The LGBT Committee is actively engaged in several aspects of anti-discrimination work, each of which is separately discussed below:
SALT Policy Paper
Columbia University's Sexuality and Gender Law Clinic students worked with SALT to compose this policy paper on strategies for LGBT individuals at religiously affiliated law schools.
SALT Joins Supreme Court Briefs
SALT historically supports efforts to eliminate prejudicial discrimination in the legal academy. Discrimination based on sexual orientation is something that occurs and is felt by students, faculty, and staff. SALT recently released a policy paper discussing discrimination that is a part of the legal academy in very real and substantive ways. SALT's efforts in adding its voice to the thoughtful briefs below pale in comparison to the suffering felt by lesbians and gays as a result of a long history of discrimination because of sexual orientation.
SALT joined in submitting the brief below to the Supreme Court in the case of Hollingsworth v. Perry, challenging the set of injuries that give rise to an Article III-qualified "direct stake," for several reasons. First, a government's Article III standing to defend its laws derives from its interest in enforcing those laws. Second, Ms. Goldberg argues the "linchpin" of the sponsors' standing claim points to California government officials failure to defend Proposition 8 as the the sponsors would like. This argument does not provide sufficient injury that Article III has long been understood to require.
SALT joined in submitting the brief below to the Supreme Court in the case of U.S. v. Windsor, challenging the Federal Defense of Marriage Act on behalf of Edie Windsor, forced to pay more than $360,000 in federal estate taxes after the death of her beloved spouse, Thea, in 2009. This brief argues that legal precedent has removed any perceived impediment to the recognition of heightened scrutiny for sexual orientation classification, and that sexual orientation classifications warrant heightened scrutiny, a position supported by the President's Justice Department. The brief further asserts gay people have suffered a long history of prejudicial discrimination and sexual orientation bears no relation to a person's ability to perform in or contribute to society, among other arguments.
Comments to the Standards Review Committee
SALT LGBT Advisers Listserv
SALT maintains a listserv of the faculty advisers to law school LGBT organizations as a way of improving communications within the LGBT community. Information important to LGBT law school students, such as upcoming events, reports, and opportunities, can be emailed to law school advisers and then passed onto students. To have your name added to the listserv or to request that information be sent via the SALT Listserv, contact either Andrew Chapin or Barbara Bernier, co-chairs of the SALT LGBT Committee.
Equal Access to Marriage
On February 23, 2011, Attorney General Eric Holder announced that the Department of Justice would not defend the Defense of Marriage Act (DOMA) in the Second Circuit. SALT celebrates Attorney General Holder's statement declaring that the Department of Justice will no longer defend the constitutionality of section 3 of the Defense of Marriage Act (DOMA). The Administration's recognition that classifications based on sexual orientation should be subject to a heightened level of scrutiny and that DOMA, as applied to legally married couples, fails to meet this standard is another step towards full equality for gay and lesbian Americans. SALT looks forward to the time when DOMA is repealed, marriage equality is a reality, and gay and lesbian families can enjoy all the benefits and protections under the law. Read the February 23, 2011 Press Release from the DOJ.
On October 25, 2010, SALT joined in an amicus brief filed with the Ninth Circuit Court of Appeals, challenging the constitutionality of Proposition 8. Download a copy of the amicus brief. At the same time, SALT issued a Statement supporting equal access to marriage.
"SALT believes that equal access to marriage is a human right, protected by the constitutional requirement of equal protection of the law and recognized as part of the fundamental right to marry. We urge that all legal barriers to marriage between two persons of the same sex be removed."
"SALT is committed to promoting the core values of the legal academy and the legal profession by ending discrimination, fostering social justice, and promoting equal protection under the law for all persons. The continued denial of the opportunity to marry and its attendant benefits to gay men and lesbians undermines these core values by denying a basic human right to individuals based solely on their sexual orientation."
"In furtherance of this understanding of the law, SALT joined as amici in the case Perry v. Coleman, filed today in the United States Court of Appeals for the Ninth Circuit, contesting the constitutionality of Proposition 8 in California. "
Download a copy of the October 25, 2010 press release.
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.
CLS v. Martinez
On March 15, 2010, SALT filed an amicus brief in the CLS v. Martinez case presently pending before the United States Supreme Court. Longtime SALT friend, Danny Greenberg, special counsel at Schulte, Roth & Zabel LLP, arranged for SALT to retain the firm as pro bono counsel. The Schulte Roth team, led by partner Mark Mandel, with senior associate Frank LaSalle as the primary author, worked with the SALT LGBT Committee and the SALT board to craft a filing that captures the unique interest that law faculty have in a non-discriminatory learning environment. Read the SALT amicus brief.
The case arose from University of California Hastings College of Law’s refusal to recognize the Christian Legal Society during the 2004-2005 academic year when CLS changed its membership criteria. CLS’s revised bylaws violated the law school’s “all comers” policy, which requires that membership be open to all students. CLS required students to sign statements that would exclude homosexuals and certain Christians who held different beliefs from joining the organization. CLS sought an exemption from the “all comers” policy based on religion, and that exemption was denied. A suit was filed in federal district court where Hastings prevailed, and then appealed to the Ninth Circuit Court of Appeals where it was affirmed.
