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The Oregon State Bar Journal and Military Advertising:

The Oregon State Bar, which publishes a magazine for its members, generally refuses to accept advertising from employers who discriminate based on (among other things) sexual orientation. In early 2005, an Oregon lawyer objected to a National Guard attorney recruitment ad -- the Guard had "published ads from the Guard once or twice a year for the past five years at a cost of $30 each" (Oregonian, July 16, 2005) -- and the bar president "pulled the Guard's ad from its April issue and referred the issue to the group's board of governors." The board then voted not to exempt the Guard from the ban, but referred the matter to the bar's policy and governance committee. The committee voted 5-1 to recommend an exemption for the military; but in August, the board voted 11-3 not to create such an exemption.

Some people who want to allow military advertising are now circulating a petition asking the Bar to submit the matter to a vote of all Oregon bar members. I'm not an Oregon bar member, but if I were, I would sign the petition, and I would vote to exempt the military, for much the same reason as I've given with regard to law schools' failing to exempt military recruiting from their no-sexual-orientation-discrimination rules:

"Perspective," my New Shorter Oxford Dictionary says, is "a mental view of the relative importance" of things. The debate about whether law schools should exclude the military from interviewing on campus is ultimately not about gay rights. It's about perspective.

Generally, I think that a person's sexual orientation is none of the government's business. There are decent pragmatic arguments for why the military is different; and these arguments might be right, though I'm not expert enough to tell. But let's stipulate for now that the military is wrong to discriminate against gays, and that patriotic gays should be fully welcomed by the military, rather than being told that they must conceal their preferences or risk discharge. [EV adds: My tentative and non-expert thinking is that this stipulation is indeed correct, and that the military should repeal its policy.]

So what? So the military is wrong -— why should law schools therefore exclude the military from recruiting? Many excluded the military before the government threatened to withdraw federal funds from them; and many faculty members would like to do this even now. But why?

Some boycotts are purely instrumental: They aim to make things costly for some entity, so that the entity changes its ways to avoid those costs. But surely this isn't the issue here. If the military changes its policy, it won't be because they're having a slightly harder time recruiting lawyers; the boycott just can't make that sort of practical difference. What's more, officers coming from (say) Yale Law School would likely be more tolerant of homosexuality than the average officer. As a purely practical matter, discouraging Yalies from joining the military may make the military slightly less gay-rights-friendly.

So, of, course the boycott isn't really about practical questions —- it's about morality and symbolism. Even if our boycott will be completely ineffective, the theory goes, it's still the right thing to do: The military's recruitment policies are wrong, so we must refuse to help the military recruit.

And here is where we come to perspective. Let's assume the military's discriminatory practices are bad. But isn't the military also doing something good?

The military, after all, protects all of us -— straight and gay -— from foreign attack. That's pretty good. All the rights we have, we have because members of the military have bled to protect them. That's pretty good. During World War II, the American military was racially segregated, which was bad. But it defeated Japan and helped defeat Hitler, which was good. Perspective is what tells us that the good the military does vastly exceeds the badness of its discriminatory practices.

So as a moral matter, excluding the military isn't just remaining pure of complicity with discrimination. Rather, it's remaining pure by shunning the institution that protects our liberty, our equality, and our lives from forces far worse than "Don't Ask, Don't Tell" can ever be.

And as a matter of symbolism, the symbolic message isn't "We detest discrimination." Rather, it's "Discrimination is so bad that we must wash our hands of the military, in spite of all the good the military does." The boycotters have weighed the military in the balance, and they have found that on balance it should be excluded, rather than included. The symbolism of that is pretty clear.

Only a sense of perspective, a mental view of the relative importance of things, can keep one from making this mistake. Equal treatment without regard to sexual orientation may be important. But what our soldiers, organized into a fighting force, do to defend us is far more important. If that's so, then you can't treat the military as a pariah, focusing on its small error and not on its great virtue.

When I've made this argument before, some people have responded "Well, we wouldn't let a law firm interview if it discriminated against gays; why should we let the military do so?" Yup, that's right, the military, it's just another bigoted law firm. Jones & Smith, the U.S. Army, same difference. That's what the logic of antidiscrimination-above-all tells us.

But perspective reminds us that those institutions that defend our lives deserve slightly more accommodation -— yes, even despite what we may see as their vices -— than institutions that don't. And any morality and any symbolism that fails to keep this proper perspective is not a morality or symbolism to live by.

I've put the PDF file containing the petition, ready to be signed and sent in, here, but here's the text:

PETITION TO THE BOARD OF GOVERNORS OF THE OREGON STATE BAR

WHEREAS, ORS 9.148 provides:

"(4) Active members of the state bar, by written petition signed by no fewer than five percent of all active members, may request that the board of governors submit to a vote of the members any question or measure. The board of governors shall submit the question or measure to a vote of the members of the bar if the question or measure is appropriate for a vote of the members. The initiative petition must contain the full text of the question or measure proposed."

