SALT Launches List Serve on LGBT Issues at Religiously-Affiliated Law Schools

SALT member and Seton Hall law professor Marc Poirier announces Constellation!

 
A project of the SALT LGBT Committee, Constellation is a moderated list serve intended to provide a forum for discussing the concerns of LGBT faculty, administrators, and staff at religiously-affiliated law schools.  We are open to all permanent faculty, administrators, and staff at U.S. law schools, regardless of a participant’s sexual orientation and regardless of the institutional structure of a particular law school.   Constellation will facilitate general discussion, communication of news and concerns, and the consideration of responses to specific and general concerns.   Our goals are to generate a shared sense of support and possibility, to support networking, and to facilitate productive general and institution-specific conversations and resolutions. Varying perspectives are welcome.  Civility is expected.  Although membership is limited, confidentiality cannot be assured.

Constellation will begin operation during the week of January 11.  You may email constellation@umn.edu and request subscription.  Marc R. Poirier, Moderator, Constellation
 

Ending Discrimination in the Military—Repealing Don’t Ask Don’t Tell

August 2, 2010 SALT sends letter to law school deans urging them to act within the limits of the law to fortify the principles of anti-discrimination and to show unconditional support for LGBT students during this recruiting season while DADT remains in force.  Read the text of the letter. 

May 10, 2010 SALT Sends Letter to Speaker of the House Nancy Pelosi urging her to schedule a vote on repeal of Don't Ask Don't Tell when the House considers the Department of Defense fiscal year 2011 authorization bill.  

May, 2010  AALS sends letter to Congressional leaders urging repeal of Don't Ask Don't Tell.  Read the AALS letter to Speaker of the House Nancy Pelosi.  Read the AALS letter to Senator Carl Levin. 

April, 2010: ABA President Carolyn B. Lamm sends letter to Congressional leaders urging repeal of Don't Ask Don't Tell.  Read the ABA letter. 

February 11, 2010 SALT Sends Senator Carl Levin, Chair of Armed Services Committee, letter applauding hearings and asking to suspend all DADT investigations pending repeal. 

The Military Readiness Enhancement Act (H.R. 1283)

The Problem
•    “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” (DADT), passed by Congress in 1993, mandates the discharge of openly gay, lesbian, or bisexual service members. Under the law, at least one individual per day on average is fired because they are gay or lesbian. (Based on SLDN calculations of Pentagon data, 1993-2007) Almost 13,000 service members have been discharged since 1994.  In addition to discriminating based on sexual orientation, the law has been widely recognized to interfere with military readiness, undermine national security, and cost the taxpayer over a half a billion dollars.

August 2010 Update: We are very close to finally repealing this law.  In May 2010, the House passed the National Defense Authorization Act (NDAA) which contained a provision to repeal Don’t Ask Don’t Tell.  In September, the full Senate will vote on its version of the NDAA which contains identical repeal language.  But even if the bill were to pass the Senate and be signed into law by the President, repeal is not final until additional steps are taken.  The current legislative language requires the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff to certify that repeal of Don’t Ask Don’t Tell will not affect military effectiveness, unit cohesion, and morale, and that all necessary regulations to implement repeal are in place.  Proponents of repeal anticipate that the certification process will be completed by the first quarter of 2011.


What about Executive Action?
•    During his campaign, President Obama pledged to seek the repeal of Don’t Ask Don’t Tell and promised to sign any bill that did so.
•    Despite encouragement from advocacy groups, President Obama has declined to use executive action to stop investigations and discharges pending MREA’s passage, claiming he lacks the authority to do so.  To learn more about executive authority to end Don’t Ask Don’t Tell go to http://www.palmcenter.org/publications/dadt/How+to+End+%22Don%27t+Ask%2C+Don%27t+Tell%22
•    In July 2009, Secretary of State Robert Gates stated that he was looking for a “more humane way to comply with the law until the law gets changed.”  To view Gates’ statement go to http://thinkprogress.org/2009/07/17/gates-dadt-explanation/
•    During Admiral Mullen’s confirmation hearings on Sept. 15, 2009, Senator Udall (D.CO) asked Admiral Mullen to respond in writing to several questions regarding repeal of Don’t Ask Don’t Tell.  To read the questions and Admiral Mullen’s responses go to http://www.sldn.org/news/archives/statement-on-adm-mullens-testimony-this-morning/

