5:14pm
Downtown Lad (mail) (www):
I suppose you could stretch the facts to claim that the Amendment infringes on the free speech of universities- indeed, that seems to be quite likely the tack that petitioners in this case will take, notwithstanding that, as Hans Bader noted above, SCOTUS rejected a very similar line of argument in the Grove City College case.
Yes, it is the free speech of universities that is being hindred. Specifically, the right of universities to create their own non-discrimination clauses. It's a simple one: "Discriminate against gays and lesbians, and you can't recruit on our campus. Allowing you to do so, would show that we condone discrimination against gay people"

But that's EXACTLY what you're forcing universities to do. You're forcing them to let bigoted institutions (and let's face it - the military is very bigoted towards gay people ) to recruit on campus. Thus, the anti-discrimination policy becomes extremely muddled.

However, as your comments in this thread show, it doesn't appear that you are facing any substantial limits upon your ability to express your distate toward the government or towards "don't ask, don't tell". As Orin Kerr once said on this blog (I'm paraphrasing here), even if you dedicate your life to spreading the message that income tax is evil, you still must pay income tax, and it is not a violation of your first amendment rights for the government to make you do so.
Oh really? Then why are the Boy Scouts allowed to ban gay people, when New Jersey law forbate that? Surely, the Boy Scouts could still get their message out loud and clear that they still hate gay people, even if a gay person was a scoutmaster. How is the university any different? They are not. They are one and the same. The government in both cases was trying to muddle the message. Just as New Jersey cannot force the Boy Scouts to muddle the message, the U.S government should not be able to muddle the message of the universities. Ever read the First Amendment? Whatever happened to Congress making no law "abridging the freedom of speech".

Sorry - but this "abridges the freedom of speech" of the University QUITE CLEARLY.

It's funny. Conservatives usally oppose an oppressive government. Except when the government is oppressing gay people. Then they're all gung ho.
7.15.2005 5:30pm
Dennis:
Actually, there are probably about as many homosexual (male on male) rapes as there are heterosexual (male on female) ones, if you include prison rapes. It's hard to say for sure. There is also a blurry line between male rapists of post-pubescent boys (sometimes called ephebiphiles) and adult rapists.

In the general populus, you won't find good numbers because the FBI generally does not track male victims of rape and men are even less willing than women to report rape. cite

Also, by far the largest number of homosexual rapes occur in prison. People generally forget how sickeningly common prison rape is. Something on the order of 1/10 to 1/4 of male prisoners are raped at some point. cite Granted, most prison rapes are not by homosexually oriented men, but it makes it very difficult to sort the numbers out.

There are no good official numbers on prison rape, yet, although there should be in a few years. cite
7.15.2005 5:30pm
Downtown Lad (mail) (www):
Dennis - You have to distinguish between man on man rape and rapes commited by gay people. Prison rapes are most likely rapes committed by straight men, not gay men. Even though the act happens to be homosexual, the perpetrator is not. Which is why most prisoners go right back to having straight sex when they are released. Because their "orientation" is straight. So you can't blame gay men for the actions of straights.

Surely you wouldn't blame straight people if gay men decided to start going out and raping women?

The question should be, are gay men more likely to commit violent crimes than straight men? I say, no way. Straight men are much more agressive and violent in their behavior than gay men. When is the last time you ever saw a fight break out at a gay bar? I've never even heard of one, except for straight people gay bashing gays when they leave.
7.15.2005 5:51pm
JonC:
"Yes, it is the free speech of universities that is being hindred."

Again, the last time that SCOTUS addressed something approximating this question, the Court disagreed with your argument. The First Amendment appears to establish a right that inheres in individuals, not universities.

"Oh really? Then why are the Boy Scouts allowed to ban gay people, when New Jersey law forbate that? Surely, the Boy Scouts could still get their message out loud and clear that they still hate gay people, even if a gay person was a scoutmaster. How is the university any different? They are not."

Again, you are leading the conversation astray. Putting aside the fact that the Boy Scouts do not profess to "hate gay people", the question of law in BSA v. Dale differs from the one presented in FAIR v. Rumsfeld.

"It's funny. Conservatives usally oppose an oppressive government. Except when the government is oppressing gay people. Then they're all gung ho."

