A Stitch in Haste

What a disconcerting Tech Central Station piece today by Michael Rosen decrying the challenges to the bigoted Solomon Amendments that threaten the withholding of all federal funding to all units of a university if even just one of its division (i.e., its law school) bars military recruiters from using its facilities.

When Rosen isn’t busy calling the law schools’ actions a “crime” that “segregate” students and exhibit “intolerance” (how Orwellian is that?), or mocking the Third Circuit judge’s name, he is making just about every legal error one could imagine in this fact pattern (e.g., he mistaken believes that the Spending Clause always trumps the First Amendment — um, no).

Meanwhile, nowhere, absolutely nowhere, does Rosen bother to explain exactly why the Solomon Amendment should be supported, except for some limp-wristed goose-stepping about how it’s wrong to hassle the federal government with pesky complaints about, inter alia, nuisances such as anti-gay bigotry and forced recital of the Pledge of Allegiance. Rosen’s worldview regarding government appears to be: “My Big Brother can beat up your Founding Father.”

And this guy’s on TCS? Now there’s a situation where “don’t ask, don’t tell” might be a good policy. A libertarian this guy ain’t.

Others are blogging fast and furious about Rumsfeld v. FAIR, so I won’t reinvent the wheel. Just one parting question for Mr. Rosen, who writes:

[T]he schools are undermining their own efforts to reform the military's Don't-Ask-Don't-Tell policy while seeming disdainful of servicemembers sacrificing their lives abroad.

And what exactly are those heroic servicemembers (like this one) sacrificing their lives abroad for? I would certainly hope that it’s not for the blind “government knows best” philosophy and jurisprudence Rosen seems to embrace.

UPDATE: Slate has a good primer on both the history of Solomon and the current litigation posture, and revisits the theme I blogged about here: that the anti-gay Solomon Amendments cannot be reconciled with the equally anti-gay case Boy Scouts v. Dale, 530 U.S. 640 (2000). One or the other has to go.

Related Posts:
Anti-Gay Judge: No Yalies Need Apply After Recruiter Ban

The Ghost of Dale Continues to Haunt

So I'm wading through the muck of a very incoherent rant about Rumsfeld v. FAIR, the now-pending Supreme Court review of the Solomon Amendments, by Cardozo Law Professor Marci Hamilton, at the usually excellent FindLaw Writ site.

And I'm enduring paragraph after paragraph of rolling my eyes at the repeated whining about "What's the big deal?" and "offering facilities is like offering coffee and doughnuts" and "law professors are overwhelmingly liberal" and "without JAGs there will be more Abu Ghraibs" and "Why not ban law firms that don't offer flextime?" and sundry other nonsense.

Then I come to this astounding phrase:

Now, law schools might tell you that these [law] firms say they do not discriminate on the basis of gender or race. But so does the federal government's "don't ask, don't tell" policy, which is sexual-orientation blind.

Well spank my ass and call me a 1L. And all this time silly ol' me was thinking that DADT was a policy designed to keep gays out of the military (or at the very least in the closet and miserable). I'm glad I have Professor Hamilton to clear that up for me: DADT is actually "sexual-orientation blind"! I guess that means it's designed to keep straights out of the military too! No wonder the military can't meet it's recruitment goals -- only sexually indeterminate virgins need apply.

My intention originally was to comment on Professor Hamilton's constitutional arguments, but there really isn't much to comment on. Only 25% (566 out of 2256 words) is devoted to constitutional analysis; the rest is plain-vanilla conservative anti-gay and anti-academia whining. In any event, what Rumsfeld v. FAIR is going to boil down to is a reconciliation of several conflicting doctrines and cases, including Boy Scouts v. Dale, 530 U.S. 640 (2000). Perhaps I'll tackle some actual legal analysis in a future post -- which would put me one step ahead of Professor Hamilton.

The Pentagon is so desperate for new recruits that they are, yet again, proposing to raise the enlistment age:

Faced with major recruiting problems sparked by troop deployments in Iraq and Afghanistan, the Pentagon has asked Congress to raise the maximum age for U.S. military enlistees from 35 to 42 years old.
...
The Army National Guard, struggling more than any other part of the U.S. military to sign up new troops amid the Iraq war, missed its ninth straight monthly recruiting goal in June.