Some Background: In the early 1970s, law schools began to require employers that wanted to recruit on campus to pledge that they did not discriminate based on religion, race, sex, and national origin. This technique proved to be an effective way to move law firms to commit to a policy of non-discrimination. Starting in the late 1970s, some law schools expanded this required non-discrimination pledge to include sexual orientation. This prevented the Central Intelligence Agency (CIA) and other government agencies that overtly discriminated on the basis of sexual orientation from coming on campus to recruit.

By the early 1990s, the CIA had ended its policy of discrimination and so was permitted on campuses. But the military continued to discriminate and was kept away. As a result, law schools' policy began to be perceived as anti-military rather than anti-discrimination. Because of this perception, in 1995, Congress passed the Solomon Amendment to put pressure on law schools to grant access to military recruiters.

Under the Solomon Amendment, if a law school denied equal access to military recruiters, the entire university would lose federal funding from the Department of Defense and other federal agencies.

SALT and a coalition of law schools (the Forum for Academic and Institutional Rights - or "FAIR") sued the Pentagon, arguing that the Solomon Amendment violated schools' First Amendment rights.

In 2006, a unanimous Supreme Court rejected SALT's challenge to the Solomon Amendment, which requires a university that receives federal funds to provide military recruiters with the same access to students and facilities that it provides to other potential employers of their students. Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006). In an opinion authored by Chief Justice Roberts, the Court rejected SALT's arguments that the Solomon Amendment violated law schools' First Amendment rights; noted that Congress has "broad and sweeping" power to provide for the national defense; and emphasized that courts must pay substantial deference to Congress' decisions on military matters.

As a result of this decision, most law schools allow military recruiters on campus even though the law schools oppose the military's ban on open service by gays, lesbians and bisexuals. The students at some schools have created “Coalitions for Equality,” and encouraged students, faculty and staff to join these Coalitions to take a united stand against discrimination. (See LGBT letter from law school students, March 15, 2006.) Only three law schools have continued to prevent the military to recruit on their campuses based on its overt discrimination: New York Law School, William Mitchell College of Law, and Vermont Law School. SALT honored these schools at its annual dinner in 2006. Listen to the podcast from the 2007 AALS SOGII panel on law schools’ responses to Rumsfeld v. FAIR.

The military will continue to discriminate against gays, lesbians and bisexuals until a court declares that policy unconstitutional, or until Congress repeals the law that codified that policy, 10 U.S.C. § 654.

In 2006, three federal district courts dismissed challenges to the military's gay ban. Cook v. Rumsfeld, 429 F. Supp. 2d 385 (D. Mass. 2006); Witt v. Air Force, 444 F. Supp. 2d 1138 (W.D. Wash. 2006); Log Cabin Republicans v. United States, No. CV 04-8425 (C.D. Cal. Mar. 21, 2006). Legislation that would repeal the ban, the Military Readiness Enhancement Act (H.R. 1246), has been introduced in Congress.


Law students and law faculty can play an important role with respect to this legislation. Because of the Supreme Court's 2006 Rumsfeld v. FAIR decision, the issue of gays in the military will continue to be visible every semester as military recruiters visit law schools. Law faculties and students can use these recruiting visits to organize political action and join the political movement to lift the military's gay ban.

Law faculty members and students who want to engage on this issue should work to convince their members of Congress to co-sponsor the Military Readiness Enhancement Act. They can set up meetings with their member of Congress, and organize letter-writing campaigns. They can also convince their local city council or state legislature to adopt a resolution urging Congress to lift the ban.