Are you referring to me? I've said nothing about my political leanings or my feelings about the government's treatment of gays, so this would be an assumption on your part. In fact, I would like to see the military's treatment of homosexuality activity (at the very least, in non-combat units) modernized. However, I believe that is a change that should be brought about through the legislative branches, not the courts. And also, it is not a statement in favor of oppressing gays to point out that a great deal of the available caselaw and legal history supports the contention that the federal government is perfectly free to exercise its prerogative with regard to spending priorities. The First Amendment does not compel the government to fund particular universities.
7.15.2005 6:00pm
Clayton E. Cramer (mail) (www):
Downtown Lad says:

By the way - the number of gay people in the population is higher than you state, not 3-4%. Even 4% of the voting population self-identifies as gay, and there are plenty more in the closet who don't. So 4% would have to be a minumum, no matter what far-right study you try to quote.
Actually, even very gay-friendly sorts like Professor Volokh accept the 3-4.5% range for homosexuals and bisexuals. There are way too many studies that consistently show numbers in that range--typically 4-4.5% male homosexuals or bisexuals, and 1-2% female homosexuals or bisexuals.

I bet it's more in the 99% range. So I think that's a pretty devestating statement about heterosexuals. I'd put a lot of money into the statement that straight people are more likely to be rapists, as a percentage of the population.
And why do you believe this? Because homosexuals are so much better adjusted than heterosexuals? If so, why do homosexuals have far higher levels of substance abuse problems?

How many times are you going to equate gay people with pedophiles?
About as often as pedophiles march in gay pride parades--without disapproval, until it became politically inexpedient.

Why does a Google search of "Clayton Cramer" and NAMBLA bring back 156 blog entries???? Seems like you have quite a fixation on gay sex and spreading false lies about gay people.
No, I have a "fixation" on stopping sexual abuse of children. As long as homosexual activists insist on allying with pedophile advocacy groups, and as long as the ACLU argues that minors have a constitutional right to have sex with adults (which really means that adults have a constitutional right to manipulate minors into having sex), they are going to have to deal with it.
7.15.2005 6:03pm
Clayton E. Cramer (mail) (www):
Downtown Lad exclaims:
You have to distinguish between man on man rape and rapes commited by gay people. Prison rapes are most likely rapes committed by straight men, not gay men. Even though the act happens to be homosexual, the perpetrator is not.
A recurring claim of gay activists is that men raping men aren't gay--and that many gay men have never had sex with a man. The argument is that homosexuality is an identity, not an action.

I like this idea. I've decided that from now on, I am a Martian. Not that I was born on Mars, or that I live there, or have Marvin the Martian's death ray--but I identify myself as such. See how much simpler life is when you get to redefine reality at will?
7.15.2005 6:06pm
Downtown Lad (mail) (www):
JonC - Actually, the appeals court said that Dale v. The Boy Scouts was the exact same reason that Solomon was unconstitutional. It's a completely valid argument, and the Supreme Court will have a very hard time reconciling Solomon with Dale if they decide to side with the government.
7.15.2005 6:22pm
Downtown Lad (mail) (www):
Clayton - You've now crossed the path into radical right-wing anti-gay conspiracy theories. Bordering on Neo-Nazi thought.

I will no longer discuss the topic with you.
7.15.2005 6:23pm
Clayton E. Cramer (mail) (www):
Clayton - You've now crossed the path into radical right-wing anti-gay conspiracy theories. Bordering on Neo-Nazi thought.

I will no longer discuss the topic with you.
Conspiracy theories?

That NAMBLA marched for many years in gay pride parades without protest or apparent upset? (I've seen the video tapes, and I've read statements by self-identified gay men about the presence of NAMBLA—some disapproving, and some thinking it was really cool.)

That NAMBLA held one of its national conventions in the "Women's Building" (the lesbian clubhouse, effectively, in San Francisco) one year?

When a San Francisco TV station (I think it was channel 4) some years ago started to look in NAMBLA's meetings at the public library, they were told by the gay political leaders that there was no overlap. When the reporter asked Supervisor Roberta Achtenberg (one of those leaders) why 4 out of 5 gay bookstores in San Francisco carried NAMBLA's publication, the "BulliTEN," she responded that this was a First Amendment issue.

In the late 1970s, a lot of the early leaders of the gay liberation movement were forthright and blunt about the importance of pedophilia to the movement. When the ILGA (International Lesbian &Gay Association) lost its UN observer status because of NAMBLA's membership, the fight within the ILGA about expelling NAMBLA and one of its European counterparts caused the ILGA to cease to function—because NAMBLA's supporters supplied most of the money.

I know that a lot of homosexuals don't approve of NAMBLA. Some of them hate it with the same passion that I do. But don't pretend that there isn't a significant faction among homosexual activists who think NAMBLA is okay.
7.15.2005 6:40pm
JonC:
"...the Supreme Court will have a very hard time reconciling Solomon with Dale if they decide to side with the government."