The undersigned, being active members of the Oregon State Bar, request, pursuant to ORS 9.148, that the Board of Governors of the Oregon State Bar submit the following question to a vote of the membership:

Should the Board of Governors immediately allow the Armed Forces of the United States of America to advertise in the Oregon State Bar Bulletin, notwithstanding anything to the contrary in Article 10 of the Oregon State Bar Bylaws, or any other bylaw provision, rule, or policy of the Oregon State Bar?
It is further requested that: 1) the Board of Governors shall take all steps which may reasonably be required in order to conclude the vote of the membership no later than April 30, 2007; and 2) if the majority vote of the membership is in favor of allowing the Armed Forces of the United States of America to advertise in the Bulletin, that the Board of Governors shall take all steps which may reasonably be required to implement the will of the membership, including but not limited to amendment of the Oregon State Bar Bylaws.

[Space for signatures here]

(Please return signed petitions to: Velda Rogers, 1115 Madison Street NE, No. 118, Salem, OR 97303. When sufficient signatures are collected, this petition will be submitted to the OSB Board of Governors.)

Sponsored By: Thomas Boardman (Portland); George L. Derr (Eugene); Stephen D. Finlayson (Burns, HOD Region 1); Gary M. Georgeff (Brookings, HOD Region 3); Diane L. Gruber (West Linn, HOD Region 6); CDR William P. Haberlach (JAGC) USNR-R (Medford, HOD Region 3); Eugene J. Karandy (Albany, HOD Region 3); Peter J. Mozena (Portland, HOD Region 5); Victor C. Pagel (Salem); Velda Rogers (Salem, HOD Region 6); Craig O. West (Tualatin, HOD Region 4).

Elliot Reed:
Professor, I think you've got this backwards. If you believe (correctly) that anti-gay animus is morally wrong and that the military's policy is, in fact, motivated by anti-gay animus (as the Oregon State Bar probably does) then you asking for an extraordinary accommodation. In the absence of any showing of substantial harm to the military, you're asking the Oregon State Bar to (symbolically) declare that the National Guard is so important that it's worth throwing basic moral principles overboard to prevent even de minimis injury to it. I think this is request is going too far; while an extraordinary harm to the military might justify an exception to fundamental moral principles, symbolic and other de minimis harm don't justify such exceptions.
11.6.2006 12:54pm
gerry (mail):
In a related context, as a lawyer with some military experience, some things I could never understand when my law school's faculty, (Penn)joined with other faculties in challenging the Solomon Amendment and banning speech on campus by JAG recruiters, were:
1. Since the DADT policy seems inherently vulnerable to modern challenge with a real plaintiff, real lay and expert witnesses, why didn't they follow that route and win a real case for a real client, defeating DADT head on? Don't they believe in process of law?
2. When I presented that question to one of our professors, his reply was that the courts might defer to the military as a matter of policy, to which my response was (a) probably they won't if your case is well prepared, and (b) if the COURTS can so defer, why can't my law school? (No answer.)
3. And I never got an answer either to this question, which seems cogent in the Oregon situation: by what process, with what evidence, witnesses, briefs, was the determination made to preemptively? ban communication by JAG with Penn's students, or, in this case, the National Guard with Orgegon's lawyers?
Part of my frustration is that they managed in being thrown out eight to zip by the USSC to make fools of lawyers generally.
11.6.2006 12:59pm
Sigivald (mail):
The other difference between the Army and Jones &Smith is that the Army has to discriminate against gays, because Congress told it to in USC 10, 654.

One would think that the reasonable response to that would be for law schools and state bar associations to boycott Congress, or push for a change in the legislation.

Since they choose to boycott the military directly, that suggests that either they don't know about Title 10, sec. 654 (which seems unlikely, given that they're law schools, though I suppose if they're not bothering to do research, they could miss that aspect. That the US Code is involved in this issue never seems to be reported in popular accounts of the issue...), or they just don't care about that, and want to posture.

Neither alternative is reassuring as to their competence or intellectual integrity. Is there some third or fourth position I'm overlooking?
11.6.2006 1:03pm
Thorley Winston (mail) (www):


One would think that the reasonable response to that would be for law schools and state bar associations to boycott Congress, or push for a change in the legislation.


