Author Archive | Dale Carpenter

Balkin on Solomon:

Jack Balkin has an illuminating post on the Solomon Amendment decision, Rumsfeld v. FAIR.

Balkin explains why he was a “reluctant” supporter of the litigation against the Solomon Amendment:

…I believed that, if successful, these lawsuits might cause problems for other areas of antidiscrimination law, in particular, in the area of Title VI and Title IX law. The reason is that Title VI and Title IX impose antidiscrimination obligations on schools that receive federal funds. If the FAIR and Yale plaintiffs had first amendment rights to be excused from the Solomon Amendment, racist and sexist institutions might claim that they were entitled to be excused from Title VI and Title IX obligations. There are ways to distinguish the two situations, but it requires some fairly fancy footwork and it might cause even more problems down the road. Therefore, when I joined the Yale suit as a platinff, my preference was for a much narrower theory of the case, one that would pose no danger of undermining federal antidiscrimination laws.

I think this helps explain why FAIR lost, and lost so badly, in the Supreme Court. There was simply no constituency on the Court, and precious little constituency off the Court, for the sorts of broad speech and associational rights being pressed by the litigants in the context in which they pressed it. Aside from the interesting doctrinal issues raised, neither conservatives nor liberals liked the claims. Conservatives defer to the perceived needs of the military and to Congress’s “judgment” about those needs, even though that judgment was largely a fiction in this case. (There was no evidence that the military needed access to law school buildings in order to recruit a sufficient number or quality of law students to provide legal services. Even the Defense Department initially opposed the [...]

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Quick reactions to the Solomon Amendment case:

Several quick reactions to today’s unanimous decision by Chief Justice Roberts in Rumsfeld v. FAIR, the Solomon Amendment case:

(1) The Court side-stepped the thorny and under-theorized question of government power to give money to an individual or institution on the condition that it relinquish the exercise of a constitutional right. This “unconstitutional conditions” doctrine holds that government may not so condition a benefit it confers, even though there is no independent “right” to the benefit itself. Thus, the federal government could decide not to have a food-stamp program. But it could not distribute food stamps (an elective government benefit) only to people who agree not to criticize the war in Iraq (which they have a constitutional right to do). On the other hand, the government can give money to people to send their children to public schools (an elective government benefit) but not to private schools (which they have a constitutional right to attend). The doctrine is a mess — and still is after today.

Much of the popular reaction to Rumsfeld v. FAIR prior to the decision suggested that this part of the case was easy: “If you don’t want to let military recruiters on your campus, don’t take the money. If you want the money, let the military recruit.” But this part of the case was never as easy as that reaction suggested.

While the Court acknowledged the unconstitutional-conditions issue, and the tensions in the doctrine (slip op. at 9), it didn’t address the issue because it decided there was no meritorious underlying First Amendment freedom being exercised by schools. The opinion has nothing valuable to say about this huge area of potential future constitutional litigation, an area that has special significance in an era of annual federal budgets approaching $3 trillion and a Congress eager [...]

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Are Senior Judges Unconstitutional?:

This is the provocative question addressed by co-authors Professor David Stras (a colleague of mine at Minnesota) and Ryan Scott (a former student of mine, now clerking for Judge Michael McConnell). It is available here. While I’m not entirely on board for their analysis, attention should be paid to these two rising young stars of the legal academy, who’ve been specializing lately in institutional reform proposals for the federal courts.

Here’s a summary from the authors:

With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems to suggest that senior status represents a separate constitutional office, requiring reappointment, even though senior judges nominally “retain” judicial office under federal law.

In the first scholarly article addressing the constitutionality of senior judges, the authors examine two general constitutional objections: (1) whether the requirement that senior judges be designated and assigned by another federal judge before performing any judicial work violates the tenure protection of Article III; and (2) whether allowing judges to elect senior status, without a second intervening appointment, violates the Appointments Clause. They also examine whether two specific types of senior judges – the “bureaucratic senior judge” who performs only administrative duties and the “itinerant senior judge” who sits exclusively on courts outside his home district or circuit –

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The Simpsons v. The First Amendment:

Quick, without looking or reading on, how many of the liberties protected by the First Amendment can you name?

If you can name more than one, you’re among the elite in constitutional literacy in the United States.

Says the AP:

Americans apparently know more about “The Simpsons” than they do about the First Amendment.

Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey.

The study by the new McCormick Tribune Freedom Museum found that 22 percent of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms.

The survey also found that more Americans could name the three “American Idol” judges than could name three rights guaranteed by the First Amendment.

These results are amusing, perhaps disappointing, but not terribly surprising. I wonder how many lawyers could name the freedoms beyond speech and religion. And the survey doesn’t really tell us much about the state of practical knowledge in the country. My sense is that most Americans know they have some sort of right to speak their minds and that even people who disagree with them do, too. They also probably understand that they and their neighbors can worship God or not, more or less in their own way. Their grasp of the Establishment Clause is probably less firm, but in that they are joined by the Supreme Court. The other three freedoms listed in the First Amendment (press, assembly, and petition) are historically important and could be valuable in theory, but have played little role independent [...]