Actually, that's not so, and rather than try to convince you myself, I'll simply refer you to a cogent analysis by law prof. Michael Dorf who, like you, vehemently opposes the military's policies toward homosexuality, but also thinks the Third Circuit decision relying heavily on Dale was flawed.
7.15.2005 6:42pm
Downtown Lad (mail) (www):
Pure bigoted, garbage. It's called hate speech.

Clayton has one aim - to foster hatred of gay people, with the goal of exterminating them.

"Unless we get medically lucky, in three or four years,
one of the options discussed will be the extermination of homosexuals." -Dr. Paul Cameron, a "scientist" often quoted by religious right groups (see below),
speaking at the 1985 Conservative Political Action Conference

It is from Paul Cameron and his ilk that Clayton Cramer is getting his filthy lies from.
7.15.2005 6:46pm
Downtown Lad (mail) (www):
So Jon - I still don't buy the argument. These universities have a non-discrimination policy. It's quite clear. "No bigots are allowed to recuit on campus."

What right does the government have to force the university to muddle that very powerful message?
7.15.2005 6:58pm
Downtown Lad (mail) (www):
A few posts to show that Clayton is full of lies.

http://notfrisco2.com/leones/?p=808

"A final point of concern is the author's use of the following quote: "An emerging area of concern is the move in some pro-gay circles toward acceptance of sexual relations with children before the legal ages of consent" (p. 111). This statement is inflammatory and misleading. There are no widespread movements from within the homosexual community advocating inclusion of groups like NAMBLA into the arena of appropriate social discourse. While groups such as NAMBLA exist, they represent a small minority in the homosexual community and have mirror representatives in the heterosexual community. Such groups are not allowed at state-wide Gay Pride events, they are not allowed at major gay-related fundraising events, nor are they given any credence by the homosexual community at large. Jone's and Yarhouse's statement is "technically" true that "some pro-gay" groups advocate NAMBLA, et al. However, the statement does not represent an accurate portrayal of the homosexual community at large any more than the statement "some Evangelical groups advocate the death penalty for homosexuals" (http://www.godhatesfags.com) accurately portrays the Evangelical community. The inclusion of such statements in a document that purports to represent a fair representation of a community shows the clear bias of the authors since it clearly does not represent the community and plays on fears rooted in the traditional rhetoric against the homosexual community. Rhetorical associations between pedophilia and homosexuality throughout Western history has damaged the homosexual community's standing within the larger society, the homosexual community's view of itself and individual homosexual's perceptions about themselves, just as rhetorical accusations of bigotry and hatred have damaged the credibility of the Evangelical community."

http://www.bridges-across.org/ba/tidh/jones_yarhouse.htm
7.15.2005 7:13pm
JonC:
"What right does the government have to force the university to muddle that very powerful message?"

For my last post in this thread, I'll try to reiterate the point I've been making all along, which is that nothing in the Solomon Amendment prevents universities from preaching anti-discrimination, or even from booting military recruiters off-campus. All the Amendment says is "Okay, you are entitled to your view, and if you want to stop military recruitment on your campus, that's fine too. But don't expect the government to keep you on the dole for funds to which you have no constitutional entitlement." Universities have no First Amendment right to government funding.

Some might argue that if universities were truly interested in keeping their aims "unmuddled", they would kick JAG recruiters off-campus and accept the attendant loss of funds as a matter of principle. That, in my mind, would send a much more "powerful message" than anything that they are currently doing, and would also probably go a lot farther toward mobilizing public sentiment (and Congress) toward repealing the Solomon Amendment through the democratic process. But, instead they want to have their cake and eat it too, with the all-too-likely result that they are going to be shot down by the Supreme Court with nothing to show for it except briefcases full of legal bills.
7.15.2005 7:26pm
Clayton E. Cramer (mail) (www):
Downtown Lad engages in libel:
Clayton has one aim - to foster hatred of gay people, with the goal of exterminating them.
I would vigorously oppose any effort at exterminating homosexuals. I don't even support laws that prohibit adults having homosexual sex in private. (They are clearly Constitutional, however, in spite of Lawrence's attempts to rewrite history.)

I think Downtown Lad needs to cool off and grow up.
7.15.2005 7:57pm
Downtown Lad (mail) (www):
Cool off and grow up????

You spread hateful lies that the gay community is aligned with pedophiles, despite massive amounts of evidence to the contrary, and you expect me to cool off.

I'll say it again - Clayton is trying to malign all gay people as pedophiles, with the hope that society will become so hateful towards gay people that they start to inflict violence on them.

It's the equivalent of saying that Jews make their bread with the blood of non-Jews.