Agreed, unless the Oregon State Bar Journal bars advertising from the federal government rather than just the military (which doesn't set the policy they find so objectionable), we can safely conclude that "discrimination against gays and lesbians" is simply a pretext to cover up the Oregon State Bar Journal's animus against the military.
11.6.2006 1:14pm
Eugene Volokh (www):
Elliot Reed: You're right that it's basically symbolism on both sides. My point is that, given that the military is an institution that is vital for our national survival -- incidentally, today against forces that would do far more to undermine gay rights than the military's Don't Ask Don't Tell policy does -- we should support the military, even in symbolic ways, despite what we see as the errors in its Congressionally mandated hiring policies. We should not lose perspective by focusing on the error (if error it is) of this particular policy, instead of on the great national service that the institution as a whole does.
11.6.2006 1:24pm
Sam Heldman (mail):
Would you feel the same if the military refused to allow Jews to enlist, because of a stated belief that the presence of Jews is bad for morale and cohesion, in light of a (so-called) reasonable fear on the part of Christian soldiers that the Jews would constantly be trying to steal the Christians' money?
11.6.2006 1:42pm
Steve:
The other difference between the Army and Jones &Smith is that the Army has to discriminate against gays, because Congress told it to in USC 10, 654.

Yes, and clearly the military's wishes had nothing to do with the enactment of that statute. I'm sure the military chafes under the oppressive dictates of Congress every day in this regard.
11.6.2006 1:45pm
Eugene Volokh (www):
Sam Heldman: Of course, especially (though not only) when we were fighting an enemy that would do far worse to Jews than the military did.

But why deal with rather implausible hypotheticals, when we have an actual historical analogy? In the 1940s the military in fact segregated blacks based on race, and, if I understand correctly, denied them access to many positions. Should right-thinking colleges and newspapers have therefore refused military recruiters access?
11.6.2006 1:47pm
CJColucci:
Since the military is always vital to our national survival, and symbolic action will never seriously impede its ability to get what it wants, the short version of this post is, "they always win." Even symbolically. At least against us.
11.6.2006 1:49pm
SeaLawyer:
This is just another case of Liberals trying to force their morality on the Military.
11.6.2006 2:08pm
Eugene Volokh (www):
Always win at what? I surely don't say that they should always win in, say, attempts to suppress the speech of private citizens (should they wish to engage in such attempts), or in claims for more funding, or for that matter as to the merits of the Don't Ask, Don't Tell policy. As I said, I tentatively think that the policy ought to be repealed, even if the military leaders, the military rank-and-file, or both think it should be maintained (though if called upon to give a genuinely knowledgeable opinion, I would of course have to take seriously the arguments of those who know the military better than I do).

But if "they always win" means "we should never stand in the way of military recruitment, even when we think the military is engaging in some improper discrimination in such recruitment" (at least so long as the military remains, on balance, the good and valuable force that I describe in my post), then I agree. Our respect for their mission, their importance, and the sacrifice that members make to protect us should indeed trump our disapproval of particular employment policies that they may employ.
11.6.2006 2:11pm
John M. Perkins (mail):
Is case law the only example of the process of law? Are not by-laws, boycotts and petitions valid examples of the process of law?
11.6.2006 2:13pm
Bobbie (mail):
gerry, I'm not sure I follow your reasoning: because the military is arguably doing something in violation of law, law schools only remedy is to file suit as opposed to protest?

Sigivald, your criticism would perhaps be better received it not for the fact that the military has made it clear that it supports the ban on homosexuals serving; if the military came out against don't ask, don't tell, do you think Congress would tell it too bad?

Professor, are you saying that people shouldn't have protested against a military that discriminates based on race? I'm not sure what your last comments means. Perhaps it's just me.

. . .

I'll take the military's claims about national security more seriously when they explain how firing gay Arabic translators is in the country's best interest. At what point can we ignore claims of "national security" to justify questionable policy choices?
11.6.2006 2:17pm
CJColucci:
if "they always win" means "we should never stand in the way of military recruitment, even when we think the military is engaging in some improper discrimination in such recruitment" (at least so long as the military remains, on balance, the good and valuable force that I describe in my post), then I agree.

So are Schenck v. U.S., 249 U.S. 47 (1919), Frohwerk v. U.S., 249 U.S. 204 (1919), and Debs v. U.S., 249 U.S. 211 (1919), still good law?
11.6.2006 2:27pm
te:

But perspective reminds us that those institutions that defend our lives deserve slightly more accommodation -— yes, even despite what we may see as their vices -— than institutions that don't.


What insipid nonsense.

Police officers, firefighters, and lifeguards down at the county pool all defend and protect our lives. So we should permit waivers for them, too?