The regular Army met its recruiting goal this month, but is still 14 percent behind its year-to-date recruiting target and is in danger of missing an annual recruiting goal for the first time since 1999. The Army Reserve is 21 percent behind its year-to-date goal and also in danger of falling short for the year.

That's right, you can be 42 and an E-1.

Just don't be gay.

Similar thoughts at Republic of T.

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Talk about bad timing: The government has submitted its petitioner's brief to the Supreme Court in the Solomon Amendment case, Rumsfeld v. FAIR (PDF - 53 pages).

To me it seems the biggest hurdle the government faces is reconciling the Solomon Amendments with the Court's holding in Boy Scouts v. Dale, 530 U.S. 640 (2000).

A quick perusal of the brief suggests that quite a bit of it addresses the Dale question and asserts that Dale was only about membership, not other forms of "expressive conduct." I know for a fact that's not correct; the opinion (written by Chief Justice Rehnquist, incidentally), clearly states that membership restrictions are only one example of an association's "freedom of expressive conduct."

I'm going to try to read through the brief and to re-read Dale and weigh in this weekend. Stay tuned.

The British military is granting full and equal benefits, even housing, to gay military couples who enter into "civil partnerships" --

Gay servicemen and women who enter into civil partnerships are to be entitled to married quarters on military bases.

The so-called "gay marriages" will become legal on December 5 this year following the passage of the Civil Partnerships Act.
...
A Ministry of Defence spokesman said gay personnel in civil partnerships would be treated in the same way as married troops in terms of entitlements to allowances and benefits.

Remind me again how "Don't Ask, Don't Tell" is all about morale and unit cohesion?

And remind me again how the United States military is supposedly the most modern in the world?

To review: Under the Solomon Amendment, 10 U.S.C. 983, colleges and universities must grant military recruiters the same access as any other employer, or else risk losing all their federal funding. The threat applies to the entire institution, even if only one unit (e.g., the law school) attempts to bar military recruiters over its facially discriminatory "Don't Ask, Don't Tell" policy barring gays from serving in uniform.

A major lawsuit challenging the constitutionality of the Solomon Amendment, Rumsfeld v. FAIR, will be argued before the Supreme Court in its upcoming term.

For whatever reason (i.e., Iraq), the military is not waiting for the final resolution of Rumsfeld v. FAIR and has a launched a pre-emptive strike against three law schools.

The interesting thing about this iteration of the funding threat is which schools the military is targeting — not Harvard, Yale or any other large, famous or rich law school, but three relatively small and obscure schools:

The Defense Department last week said that New York Law School is ineligible for federal funding because of the difficulties JAG recruiters have encountered trying to contact students on the school's campus, located in Manhattan. Military officials have also deemed Vermont Law School in South Royalton, Vt., and William Mitchell College of Law in St. Paul, Minn., ineligible for federal funds.
...
Kent Greenfield, a Boston College law professor and president of the Forum for Academic and Institutional Rights, a mostly anonymous coalition of law schools, said he thinks the Pentagon's enforcement of the law against the smaller schools may be a publicity stunt.

"They can pick off the Vermonts and William Mitchells of the world, and nobody will make a fuss," Greenfield told Inside Higher Ed, an online higher education news journal. "But I think the military knows better than to pick that fight [with Harvard]."

Indeed. Whatever happened to "pick on somebody your own size"? No pun intended, but the military shouldn't discriminate in its discrimination — either enforce Solomon or don't. But why replace what the military claims is a "reasoned" policy with one of petty bullying? It makes no sense — just like Don't Ask, Don't Tell makes no sense.

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Meanwhile, that shot across the law school bow has been heard by at least one objecting institution:

Harvard Law School will actively cooperate with military recruiters this fall, despite the Pentagon's refusal to sign the school's nondiscrimination pledge, Dean Elena Kagan announced this evening.
...
"This decision is prudent given the potential consequences to the University’s research and other activities," [Harvard president Lawrence H. Summers] said.