Pure, vile lies.
7.15.2005 8:06pm
Downtown Lad (mail) (www):
JonC - Of course the university's won't give up the government money. They couldn't compete without it.

In that sense - the government is going to be extremely successful in forcing the universities to start adopting anti-gay agendas.

Which was the exact goal of Solomon. He didn't give a damn about recruiting an extra three or four law students (if that). His goal was to demonize gay people.

Again - the government will be very successful in that endeavor.
7.15.2005 8:07pm
David M. Nieporent (www):
I don't deny that. What I am saying is that the Solomon Amendment is unconstitutional in my book, as it hinders free speech. I am horrified that the government is using MY tax money to hinder MY right to free speech. It ain't their money - sorry. This amendment raises the horrible spectre that the government could raise taxes to 100%, and only allocate money to people who toe the government line. Those who don't, would get 0%.

What's next? If any university teaches evolution, they will no longer receive government funding? I suppose you think that's Constitutional as well.


Well, I don't know what's "next," but I know what was _last_ -- if any university teaches racial separatism, they will no longer receive government funding. Did you think that was unconstitutional? Did you think the Supreme Court was wrong in the Bob Jones case?


Also, you don't help your cause when you make up statistics: "tens of thousands of gay people have been thrown out of the army over the last decade." "What percent of rapes are heterosexual? I'd like some stats. I bet it's more in the 99% range."

-----

Larry: Though I guess I see the argument: lawyers can get around R. 11 obligations by taking the role of "litigant" rather than "attorney." Wow! What a loophole (which, if I recall correctly, some states have closed), but I would have to research that.

What's the "loophole"? The brief is still subject to Rule 11. The authors of the brief are still potentially liable, so it's no easier to file a frivolous pleading than before.
7.15.2005 10:29pm
Downtown Lad (mail) (www):
David - The government should not put monetary restriction on speech. So yes, if the Court ruled on that, I absolutely disagree with it. They don't have to give money to any university they don't like. But when they put speech restrictions on it, then I have major problems with it. In other words, they don't have to give a dime to Bob Jones. But when they start saying "No university that says "blah, blah, blah" can receive money. That's an abridgment of free speech and a violation of the Constitution in my book.

Make up statistics? I talk in facts buster, something you obviously don't understand.

"Since World War II, 110,000 Americans have been discharged from the military for being gay or lesbian."

link

The other part of my statement started out "I bet..." Since your IQ is obviously very low, I'll explain it to you. When a sentence starts out with something like "I bet..." it usually implies speculation, not a statement of fact. And after some research though, my numbers are pretty damn close. 96% of rapes are opposite sex. 4% are man-on-man rape, and of those 4%, the majority of the rapists are heterosexual. The majority of the victims of those 4% are gay. Which gets us to about 98%.

link

You should be careful before you make false accusations.
7.15.2005 11:25pm
Eric Rasmusen (mail) (www):
I've skipped most of the dialog here, but people might be interested in an idea I discuss at
http://www.rasmusen.org/x/archives/738: if the Solomon Amendment is violating a law school's free speech, isn't the law school violating the army's free speech?
7.15.2005 11:46pm
David M. Nieporent (www):
Downtown Lad, you obviously have severe anger issues. You also have some intellectual honesty issues.

The statistic you made up -- I even helpfully quoted your own words for you -- was "tens of thousands of gay people have been thrown out of the army over the last decade." Needless to say, "Since World War II" is in no way synonymous with "over the last decade."

As for the other statistic, (1) while you said "I bet," you then went on in your very next sentence to assume that it was true, and (2) unsourced claims from a university's women's studies center are hardly going to convince anybody that isn't desperate to be convinced. Google is a great tool for locating information -- but it doesn't distinguish between peer-reviewed research and something an eighth grader put up on a website.


Finally, with regard to your personal interpretation of the constitution, the problem with it is that it would imply that the first amendment prohibits the government from funding, say, an anti-smoking advertising campaign. Your argument would mean that it was "abriding" the free speech rights of people who want to fund a pro-smoking advertising campaign.
7.16.2005 6:05am
Downtown Lad (mail) (www):
David - Wrong again. You really are stupid.

Over 10,000 gay people have been DOCUMENTED to have left since 1993. I think it's very conservative to estimate that at least as many gays have quit on an undocumented basis. That's called tens of thousands. And last time I checked 110,000 dividied by 60 years since world war II, comes to about 20,000 gay people per decade which is "tens of thousands". Again, that's DOCUMENTED. Which is where I got my original number in the first place.

You accuse me of being wrong. What do you think the number is? Two? Five? You're being very intellectually dishonest.