The "perspective" piece is just another example of a contrived argument that (gee what a coincidence) leads to the preordained conclusion.
11.6.2006 2:30pm
Elliot Reed:
Professor Volokh, thank you for engaging with us in the comments. We really appreciate it! You write:
But why deal with rather implausible hypotheticals, when we have an actual historical analogy? In the 1940s the military in fact segregated blacks based on race, and, if I understand correctly, denied them access to many positions. Should right-thinking colleges and newspapers have therefore refused military recruiters access?
Even assuming they shouldn't have, doesn't the force of this analogy come from the fact that the military was fighting World War II during that period? The Germans and Japanese were engaging in huge-scale genocide and there was a serious danger in that conflict that most of the world would be conquered by totalitarian regimes. Our wars in Iraq and Afghanistan and the "Global War on Terror" aren't comparable.

You also write:
My point is that, given that the military is an institution that is vital for our national survival -- incidentally, today against forces that would do far more to undermine gay rights than the military's Don't Ask Don't Tell policy does -- we should support the military, even in symbolic ways, despite what we see as the errors in its Congressionally mandated hiring policies. We should not lose perspective by focusing on the error (if error it is) of this particular policy, instead of on the great national service that the institution as a whole does.
Are you really trying to say that we should always support the military, even in symbolic ways? That objecting to military policy, even in ways that don't inflict any substantial harm on the military, is never appropriate? How can military policy ever be changed if it can never be criticized?
11.6.2006 2:39pm
Russ (mail):
Since it's Congress that implemented the policy, not the military, shouldn't the Oregon Bar deny advertising from all government sources, and not just the military? Or might they be afriad that'd draw too much attention?
11.6.2006 2:40pm
SeaLawyer:

I'll take the military's claims about national security more seriously when they explain how firing gay Arabic translators is in the country's best interest. At what point can we ignore claims of "national security" to justify questionable policy choices?


First the military doesn't fire people, this not a civilian office job.
As far as the people in school to be Arabic translators,(they were not yet translators) their failure to follow the rules got them discharged.

The comparison of race to homosexuality is comparing apples to oranges. Sexual relationships are bad for business in a regular office job and is 100 times as bad between members in the same unit.
11.6.2006 2:42pm
Jiffy:

The comparison of race to homosexuality is comparing apples to oranges. Sexual relationships are bad for business in a regular office job and is 100 times as bad between members in the same unit.


But what does this have to do with DADT? I doubt the Oregon bar would objects to prohibition of relationships between members of a unit. I also expect such a rule would have far more impact on heterosexuals than on homosexuals.
11.6.2006 2:48pm
CJColucci:
The comparison of race to homosexuality is comparing apples to oranges. Sexual relationships are bad for business in a regular office job and is 100 times as bad between members in the same unit.

Huh? There are several gay men in my office, and I haven't had sex with any of them. I'm reasonably sure that they haven't had sex with each other, either. But I once had a very attractive female office mate. Being a happily married man, I never followed up on my urges, but....And last I looked, the military is now co-ed. I am reliably informed that hetero sex is not unknown in the ranks.
11.6.2006 2:52pm
SeaLawyer:

But what does this have to do with DADT? I doubt the Oregon bar would objects to prohibition of relationships between members of a unit. I also expect such a rule would have far more impact on heterosexuals than on homosexuals.


One of the main reasons homosexuals are not allowed in the Military is because of the reason I stated. The reason don't ask don't tell is evern around was a compromise between Congress and Clinton.
11.6.2006 2:56pm
SeaLawyer:

Huh? There are several gay men in my office, and I haven't had sex with any of them. I'm reasonably sure that they haven't had sex with each other, either. But I once had a very attractive female office mate. Being a happily married man, I never followed up on my urges, but....And last I looked, the military is now co-ed. I am reliably informed that hetero sex is not unknown in the ranks.


So you are saying that 18 year old gay men would never have sex with each other?
Yes there is hetero sex among the ranks, I never said there wasn't and it never turns out to be a good thing.
11.6.2006 2:59pm
Eugene Volokh (www):
CJColucci: I wish you'd have paid closer attention to my earlier statement in the same comment that "I surely don't say that they should always win in, say, attempts to suppress the speech of private citizens (should they wish to engage in such attempts)." Schenck and Debs and such clearly involved the Congress restricting speech, not the military restricting speech, and I'm not at all sure that the military was even the driving force behind those restrictions; but when I said that "we should never stand in the way" (even though the military shouldn't always win in attempts to suppress the speech of private citizens), I meant that as an ethical matter we ought to support the military's recruiting, even if we have a constitutional right to oppose such recruiting.
11.6.2006 3:01pm
Eugene Volokh (www):
Bobbie: You ask "Professor, are you saying that people shouldn't have protested against a military that discriminates based on race?" I of course never said that people shouldn't protest against anything -- but as my response to Sam Heldman makes clear, I certainly do think that we shouldn't have protested by refusing to let military recruiters advertise in our newspapers when the military was engaging in race discrimination in the 1940s. Likewise, Elliot Reed, I never suggested that military policy should never be criticized.