The trustees and administration of Harvard and the other anti-DADT schools of course have a fiduciary duty not to endanger their federal funding, so one cannot summarily condemn their capitulation.

In any case, one wonders just how desperate the military must be at this point if it can't go one or two more semesters without on-campus access in order to recruit JAGs.

More thoughts at FaerieWizard.

The United States Army fell 6,600 people short of its 80,000 recruiting goal for the twelve months ended September 30, 2005. The other branches met their goals, although the Marines struggled to do so.

As a result, the military not only continues to raise financial incentives to attract new recruits, but may also be forced to consider "radical" new approaches to finding willing soldiers:

Michael O'Hanlon, defense specialist at the Brookings Institution, said Monday that if conditions get worse the future of the all-volunteer force could be in jeopardy.

"Unless the situation in Iraq improves, or unless we drastically enlarge the pool of possible recruits in some way -- for example, lowering academic standards for them, or even considering an extreme option like allowing foreigners to gain U.S. citizenship by serving -- one would have to expect continued tough slogging for the Army," O'Hanlon said.

So it's better to have semi-literate flunkies, or foreign mercenaries who want to bypass the traditional immigration provess, joining the military than to allow openly gay citizen-patriots the opportunity to serve their country?

How much more blatant does the stupidity of "Don't Ask, Don't Tell" have to become before the military concedes defeat and allows gays to serve, even if only in non-combat roles at first (so the "unit cohesion" gobbledygook becomes moot)?

If one good thing comes from the Iraq War, it will be the end of DADT. A bittersweet result, perhaps, but every gain counts.

POST SCRIPT: I never miss an opportunity to remind readers that "Don't Ask, Don't Tell" was brought to you, as was federal DOMA, by the Democratic pervert-president, Bill Clinton.

Your revered Admiral Nogura invoked a little-known, seldom-used "reserve activation clause." In simpler language, Captain, they DRAFTED me!
--Dr. McCoy, "Star Trek: The Motion Picture"

The Army has announced that it will no longer summon up unwitting and unwilling members of the Individual Ready Reserve to active duty:

Poor records management has hampered the Army's efforts to draw on the pool, intended to fill holes in existing Army units, [Army Secretary Francis J.] Harvey told defense reporters last week.

Since June 2004, the Army has begun mobilizing 6,535 people from the IRR. Of those, about 3,300 have reported for duty, and 1,450 have been granted exemptions on medical and other grounds, according to Army figures from October. The Army is trying to locate more than 400 who were supposed to report by October but have not.
...
Officials said a year ago that they anticipated a similar dip into the IRR in 2005, but the Army is struggling to complete the first group.

The Individual Ready Reserve is the last, most desperate pool of inactive veterans. These are men and women who have fulfilled their bona fide service, either in the full-time military or the Reserves, and for all intents and purposes are civilians, with real lives, real families and real commitments. If they had been eager and able to serve in Iraq (or in another capacity), then they could easily have re-entered the active military.

Although there have been some reports of questionable IRR activations (to complement the whole issue of "stop-loss" extensions of service obligations), it is admittedly true that re-activated IRR members are "merely" being held to their enlistment contracts. Still, this is as close to a draft as an "all-voluntary military" can come.

Of course, this is a good opportuntity to remind the Department of Defense that it would be unnecessary to activate the IRR -- indeed it would likely be unnecessary to even have an IRR -- if they would simply abandon that self-inflicted wound known as "Don't Ask, Don't Tell."

The primary excuse for DADT is that gays in the military "undermine unit cohesion and morale." But can anything be more detrimental to unit cohesion and morale than having unwilling soldiers serving?

If Americans weren't dying in Iraq, it would be downright laughable.

Introducing a new feature here at A Stitch in Haste.

I've become quite a fan of the Congressional Research Service's "OpenCRS" project, in which they make available online the same reports, primers and briefing papers that they prepare for Members of Congress. They even have an RSS feed.

Whenever a report relevant to the topics I blog about becomes available, I will highlight it here and provide links.