And you obviously do have a very, very, very low IQ. Because "I bet...." is still construed as a question. An assumption. You obviously don't get it and never will. I even asked if anyone knew the real number... Anyone who can read (which you obviously can't) could figure out what I meant.

You are providing zero info. Zero. Because you are very dumb and don't know how to do research. You just like to say I'm wrong and you show zero data. How many gays have been thrown out of the army in the last decade? What percentage of rapes are heterosexual?

You just like to throw around false accusations. Typical of a bigot.
7.16.2005 1:37pm
Downtown Lad (mail) (www):
Of course I'm not even counting the gay people who weren't kicked out my the military, but were slaughtered instead.

Gay Navy man killed
7.16.2005 4:56pm
Clayton E. Cramer (mail) (www):
Downtown Lad says: <blockquote>
I will no longer discuss the topic with you.
</blockquote>Having declared victory and withdrawn--he then proceeds to keep posting personal attacks on me, comparing me to a neo-Nazi, making false claims that I want all homosexuals dead, and calling others who ask him to provide real data, not just opinions: <blockquote>
David - Wrong again. You really are stupid. ...

You just like to throw around false accusations. Typical of a bigot.
</blockquote>I think when David wrote: <blockquote>
Downtown Lad, you obviously have severe anger issues.
</blockquote>
This nails it rather well, doesn't it?

Most astonishingly of all, Downtown Lad is still insisting that men who rape men are <i>really </i>heterosexuals: <blockquote>96% of rapes are opposite sex. 4% are man-on-man rape, and of those 4%, the majority of the rapists are heterosexual. The majority of the victims of those 4% are gay. Which gets us to about 98%. </blockquote>Using the Humpty Dumpty approach to defining words just doesn't work. Men who have sex with men (whether they force that sex, or it is consensual) are homosexuals. Perhaps I will play Downtown Lad's game, and redefine all women to be men, so that everyone is a homosexual.

The real problem here is that Downtown Lad (and a lot of other homosexual activists) are redefining "homosexual" in a positive way, because they don't want to admit that there are some pretty screwed up homosexuals out there--so men who rape men aren't really homosexuals. How convenient.
7.17.2005 1:22pm
RBG (mail):
It's remarkable to me that Downtown Lad refuses to see the parallels between the law schools in Fair and Bob Jones University in their fight with the IRS. I would be interested in seeing any supporter of the Third Circuit's decision in Fair distinguish these cases.

BOB JONES: School stated that any individual who is currently in an interracial relationship will not be admitted; individuals admitted will not be permitted to date outside their race. Reason given by institution: The Bible teaches that the races should remain distinct and attempts to violate that teaching are in rebellion to God's plan for mankind; it is institution's duty to uphold scriptural teachings. Result: Institution loses and forgoes tax exempt status rather than change its policy.

Fair: School states that any employer who refuses to hire gays will not be admitted to campus for recruiting purposes. Reason given by institution: Discrimination against homosexuals is wrong and should be eradicated from society; it is institution's duty to set an example for society and shield our students from bigots. Result: Institutions and their advocates decline to forgo government funding and seek precisely the opposite result that most supported in the Bob Jones case.

Both these cases involve core First Amendment rights and the infringement on Bob Jones's exercise of its rights is arguably much harsher--because it was an infringement that would have forced the school to change its entire character. What basis is there for distinguishing these cases?

Or perhaps there's not--perhaps this is simply another example of the left's "freedom of speech/association/etc. for me but not for thee" attitude. As if the First Amendment's purpose was not to prohibit unpopular views but only enlightened ones.
7.17.2005 10:07pm
WB:
And yet another comment thread demonstrates the pitfalls of allowing comments.

Before everyone starts rehashing their anger over this issue, read Richard Posner's take on amicus briefs at 339 F.3d 542. It's 5 pages, 1 of which is a summary of the other 4. It's also pretty lucid, and should put to rest most of the bogus procedural objections to law profs signing the amicus briefs.

As for the moral objections, I don't think there's anything that can be said, one way or another to convince people to change their minds on that. What's at stake in this case is actually an interesting and sophisticated constitutional issue, but in light of all of the e-shrieking and talk about rapists, I think it's fair to assume that no one has noticed.

Thank you, Professor Zywicki, for this bit of information about the amicus brief. I am not a law professor, but I hope that any law professors who care to attach their names to the arguments in the brief were able to do so.
7.18.2005 5:42pm
NR (mail):
If this thread is still active, can anyone tell me how the Solomon Amendment is consistent with libertarianism?
7.19.2005 12:19pm