By a 5-4 margin, the Supreme Court ruled that the Hasting’s policy of requiring all official student organizations to accept any student who sought to join was constitutional, rejecting CLS’s argument that the policy violated its right of free association. The Court did not rule that an all-comers policy such as the one at Hastings is constitutionally required, only that when such a policy was uniformly applied it was constitutional. As a result, the decision does not require every public university to adopt an all-comers policy. It also does not stand for the proposition that CLS must be barred from any presence on campuses even at schools that do. It only means that CLS can be denied the status of a recognized student group and the benefits related to that status. Justice Ginsburg wrote the opinion of the Court; there was a strong dissent by Justice Alito. Read the Supreme Court's decision in CLS vs. Martinez, issued June 28, 2010.
The case continues to be litigated. The Court remanded the case to the Ninth Circuit, stating that "the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved."
Don’t Ask, Don’t Tell: It’s Not Over Yet
On December 22, 2010, President Obama signed into law the “Don’t Ask Don’t Tell Repeal Act of 2010.” The statute neither repeals 10 U.S.C. § 654 nor prohibits discrimination based on sexual orientation in the armed forces. Instead, the Act provides for repeal of Don’t Ask Don’t Tell only after statutorily prescribed actions occur. Specifically, 10 U.S.C. § 654 will be stricken from the U.S. Code 60 days after “[t]he President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff” stating that they had considered the report of the Comprehensive Working Group; that the Department of Defense had prepared the necessary policies and regulations to implement repeal; and the implementation of necessary policies and regulations “[wa]s consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.” The statute does not provide a time frame for the certification process and explicitly states that Don’t Ask Don’t Tell remains in effect until the requirements are met. Download Jackie Gardina's April 2012 analysis of what discriminations remain in effect.
The Act is a sharp departure from the language of the Military Readiness Enhancement Act (MREA) introduced into the House and the Senate in the 111th Congress. MREA would have repealed Don’t Ask Don’t Tell immediately and replaced it with a non-discrimination provision. In May 2010, MREA had 196 co-sponsors in the House and the Senate Armed Services Committee (SASC) appeared poised to send it to the floor for an up or down vote. However, Senator Byrd, a critical and necessary vote in the SASC, requested language that would delay repeal until the Pentagon had completed its study, due December 1, 2010, and to require a certification process before repeal occurred. The non-discrimination provision was also struck from the bill during negotiations. With these changes, the SASC voted to approve the bill and send it to the full Senate as part of the National Defense Authorization Act of 2011 (NDAA). Representative Patrick Murphy, the lead sponsor of MREA on the House side, amended the House version to mirror the Senate language. On May 28, 2010, as an amendment to the NDAA, the House passed the measure. It stalled, however, in the Senate.
The Pentagon released the Comprehensive Working Group Report on November 30, 2010, which responded to many of the concerns voiced by opponents to repeal. After the report was issued, both Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, and Secretary Gates testified before the SASC that they believed Don’t Ask Don’t Tell should be repealed in 2010. In December 2010, Senators Lieberman, Collins, Gillibrand and Udall introduced the “Don’t Ask Don’t Tell Repeal Act of 2010” (S.4022) in the Senate and Representative Patrick Murphy introduced a companion bill in the House (H.R. 6520). Both bills contained identical language to the amended version of MREA discussed above. On December 15, 2010, the House passed the measure (250-175) and the Senate followed three days later (65-31). President Obama signed it into law on December 22, 2010 and, in the January, 2011 State of the Union address, noted his expectation that DADT and related matters will be interred before the end of 2011.
The Act does not ensure equality for gay and lesbian service members. Additional steps must be taken to finally end the discrimination that SALT has so long opposed. The absence of a non-discrimination provision creates the possibility that service members could still be discriminated against based on their real or perceived sexual orientation. Presidential action is necessary to finally reach these goals. Presidents have long used Executive Orders to address discrimination in the federal work force. In 1941, President Roosevelt issued an order prohibiting racial discrimination in the national defense industry (E.O. 8802). Seven years later, President Truman issued his oft-cited order demanding “equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin” (E.O. 9981). President Clinton used his executive power to prohibit discrimination based on sexual orientation in the federal civilian workforce (E.O. 13087). Finally, President Obama issued a memorandum extending federal benefits to the same-sex domestic partners of federal employees (June 2, 2010 Presidential Memorandum). Once the certification process is complete and 10 U.S.C. § 654 is repealed, the President will have the authority to institute a non-discrimination provision, prohibiting discrimination in the armed forces.
SALT will continue to work toward full equality advocating for an Executive Order at the time repeal becomes effective that would prohibit discrimination based on sexual orientation in the armed forces; and encourage President Obama to amend his June 2, 2010 memorandum, “Extending Benefits to Same-Sex Domestic Partners of Federal Employees,” to include the armed forces.
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.
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.
Watch a brilliant Colbert Report broadcast from Iraq on why Don’t Ask Don’t Tell has got to go!
Created: May 23, 2013
Modified: May 16, 2013