Up until now, law school protests against military recruiters have had little effect outside the walls of law schools. But if law faculties and students allow military recruiting visits to be the impetus for engaged political action, they can play an important role in not just protesting the gay ban, but convincing Congress to end it. Pursuing this kind of advocacy can be a constructive response to a law school's obligation to take Amelioration under AALS guidelines.  For a list of amelioration practices, see Solomonresponse.org.

In May, the Defense Department proposed new regulations to implement the Solomon Amendment, a statute that requires educational institutions that receive federal funds to permit military recruiters on campus. The Defense Department is revising these regulations in light of the Supreme Court’s decision in Rumsfeld v. FAIR (2006), which upheld the Solomon Amendment.

SALT joined FAIR (the Forum for Academic and Institutional Rights) in objecting to three parts of the new regulations.

    * First, SALT and FAIR objected to the proposed definition of equal access for military recruiters. The proposed regulation requires law schools to provide the “same access… provided to the nonmilitary recruiter receiving the most favorable access.” The SALT/FAIR letter points out that this “most favorable access” requirement could enable military recruiters to demand “whatever assistance they desire, without regard to the expense, necessary resources, or reasonableness.

    * Second, the SALT/FAIR letter objected to the provision requiring schools to enforce “time, place, and manner policies … such that the military recruiters [do not] experience an inferior … recruiting climate.” This provision threatens individuals and the school’s right to protest against military recruiters by exerting pressure on school administrations to squelch any planned demonstrations in fear of violating the “inferior climate” rule.

    * The third objectionable provision forbids schools from having policies or practices that “in effect den[y] students permission to participate, or ha[ve] prevented students from participating in [military] recruiting activities, and requires schools to aver in writing that they have no such policies. The SALT/FAIR letter expressed concern that these provisions would be interpreted to prohibit schools from expressing disagreement with the military’s discriminatory recruiting policies, and from advocating these views to students.


To read the complete SALT/FAIR letter, click here.

The urgency of lifting the gay ban was heightened when the Second Circuit Court of Appeals issued its Burt v. Rumsfeld (2007) decision on September 17, 2007, holding that Yale Law School can be denied certain federal funding for barring military recruiters from its campus.


THE FINAL PUSH

For the first time since its inception in 1993, the White House is committed to the repeal of Don't Ask Don't Tell.  Minutes after President Obama took the oath of office, the White House website listed repeal of the statute as an "agenda" item for the new Administration.  With President Obama's support, the 111th Congress offers the best opportunity to end this discriminatory law. Representative Ellen Tauscher will re-introduce the Military Readiness Enhancement Act, a bill that repeals Don't Ask Don't Tell and replaces it with a non-discrimination statute, in the House in mid-February. 

SALT’s Letter to President Obama: On June 19, 2009, SALT sent a letter to President Obama urging him to take a leadership role in repealing Don’t Ask Don’t Tell, a policy he admitted was repugnant during his campaign.  Download a copy of the letter.

Watch a brilliant Colbert Report broadcast from Iraq on why Don’t Ask Don’t Tell has got to go!

We need boots on the ground across the country making the campaign to repeal "Don't Ask, Don't Tell" possible.  We need to let Congress know that it is time to allow members of the military to serve regardless of sexual orientation.  We need your help.

ORGANIZE A HOME VISIT WITH YOUR SENATOR OR REPRESENTATIVE
You can effectively lobby your Congress person in his or her district office. Servicemembers Legal Defense Network provides a fact sheet you can share with your members of Congress.

LETTER WRITING CAMPAIGN
Many law schools have students from across the country. You can reach several members of Congress simply by encouraging your students to write letters.  SLDN website makes it easy to participate.  Go to the SLDN website to access your Senator and Representative, compose a letter, and send it.  Or better yet, gather the letters and hand deliver them to your Senators' or Representative's home office.

EDUCATE YOUR COMMUNITY
Many faculty, students, and staff are still ill-informed about the devastating effects of the law.  You can educate your community and motivate them to action.  SLDN has a Speaker's Bureau whose members can tell how the law personally affected them.

Please don't sit on the side lines. Congress needs to know that this is a priority. If you need more information please contact SALT board member Jackie Gardina.