Here is my first recommendation:

The Congressional Research Service has released a briefing paper on the pending Supreme Court case Rumsfeld v. FAIR, No. 04-1152, in which the Court will rule on the constitutionality of the so-called "Solomon Amendment," 10 U.S.C. § 983. This law coerces colleges and universities to allow military recruiters onto their campuses by threatening to withhold all their federal funding, despite the schools' policies barring employers that discriminate on the basis of sexual orientation (which of course the military does via "Don't Ask, Don't Tell").

The report is a good summary of the issue and the litigation and is suitable for laypersons.

The Supreme Court will hear oral arguments on Rumsfeld v. FAIR on December 6.

For my blogposts on the case and DADT, see this chain.

Links to the briefs (all PDF files):
--Government's Brief (53 pages)
--FAIR's Response (62 pages)
--Government's Reply (24 pages)

Judging from today's oral arguments, it appears that, as widely predicted, the Supreme Court will reverse the Third Circuit Court of Appeals and uphold the constitutionality of the so-called Solomon Amendment, 10 U.S.C. 983, which coerces colleges and universities to grant equal access to military recruiters despite their bigoted and discriminatory "Don't Ask, Don't Tell" policy.

Of course, the actual decision will be several months away, but here are some hasty stitches, some of which I've hinted at in previous posts.

--The whole issue of the Solomon Amendment will of course one day be moot. "Don't Ask, Don't Tell" is a stupid, embarrassing, counterproductive policy that will, of course, be scrapped eventually. The recruitment shortages resulting from the Iraq War have made that even more obvious.

--The real question now is not what will become of Rumsfeld v. FAIR, but rather what will become of Boy Scouts v. Dale, 530 U.S. 640 (2000). The Supreme Court will have to somehow reconcile the (anti-gay) Dale case in order to uphold the (anti-gay) Solomon Amendment. That doesn't mean Dale will be overturned, but it could mean that it will be rendered a precedential dead-end. So theoretically we could see a time when we don't have a robust Dale-inspired line of anti-gay cases and also no "Don't Ask, Don't Tell" or Solomon Amendment. I could live with that.

--So much for the idea that you can win any lawsuit so long as you hire the best possible lawyers. If it were that simple, then this coterie of elite law schools and Ivy League law professors should have won hands-down. Go figure.

Other thoughts at Coffeehouse Soapbox, LLP, UpWord.

UPDATE: You can listen to the oral arguments here (RealPlayer file).

The Supreme Court has unanimously upheld the so-called Solomon Amendments, which withhold money federal monies from any college or university that denies military recruiters equal access despite the institution's opposition to Don't Ask, Don't Tell.

As I blogged previously, this result is not unexpected. What will be more interesting will be to see how the Court reconciled this decision with its previous anti-gay ruling in Boy Scouts v. Dale, 530 U.S. 640 (2000), which held that private institutions indeed have a First Amendment right to freedom of association, including the right to exclude.

DADT is on its death bed anyway; this is a symbolic loss more than anything else from a gay rights perspective.

On the other hand, expect lots -- lots -- more Solomon-esque strings to be attached to educational grants in the future now that the Court has given the practice a green light.

More after I read the decision (PDF - 21 pages).

More thoughts at SCOTUSblog.

Many libertarians refused to get uppity about Rumsfeld v. FAIR, 04-1152, because they believe that government subsidizing colleges and universities with taxpayer dollars is an improper activity to begin with. They couldn't be bothered with nuanced differential applications of the Spending Power such as those imposed by the Solomon Amendment. To them, it's just all bad, period.

Many anti-libertarians, meanwhile, refused to get uppity about Rumsfeld v. FAIR because of what might be called the "Piper Doctrine" — as in "He who pays the piper calls the tune..." If the government is giving money, then what's wrong with attaching strings?

Fair enough, I suppose.

But can't we all just get uppity now?

The Constitution grants Congress the power to "provide for the common Defence," "[t]o raise and support Armies," and "[t]o provide and maintain a Navy." Congress' power in this area "is broad and sweeping" ... and there is no dispute in this case that it includes the authority to require campus access for military recruiters.
...
Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

Translation: Congress doesn't even need the Spending Power or the "Piper Doctrine." They can simply commandeer colleges and universities wholesale under the power to raise and support armies. Colleges can be forced to accommodate the military, with or without federal money.

