Lift the Ban Rally, March 7, 2008

SALT’s LGBT Committee’s focus remains on lifting the ban on gays in the military and opposing the new Solomon Amendment regulations that require educational institutions that receive federal funds to permit military recruiters on campus.

For access to statements of the SALT LGBT Committee, click here.

Update July 17, 2008: On July 15, 2008, SALT submitted a letter to AALS President Carl Monk requesting that the AALS reconsider its decision to hold portions of its January 2009 Annual Meeting at the Manchester Grand Hyatt Hotel in San Diego.  Doug Manchester, owner of the Manchester Grand Hyatt, has donated about $125,000 to a November 2008 ballot measure that would prohibit same sex marriage in California.  Click here to read the SALT letter.

On July 17, 2008, the New York Times printed this story in which proponents of the ballot measure bragged that calls for a boycott against Manchester's hotels have resulted in additional donations.  Click here to read the New York Times article.  

UPDATE: JULY 16, 2008:  A suit was filed to remove the anti-same sex marriage initiative from the November 2008 ballot.  the California Supreme Court ruled on July 16th that it would not remove the initiative from the ballot.

The documents filed by the parties and amicus in this pre-election litigation before the California Supreme Court, Bennett v. Bowen, are available below:

Petition for Extraordinary Relief, including Writ of Mandate and Request for Stay; Memdorandum of Points and Authorities, June 20, 2008

Request for Judicial Notice in Support of Petition for Extraordinary Relief, including Writ of Mandate and Request for Stay, June 20, 2008

Motion by Campaign for Families, Randy Thomasson and Larry Bowler to Intervene as Real Parties in Interest with Supporting Memorandum, June 27, 2008

Preliminary Opposition of Real Parties in Interest to Petition for Extraordinary Relief, including Writ of Mandate and Request for Stay, June 30, 2008

Application of Attorney General Edmund G. Brown, Jr. for Leave to File Brief as Amicus Curiae; Preliminary Amicus Curiae Brief on Sufficiency of Title and Summary, June 30, 2008

Respondent Secretary of State's Preliminary Response to Petition for Extraordinary Relief, including Writ of Mandate and Request for Stay, June 30, 2008

Letter of Amici Law Professors in Support of Peititioners, July 10, 2008

UPDATE: May 2008: In an historic, yet 4-3 decision, the California Supreme Court found that the prohibition against gay marriage violated the state constitution in In re Marriage Cases, decided May 15, 2008. 

California Governor Arnold Schwarzenegger released the following statement:

"I respect the Court's decision and as Governor, I will uphold its ruling.  Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling." 

On May 29, 2008, New York Governor David Patterson announced a directive to state agencies to revise their regulations to recognize same-sex marriages performed in other jurisdictions, like California. According to a report developed by Empire State Pride Agenda and the New York City Bar Association, there are over 1,300 benefits conferred on married couples that are unavailable to same sex couples because of the prohibition against marriage: 1,324 Reasons for Marriage Equality in New York State.   On May 30, 2008, in an editorial in the New York Times, the Governor's directive was applauded. 

UPDATE: Friday March 7, 2008 was Lobby Day in Washington, D.C. to repeal "Don't Ask Don't Tell." Law school students from as far away as Vermont and New York converged on the Congress to lobby to end the policy that has been discriminating against gay and lesbian members of the armed services. Students distributed literature to every Senate and House office.  Over 100 students came from Vermont Law School, Boston College, Univ. of Virginia, American University, Columbia, Georgetown, George Washington, NYU, Fordham, Hofstra, Brooklyn, and Touro.  They asked Senators to introduce and co-sponsor a bill in the Senate to conform to the Military Readiness Enhancement Act currently pending in the House.  Outlaws continued to seek additional co-sponsors for the House bill by distributing literature to those members who haven't signed on yet. At the rally following the morning's activities,  Eleanor Holmes Norton, Vincent Coleman, and Jackie Gardina were among the speakers.

Eleanor Holmes Norton and Jackie Gardina are among the speakers at the Lift the Ban Rally

SALT's national office is located at Touro Law Center and has developed a lesson plan to teach students how to effectively lobby. Click here for a copy of the lesson plan.

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 off-campus. As a result, law schools' policy began to be perceived as anti-military rather than anti-discrimination. Because of this perception, 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 the Boston College “Coalition for Equality” letter to JAG candidates and the Washington University in St. Louis “Coalition for Equality” statement.) 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.

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. See NALP's Amelioration Best Practices Guide and NGLTF/SLDN Law Student Toolkit to Repeal the Military's Gay Ban.

In addition, law students and faculty can come to Washington, DC and participate in a Lobby Day to lift the ban. In 2007, more than fifty law students and faculty from 14 law schools came to Washington, D.C. to urge Congress to pass this legislation. While this was the fifth annual Lobby Day to lift the military's gay ban, it was the first time there was substantial law school participation. Students from Fordham, NYU, and Columbia law schools arranged for a bus from New York City to D.C. Twenty-three students, faculty and staff from Vermont Law School, including the school's Dean/President, came to D.C. Boston College law students organized a letter-writing campaign among 25 law schools, producing 5000 constituent letters urging members of Congress to lift the ban, including 1800 letters collected by students at the University of Maine. Students, faculty and other Lobby Day participants received training on how to lobby, and then fanned out to every member office on Capitol Hill.

Law schools participating in 2007 Lobby Day to lift the ban on gays in the military:

American University
Boston College Law School
Columbia University Law School
Franklin Pierce Law School
Georgetown University Law Center
Harvard Law School
Fordham Law School
New York Law School
New York University Law School
Seton Hall University
Touro Law School
Vermont Law School
Washington University in St. Louis
University of Maine School of Law

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 thse views to students.

To read the complete SALT/FAIR letter, click on attachments below.

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.

Take Action on Solomon!

Check here for listings as this movement picks up momentum on college campuses. If you have an action that you would like to add to this list, please contact the SALT webmaster:

IMPLEMENT the measures suggested in SALT's "Amelioration and Equality: Action Checklist for Law Schools," available for download as a PDF document.