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More Details on the Financial Cost of DADT:

I’ve now gone through the recent University of California study of “Don’t Ask, Don’t Tell,” which estimates the costs of the policy in its first ten years (1994 through 2003). The commission that produced the report includes several experts in military and national security policy. Notable among them are former Secretary of Defense William Perry under President Clinton; former Assistant Secretary of Defense Lawrence Korb under President Reagan; retired Admiral John D. Hutson; Professors Donald Campbell and Kathleen Campbell of the U.S. Military Academy at West Point; and Professors Frank Barrett and Mark Eitelberg of the Naval Postgraduate School. Experts in economics, cost accounting, management control systems, and other fields assisted the commission. The Williams Project of the UCLA Law School, which studies gay legal issues and works for gay equality, loaned out the time of Dr. Gary Gates, who provided extensive statistical and conceptual analysis as Senior Project Consultant. While some of those who produced the study may personally oppose DADT, the study itself cannot be dismissed on this basis. It is a serious effort to weigh some of the financial consequences of DADT.

The report breaks down the financial cost of firing service members for homosexuality under DADT into four discrete categories: (1) recruiting costs for enlisted service members; (2) training costs for enlisted service members; (3) training costs for officers; and (4) separation travel costs. Let’s take a look at each of these:

(1) Recruiting costs for enlisted service members fired for homosexuality (1994-2003): $79.2 million

The military spends a lot of money to recruit. Some of this money is spent to recruit service members who are eventually fired for homosexuality. In a February 2005 report tellingly entitled “Financial Costs and Loss of Critical Skills Due to DOD’s Homosexual Conduct Policy Cannot Be Completely Estimated,” the congressional [...]

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The Financial Cost of “Don’t Ask, Don’t Tell”:

Under “Don’t Ask, Don’t Tell,” more than 10,000 Americans serving the country in the military have been expelled for homosexuality. A new study sponsored by the University of California has found that in the period from 1994 to 2003, the cost of discharging and replacing gay service members was at least $363.8 million. That figure, which the researchers say is a low-ball estimate, is 91% higher than the estimate released by the General Accounting Office a year ago.

I’ll look through the report in detail and report more later. In the meantime it can be found at [...]

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A Very Volokh Valentine:

Reading a biography of Alexander the Great (Agnes Savill, Alexander the Great and His Time), I came across the following:

The famous Theban band [of male lovers] was renowned for its heroism; the lovers swore to live or die together and were invincible in war. To gain the admiration of his friend, a young man attempted deeds of valour; the praise of his companion was to him more precious than that of any relative or superior officer.

Not quite invincible, it seems. At the battle of Chaeronea on August 2, 338 B.C., the Greeks were arrayed against the forces of Philip of Macedon, Alexander’s father. The Greeks’ very independence was at stake, and both Theban and Athenian armies allied to defend it against Macedon. Key to the Theban military was the Theban Sacred Band, the group of 150 pairs of same-sex lovers Savill refers to above. For decades they had been considered the elite of the Theban army. Now they faced the better trained and more experienced Macedonian forces under Alexander’s command. In hard-fought battle, the Sacred Band was decimated. Here Savill picks up the narrative again:

When Philip saw the bodies of the fallen lovers after the battle of Chaeronea, he exclaimed with tears: “Perish the man who suspects that these men ever did or suffered anything base.”

It is an extraordinary moment: an enemy commander paying tearful tribute to the bravery of an opposing forced comprised of a group of homosexual lovers. Not for Philip, it seems, the peculiar modern American notion that homosexuality is incompatible with military service. Philip is defending the Theban Band against those — and there were such people and regions even in ancient Greece — who would condemn them as vile or disgusting for their very love. In fact, this is among the [...]

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Thanks much to Eugene and all the VC for letting me join in.

I plan to post mostly on gay legal/political/cultural issues, especially developments on the gay-marriage front. Believe it or not, I have a few other interests and I’ll explore them on occasion. Overall, I don’t expect to contribute nearly as often as the most prolific bloggers here. I have no idea how they do it so responsibly and hold down day jobs.

I think I’ll start out with a presumption in favor of allowing comments to my posts, since part of the value of this for me will be to try out ideas I haven’t fully thought through. If I find that reviewing and responding to the comments becomes too time-consuming (or not very constructive) I might reverse the presumption.

Mostly, I’m just delighted to be here with you all. [...]

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The Traditionalist Case – Last Thoughts:

Thanks again to Eugene for letting me in the forum this week.

In the end it comes down to this: Given that gay families exist, and are not going to be eliminated or converted by any means acceptable to the American people, what is to be done with them? Is it better for society that they be shunted aside, marginalized, ostracized, made to feel alien to traditional values and institutions? Or is it better that they be included in the fabric of American life, including the most important social institution we have for encouraging, recognizing, and reinforcing loving families? I can see why a sexual liberationist, or a radical of any stripe, might say, “Keep them out.” I have never been able to understand how a conservative could say that.