Or so says Chief Justice Roberts, speaking for a unanimous Supreme Court.

So much for the libertarians who couldn't be bothered about this issue.

And so much for those who said that "schools could just turn down the funding if they really cared so much about their principles." No, it wasn't quite that simplistic after all.

Of course, these days the Court considers just about any and every Article I power to be essentially plenary — just look at the Court's Commerce Clause jurisprudence. Still, in these War on Terror times the notion that Congress can commandeer our private civic institutions and enjoy a presumption of constitutionality simply by parroting "it helps the military" is almost as frightening as the Bush Administration's claim that the Commander-in-Chief power authorizes warrantless wiretapping of Americans in America.

The Dark Side clouds everything...

Similar observations from How Appealing, SCOTUSblog.

(Note: I hope to address the question of "Rumsfeld v. Dale" tomorrow.)

Back in December, when the Supreme Court held oral arguments in Rumsfeld V. FAIR, No. 04-1152, I noted the following:

The real question now is not what will become of Rumsfeld v. FAIR, but rather what will become of Boy Scouts v. Dale, 530 U.S. 640 (2000). The Supreme Court will have to somehow reconcile the (anti-gay) Dale case in order to uphold the (anti-gay) Solomon Amendment. That doesn't mean Dale will be overturned, but it could mean that it will be rendered a precedential dead-end. So theoretically we could see a time when we don't have a robust Dale-inspired line of anti-gay cases and also no "Don't Ask, Don't Tell" or Solomon Amendment. I could live with that.

Well, here's the "somehow" --

In Dale, we held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law, which required the organization to accept a homosexual as a scoutmaster.
...
But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students -- not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school "to accept members it does not desire."

I find that reasoning wholly unpersuasive. It's arguably completely backwards. The Court is essentially saying that someone who is outside an organization by choice somehow has greater claims against that organization than someone who is outside by forced exclusion. Colleges have less control over their prospective visitors than over their prospective students, faculty or staff? That cannot possibly be right.

Would a lawyer who doesn't want to join a law firm have greater legal standing against that firm for wrongful discrimination than the lawyer who does want to join and is denied for an improper reason such as race or gender? Would the retiree who wants to take a single non-credit course at the local college have greater legal protection than the recent high school school graduate wrongfully denied full-time admission? Does a tenant owe his roommates less accommodation than his roommates' visitors? Would the Boy Scouts have less of a right not to buy its uniforms from a particular apparel manufacturer than it would to keep out gays as members?

I say again: that cannot possibly be right.

The very fact that the military "are by definition, outsiders" is precisely why the colleges should have a greater prerogative to exclude them than, say, the Boy Scouts of America should have to exclude gays. If the Court wants to argue (as it did) that "the military is different," then so be it. But the military is different because it's the military, not because it's an "outsider." To the extent that the military gets special treatment, it's despite their "outsider" status, not because of it.

Chief Justice Roberts' non-reconciliation of the Solomon Amendment with Dale is clearly the weakest part of the decision. I don't think it's unfair to call it embarrassing.

In any event, let's hope the whole issue quickly becomes moot via the inevitable abolition of Don't Ask, Don't Tell.

The Sea Scouts of Berkeley, California, an affiliate of the Boy Scouts of America, have been and are continuing to sue that town for denying them free access to the city's public piers:

In March, the California Supreme Court ruled that Berkeley did not violate the rights of the scouts by charging them a $500 monthly berthing fee for use of the Berkeley Marina.

The city policy was enacted after members of the Berkeley City Council and the Waterfront Commission determined the Sea Scouts, an affiliate of the Boy Scouts, violated the city's anti-discrimination policy. The Boy Scouts officially ban gays and lesbians from their programs.

In a unanimous decision, the state supreme court stated it was legal for municipalities to demand compliance with nondiscrimination policies.
...
The U.S. Supreme Court has not yet announced whether it will hear the case.

Here's the fascinating, and deliciously ironic, aspect of this litigation: The Sea Scouts are doomed to lose after the Court's recent ruling in Rumsfeld v. FAIR, No. 04-1152 (2006).