Elliot Reed: I agree that the enormity of the Axis's actions made the good the military did in the 1940s far exceed the evil of race segregation that it engaged in. That's why it would have been wrong to block recruiting: It would have been interfering (admittedly only symbolically) with the fight against a great evil, in the course of (only symbolically) standing up against a far lesser evil.

Yet the same applies here. I agree that al Qaeda, the Taliban, and the Iraqi insurgents are a lesser evil than the Nazis and the Japanese; but they are still far more evil (even in the narrow zone of gay rights) than the Don't Ask Don't Tell policy. We ought not interfere (again, only symbolically) with the fight against that evil, in the course of (only symbolically) standing up against a far lesser evil.

Got to run, and I doubt I'll be able to respond more; but thanks, as always, for the comments.
11.6.2006 3:07pm
whit:
"And last I looked, the military is now co-ed. I am reliably informed that hetero sex is not unknown in the ranks."

fwiw, in many areas (ships come to mind), it has been detrimental (pregnancies onboard etc.) but we are too far along

this may seem like an argument FOR gays in the military (gay women and men don't make each other pregnant), but it;s neither an argument for or against. it is a recognition that gender-integrated assignments have, in some cases, turned out to be pretty detrimental.

maybe we just need to do the clockwork orange treatment on all male sailors and marines on ships to prevent them from copulating with the women.
11.6.2006 3:28pm
CJColucci:
EV: I paid a lot of attention to what you said. I had to, if I were to have any hope of understanding it. And I still don't, apparently. Or if I do, I don't see that there's an actual argument for the position you seem to be taking. Congress at one time passed laws that, as the courts interpreted them, criminalized even ineffectual, utterly symbolic interference with military recruiting, presumably because a functioning military is vital to our national survival. You opppose ineffectual, symbolic interference with military recruiting because a functioning military is essential to national survival. Since you don't have, and, I hope, don't aspire to, the power to put people in jail for ineffectual, symbolic interference with military recruiting, you cast it as an ethical rather than a criminal matter. But why? You've given what you seem to think is a reason -- a functioning military is essential to our national survival -- but the connection between A and B is, to put it charitably, obscure. And, in any event, it would be interesting to know what a first amendment scholar thinks about laws (upheld unanimously by the Supreme Court) that permit criminalization of ineffectual, symbolic interference with military recruiting on the same logic that seems to underlie your "ethical" position, which is why I asked.
11.6.2006 3:34pm
gerry (mail):
Perkins "Is case law the only example of the process of law? Are not by-laws, boycotts and petitions valid examples of the process of law?"
Answer: No. Boycotts? No.

Bobbie: "gerry, I'm not sure I follow your reasoning: because the military is arguably doing something in violation of law, law schools only remedy is to file suit as opposed to protest?"

Answer: "ONLY REMEDY?" I have far more respect for law professors'skills at analysis and formal advocacy , which are superior to those of ordinary people, than I have for their political opinions which are NOT superior to those of ordinary people. "Law Schools" AS LAW SCHOOLS (read, "faculties") politically protesting in support of your favored cause this year could be advocating against your favored cause next year. Law professors individually should of course be encouraged to immerse themselves not only in specific advocacy (as I have recommended,) but also, individually, in their own political causes, whatever they may be. Law SCHOOLS as institutions have no business there.
11.6.2006 3:37pm
Houston Lawyer:
The military also discriminates based upon sex. There are a number of positions in the military that are not available to women. Why hasn't anyone started a boycott based upon that?
11.6.2006 3:39pm
whit:
Houston lawyer,

you haven't seen the hordes of "DRAFT WOMEN NOW" "WOMEN SHOULD BE SUBJECT TO THE DRAFT TOO!" "WE WANT THE RIGHT TO BE FORCED TO REGISTER FOR THE DRAFT TOO" marchers outside your door?

they are everywhere. it's been the cause celebre at Ms. for at least a decade

:)
11.6.2006 3:47pm
Mark Field (mail):
There's another historical example that may be worth recalling here. During the Civil War, both sides debated the issue of arming black troops. The South ultimately decided not to do so, the North decided that doing so was essential for victory.

Let's assume the North was right in its judgment and that its previous policy of whites-only actually impeded the war effort. Suppose now that the current military policy is actually harmful to our armed forces and reduces our chances of victory (define that however you want). With these assumptions in place, the Oregon Bar seems very modest in its response.