In the end I doubt this issue will be decided on the basis of debaterish points and arguments. It will be decided on the basis of the lessons we tend to draw from the real-world experiences we have and the people we know. What I have tried to do is outline a different way of thinking about gay marriage that might allow the thoughtful traditionalist conservative to reconcile his innate and healthy suspicion of change with his insight that marriage really is good for people and their families.

Analogies can obfuscate, but in their own way they can distill a matter to its essence. In her last post two weeks ago, Maggie described the issue of gay marriage by use of a vivid analogy that I will never get out of my mind:

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened– stumbling, loaded down, tired; enfeebled– the conditions of the

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The Traditionalist Case – Getting From Here to There:

The traditionalist reformer must not simply be satisfied that the reform is headed in the right direction, but must also be satisfied with the pace of that reform and with how the reform is brought about. The process considerations demand that any reform be based not simply on reasoned judgment, but on reasoned judgment informed by actual lived experience. Moreover, the reform must proceed slowly and incrementally to allow a consensus to develop in favor of the reform and to gauge what effects the effort is actually having.

This Burkean process of “a slow but well-sustained progress” is already very much in motion toward the ultimate destination of gay marriage.

1. The incremental path to gay marriage: the steps taken

Over the past 50 years or so a remarkable development has occurred in America: the increasing normalization and acceptance of gay life. This process has advanced incrementally and its vector has been toward the formation and growth of gay families. It is what makes gay marriage for the first time thinkable.

You can see this phenomenon in numerous legal and social changes. First, laws criminalizing gay sex were gradually either legislatively or judicially wiped away in almost every state until the Supreme Court invalidated the few remaining such laws in Lawrence v. Texas. At the same time gay communities were forming in neighborhoods in the large cities with a burgeoning culture of bars, organizations, and newspapers. Professional organizations like the APA removed homosexuality from the list of mental disorders and declared that efforts to “cure” or convert gays were unethical. Homosexuals began emerging from the closet in large numbers, helping to dispel myths about gays, moving out of urban centers and into the suburbs. And they began looking for more in life than fleeting and furtive sexual encounters. This [...]

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The Traditionalist Case – What Would Burke Do?:

For many liberals, gay marriage is nowadays an easy case. It eliminates discrimination against a class of people. It signals tolerance for diverse families. It eliminates an archaic distinction. If the benefits seem to outweigh the harms, as they do, let’s go for it. And the sooner the better.

For a principled conservative, embracing gay marriage is not nearly so easy. A venerable principle of conservatism, rooted in the work of Edmund Burke, is that we should respect tradition and history. This strain of conservatism prefers stability to change, continuity to experiment, and the tried to the untried. Burke was the father of modern traditionalist conservatism. Others were more analytically rigorous (Hayek and Oakeshott) or more directly influential on American political conservatism (Kirk and Buckley). But Burke was the first among the modern writers to lay out the basic principles and to do so in an almost poetic way.

Understanding Burke’s philosophy is key to understanding a traditionalist conservative’s take on gay marriage. Two aspects of Burke’s thought – his faith in the possibility of slow progress and his willingness to depart from an original design, even one based on ancient values – are especially relevant.

1. Traditionalist conservatism and reform

Burke has often been identified as a defender of existing practices and traditions against innovation. There is much in Burke’s writings and speeches to support this view. He wrote in Reflections on the Revolution in France:

[I]nstead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own

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Response to commentators – Day 4:

I’m afraid I didn’t have time to read much of the commentary today. I do plan to go back and skim the commentary from this week later on. Since this will be my last commentary response, let me encourage you to send any burning questions I haven’t answered to me directly at

I do have a couple of quick responses.

First, thanks to the commentator who pointed out that all this talk about gays and gay couples as “non-procreative” or “sterile” is actually a bit misleading. Many gay people have biological children through various means. It’s especially common among lesbians, who have an easier time with artificial insemination than gay men do with hiring surrogates. Plus, of course, gay people raise their biological children from prior marriages. They will be raising these children no matter what we decide about gay marriage.

Second, a commentator brought up an essay by Stanley Kurtz purporting to show that “gay marriage” has led to a number of social pathologies in Scandinavia, including more out-of-wedlock births. Stanley Kurtz, “The End of Marriage in Scandinavia,” Weekly Standard (February 2, 2004). This thesis has been carefully rebutted in M. V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriages? Evidence From Scandinavia and the Netherlands, Discussion Paper (Council on Contemporary Families and Institute for Gay and Lesbian Studies, July 2004), and in William N. Eskridge, Darren R. Spedale, and Hans Ytterberg, “Nordic Bliss? Scandinavian Registered Partnerships and the Same-Sex Marriage Debate,” Issues in Legal Scholarship (available at [...]

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