The Volokh Conspiracy - 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).

	[Eugene Volokh, November 6, 2006 at 11:32am] Trackbacks 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).