The larger problem with Prof. Volokh's argument seems to me that it's over-inclusive. He already gave the example of WWII and black soldiers, but the same argument could have been extended to postpone integration pending the Cold War or even today. Black soldiers might wait forever under such a policy. In fact, the argument was actually made that the Civil Rights movement hampered US foreign policy vis a vis the Soviet Union. I take it nobody today thinks that we should have postponed integration or the Civil Rights Act until after the fall of the Berlin Wall.

It's always possible to identify some larger good and claim that the protest will interfere with it. If we took this seriously, we'd never protest anything but the greatest possible injustice, and then only if nobody claimed that this injustice actually enabled some even greater good.

It's rarely possible to claim with moral certainty that not protesting will facilitate some greater good. Absent such evidence, "perspective" suggests to me that we should push the correct moral result to the extent of our own capacity to do so.
11.6.2006 4:04pm
Elliot Reed:
I agree that the enormity of the Axis's actions made the good the military did in the 1940s far exceed the evil of race segregation that it engaged in. That's why it would have been wrong to block recruiting: It would have been interfering (admittedly only symbolically) with the fight against a great evil, in the course of (only symbolically) standing up against a far lesser evil.
You seem to be saying that the problem with this particular form of expression is that it constitutes symbolic interference with recruiting. But why is there an ethical difference between this type of expression and other types of expression that convey the same message? Both have the same message; both have the same impact on recruiting - almost nothing, at most. The distinction seems not to be grounded in a difference. Or do you think all criticism of the military's policy is improper?
11.6.2006 4:08pm
Elliot Reed:
Mark - if I understand the professor's argument correctly, he seems to be endorsing the following principle:

If action X to correct evil Y would interfere (even symbolically) with the elimination of evil Z, and Z is more evil than Y, do not perform Y.

This principle is pretty clearly overinclusive, since we also have the supplementary premises:

Using the National Guard to enforce compliance with Brown would (marginally) interfere with defeating the Soviets in the Cold War (because our ability to respond to Soviet attack is marginally lessened).

Southern resistance to Brown is less evil than Soviet totalitarianism.

Therefore, do not use the National Guard to integrate schools in the south.
11.6.2006 4:22pm
Sam Heldman (mail):
Let's say that Magazine A refuses to run the military's ads. Magazine B runs the ads, with an equally-large editorial saying "We honor those who serve in the military, but think that the military's discrimination is absolutely deplorable." To the extent that Prof. Volokh's argument has any tendency to suggest that Magazine A is acting inappropriately, it equally well tends to suggest that Magazine B is behaving inappropriately. Both magazines are, a tiny little bit, disapproving of the military. In fact, Magazine B may be "worse" under Prof V's analysis, because people will actually read and notice Magazine B's disapproval, and therefore think worse of the military, while A's will be unnoticed except by those who know what went on behind the scenes. The upshot? One should never criticize the military, overtly or symbolically. For that matter, one should never criticize the President! After all, keep it in perspective - he does so much for us!
11.6.2006 4:53pm
Mark Field (mail):
Elliott, that's the way I understood it also.
11.6.2006 4:54pm
Chumund:
I can't make sense of Professor Volokh's argument. Is he suggesting that we can't do anything to express our condemnation of some practice of an institution until we are willing to condemn the very existence of an institution? That makes no sense to me.

Consider this hypothetical: a university adopts a policy a particular alum doesn't like (say, eliminating the football program). The alum sends a letter to the university, explaining that as a symbolic gesture of protest, he will no longer make his annual $50 contribution to the alumni fund until the university changes this policy.

Has this alum lost "perspective"? Does he have to believe the "badness" of the university as a whole outweighs its "goodness" before he can engage in such a protest?

I don't think so. In fact, precisely because the alum knows his contribution is relatively minor, he also knows that its withdrawal does not threaten the existence of the university, and the university knows this too. So, there is no reason to assume, as Professor Volokh seems to be urging, that this form of protest necessarily communicates the message that in this alum's view, the university has become a net force for evil in the world.
11.6.2006 5:10pm
PDXLawyer (mail):
I'm proud to be a lawyer. I'm proud to be an Oregonian. But, I'm ashamed to be a member of the Oregon State Bar.

The problem, essentially, is that the Bar "leadership" feels that they have a moral obligation to teach their lessers (me, and the US Congress) about right and wrong. I guess revisions to the UCC and the like just aren't interesting enough to hold their attention. They (and the justices of the Oregon Supreme Court in their role regulating the bar) have a tendency to moral certitude which is embarrassing.
11.6.2006 5:56pm
gerry (mail):
These lawyerly arguments could parse good into evil and evil into good, (and cause mild headache, as well), but don't seem to address the basic question of law schools and bar associations as institutions banning communication within their organizations by otherwise respected individuals or agencies for reasons of subjective perceptions of political incorrectness, (however heartfelt). What next? How do we determine in advance what otherwise lawful speech or association is or is not to be permitted by the Oregon Bar or by the faculty of the University of Pennsylvania Law School?

Also, in the bans and boycotts of speech and association imposed by both the Oregon Bar and the boycotting law school faculties, their direct effect is to thwart, (render impossible?) the recruitment of JAG lawyers who would be the first resort of a gay soldier in need of competent legal help. Does that effect---supposedly in the interest of gay rights---make sense?
11.6.2006 5:59pm
Russ (mail):
PDXLawyer has hit the nail on the head.

Shouldn't the Oregon Bar have enough faith in its members to let them make the moral judgement for themselves?
11.6.2006 6:01pm
Chumund:
gerry,

The answer to your parenthetical question is "no" (not recruiting on a law school campus or not advertising in a bar journal will not in fact make it impossible for the military to recruit lawyers from that law school).
11.6.2006 6:24pm
Mark F. (mail):
<i>My point is that, given that the military is an institution that is vital for our national survival -- incidentally, today against forces that would do far more to undermine gay rights than the military's Don't Ask Don't Tell policy does</i>

Yes, professor, the U.S. military is currently defending us against the Iraqi insurgency, which threatens to invade the U.S. and install an Islamic theocracy. Their current invasion plans, involving a couple of row boats, a few homemade bombs and some Molotov cocktails, are frightful.

Also, we can be glad the military defended us against the North Vietnamese invasion armada.
11.6.2006 6:51pm
gerry (mail):
Chumud:
(1) and separate but equal equals equal
(2) if it will "not in fact make it impossible", how about "much more difficult". how about "will significantly discourage?" What should a young law student understand about being reruited for a law career in a firm banned by his faculty for political reasons?
(3) what do you think of PDX's point about "certitude?" Shouldn't all lawyers be embarrassed by legal organizations suffering from "certitude?"
(4) would you agree with my point (above) that a direct case on behalf of a living plaintiff, well prepared and fully presented, against the anti-gay discrimination implicit in DADT, should be an easy winner, thus mooting all of this theoretical discussion?
11.6.2006 7:08pm
Chumund:
gerry,

Whether or not their stance is right in principle, I don't think law school administrators and bar associations can have much of an influence in practice on military recruiting. Law students interested in the military are not likely to put significant weight on the contrary opinions of these folks, and information about how to apply to the various JAG programs for law students is just a quick google away.
11.6.2006 8:23pm
Chumund:
gerry,

By the way, I'm not sure if you are aware of this, but very few government and public interest employers do much recruiting on campus. So, law students interested in such employers are already accustomed to getting the necessary information on their own.
11.6.2006 8:26pm
SeaLawyer:

Yes, professor, the U.S. military is currently defending us against the Iraqi insurgency, which threatens to invade the U.S. and install an Islamic theocracy. Their current invasion plans, involving a couple of row boats, a few homemade bombs and some Molotov cocktails, are frightful.

Also, we can be glad the military defended us against the North Vietnamese invasion armada.


Mark,
Just because you can't understand the threats to our country and the world does not mean they are not there.
11.6.2006 9:16pm
Cornellian (mail):
I seem to recall that ABA Journal publishes recruiting ads for the military. I wonder whether that's because no one has complained or because they've made a conscious decision to continue to accept such ads, despite the discrimination issue.
11.6.2006 9:20pm
DG:
I'm confused by Prof. Volokh's argument as well. Should the law schools (or Bar Journals) ever use this same calculation when deciding whether to enforce their non-discrimination policies against other employers? Or is the military alone entitled to this balancing test?

If, say, the State Department violates the non-discrimination policy, should the schools give it an exemption? Would barring their recruiters from campus send the message that preventing discrimination is more valuable than everything our diplomatic corps does?

What about a public interest law firm? What about a BigLaw with a really great pro bono policy? Prof. Volokh tells us:

Yup, that's right, the military, it's just another bigoted law firm. Jones &Smith, the U.S. Army, same difference. That's what the logic of antidiscrimination-above-all tells us.


Of course they're not the same. But what is the principle that you're using to distinguish between the two, and how does that principle apply to other situations?
11.7.2006 1:02am
whit:
Call me crazy, but how about letting individual lawyers make these decisions, about which ads to read, which recruiters to spend their time on, which employers to apply to, instead of having law schools, bar journals, etc. be Big Daddy and decide which companies/govt agencies/etc. meet their criteria for inclusion in their hallowed pages/halls?

Choice... it's what's for dinner.
11.7.2006 1:12am
Anonymous Reader:
For those who claim that all the military has to do is give the "word" and Congressional laws will change, I say BS. Maybe some of you are not as informed as you should probably be about what they can and cannot say in their official capacity as a military member. If that was the case, they could get together as a unit and complain about why their pay is so low or why some members have to live with govt assistance (food stamps, etc).

The correct target is Congress. They make the laws, the military follows them, no matter how much they agree or disagree with them. That's the beauty of an all volunteer force; if they don't like it, they can get out at the end of their contract.

I believe this is just an underhanded way of protesting the military. To say it's the military's fault is akin to looking that newly graduated Private or Private First Class and complaining that their the reason why DADT has been implemented. But you may argue, the Generals have a say. And again, I'd point you to the above paragraph. The Generals may have a bit more access or influence, but they don't have no more say that the lowliest of Privates.

Anonymous Reader
11.7.2006 7:18am
gerry (mail):
Anonymous reader has nailed it. This whole issue is a raw anti-military political boondoggle by the Certitude Lobby. The last thing this society needs is a military overriding Congress and making its own political rules, and oddly, the selfrighteous law faculties, and some misguided Oregon Bar members, seem to be thumping for just that, while the faculties continue muzzling the speech of JAG lawyers on campus, and Oregon Bar bans speech by its own National Guard JAG, until they do! WOW ! This has nothing to do with gay rights and everything to do with power plays against our military.

But the case, THE CASE, for challenging DADT with a proper client and proper evidence, seems to me to be an easy one. Isn't that what lawyers are supposed to do? Why aren't any of you people doing it?
11.7.2006 8:27am
Duncan Frissell (mail):
Eugene writes:
Equal treatment without regard to sexual orientation may be important.
Elliot Reed writes:
If you believe (correctly) that anti-gay animus is morally wrong and that the military's policy is, in fact, motivated by anti-gay animus (as the Oregon State Bar probably does) then you asking for an extraordinary accommodation.4
But if it isn't and you don't then it's neither important nor extraordinary.

Since this is a libertarian blog, and most libertarians favor invidious discrimination, the blog shouldn't care either.
11.7.2006 10:51am
Gojuplyr (mail):
As a lay person, it seems that since Congress set the policy then Congress should be the target. Does the Bar's action reflect animus towards the military? Or a lack of courage in standing up to an entity (Congress) capable of counteraction? Or both?

As a side - and possibly unrelated - note. If the Bar is so opposed to discriminatory policy and actions - why has it not similarly opposed Congress' exempting itself from civil rights laws. It is at present legal for a Congressperson to hire and fire based on race, religion, sex and/or sexual orientation.

as stated this is from a non-legally trained perspective.
11.7.2006 1:36pm
whit:
as an analogy, a lot of people (drug users and drug legalization advocates and drug decrim advocates (i fall in the latter camp not the former :) ) always blame cops for drug laws, drug enforcement etc.

cops don;'t make (stupid imo) drug laws any more than the military makes the above mentioned policy.

being in the military, or in law enforcement often means enforcing policy you don't agree with, laws you think are bogus, and even defending people whom you may personally despise, or taking enforcement actions against people you may like and/or agree with in motives or actions
11.7.2006 1:42pm
anonVCfan:
State bar associations are just smarmy anyway. I wish they'd concentrate on figuring out how to help the profession and improve the quality of their lawyers, rather than debating about crap like this.

If I were a member of the Oregon bar, I'd be more upset that my fees were being spent debating the bar association's policy on the military, when there's no need for the bar association to have any policy whatsoever in that area. Should they weigh in on the war in Iraq, too? What's the state bar association's stance on the current interest rate? What do they think of reparations or universal health care? Self-important wastes of space, I say.
11.8.2006 8:45am
PGofHSM (mail) (www):
gerry,

Read Log Cabin Republicans v. Rumsfeld, Cook v. Rumsfeld and Loomis v. U.S. Then stop whining about how lawyers aren't bringing challenges to DADT in the courts. All of the ones I listed are post-Lawrence challenges to DADT. Military discrimination has been continuously challenged in the courts every time there seems to be any shift in the constitutional law that would form a basis for such challenges, and these challenges often are supported by amicus briefs by law school faculty.

Given Sealawyer's terror of GAY SEX! among servicemembers, I wonder that he isn't out protesting the 1999 FORSCOM regulation that says if any servicemember is suspected of, or openly declares, homosexuality when he could possibly be doing so in order to avoid active duty deployment, he is to be sent into combat anyway and the homosexuality issue will be deferred until his return. If the possibility of a gay man's seeing a straight man's butt, or two gay men's getting it on, is so awful to the supporters of DADT, they must be figuring that homosexuals about to be sent into combat are focused on the possibility of imminent death and not thinking about booty.
11.10.2006 3:42am