The holding of FAIR is, for better or worse, unambiguous: If an organization -- even one with a First Amendment "right to expressive association" under Boy Scouts v. Dale, 530 U.S. 640 (2000), (i.e., a right to discriminate based on bigotry) -- wants to partake of government subsidization, then it must play by the government's rules. Government funding can come with (reasonable) strings attached. He who pays the piper...

That was exactly what the bigots wanted in Rumsfeld v. FAIR; that was exactly what they got.

Oops.

Now that the string attached is "you can't discriminate" rather than "you can't exclude those who do discriminate," suddenly the bigots are crying foul? Suddenly the First Amendment matters again? Dale for me, but FAIR for thee?

Um, no.

I can't imagine any scenario where the Supreme Court would agree to hear the case, let alone rule in favor of the Sea Scouts. If anything, granting cert would give the Court an opportunity to revisit and overturn Dale, which -- given the current composition of the Court -- is certainly not on their agenda these days.

The Army often talks of doing the harder right rather than the easier wrong, and now it is time to put the policy where the propaganda is. Allowing the open service of gays in the military is the right thing to do, no matter how difficult a transition it may be.
--Second Lieutenant Alexander Raggio

Don't Ask, Don't Tell It Like It Is?

Alexander Raggio says he was 16 when he learned one of his relatives was gay -- and watching that person's struggle gave him a grim introduction to discrimination against gays.

He carried those feelings into West Point, and in his senior thesis argued that the military's policy banning gays is not only wrong, but harmful to the Army.

The Pentagon may not agree, but the U.S. Military Academy gave him an award for the paper.

It's quite simple really: Today's lieutenants are tomorrow's generals. And there is undoubtedly a long way to go -- just as there was in 1948 when President Truman ordered the military racially integrated.

So be it.

DADT is an foolish, purely political policy that undermines our military, and by corollary our national security. Its relegation to the dustbin of history is inevitable, and hopefully will come sooner rather than later.

Now we just need more officers like Second Lieutenant Raggio to catalyze it.

Raggio's 23-page thesis available at this PDF link.

More thoughts at Good As You.

Players of Xbox 360 games are familiar with the concept of "unlocking achievements."

So as you play, not a game but this video, try to unlock the following achievements:

1. Not to burst into laughter every 30 seconds.
2. To gain a greater appreciation of just how miserable and decrepit the bigots are.
3. The true reason that Bleu is a deviant. (I'm not kidding — he really is a deviant; try to figure out why.)
4. Remind me again why judges should defer to the "will of the majority," when this is the "majority" (not really) to which they are being asked to defer.

---

Meanwhile:

Gay-activist group Family Pride has produced a pamphlet [PDF - two pages] to guide homosexual parents in introducing themselves to their children's schools.

"Building Family Equality in [Every] Classroom" suggests parents attend the first PTA meeting together and introduce themselves as a couple.

Barbara McPherson, legislative affairs coordinator for the California Family Council, told Family News in Focus such activism doesn't belong in school.

"It's a crossing of the line almost between information that helps people understand tolerance within their community versus an indoctrination," she said, "trying to get other people's children to think that same-sex partners are normal."

That's right: a gay parent going to a PTA meeting is now "activism."

Remind me again how "It's all about the children"?

(Via Good As You.)

It looks like the Boy Scouts might get dinged by the California Supreme Court yet again:

[T]he California Supreme Court has been asked to look at ... whether the Scouts are a religious organization ineligible for certain types of government aid, including dollar-a-year leases of public land.
...
The Boy Scouts' exclusion of gays and atheists was upheld in 2000 by the U.S. Supreme Court, which ruled that the constitutional right of freedom of association entitled the organization to maintain its principles, including its views of morality and religious faith. But other courts have ruled since then that government agencies are not required to ignore the Scouts' policies or treat them equally in all programs.

The specific legal issues are not quite the same here as in the recent "Sea Scouts" case, but the broad principle underlying both fact patterns is exactly identical: If you want the freedom to discriminate that comes with being a "private" entity, then do so with your own private dollars and on your own private property -- leave the government and the taxpayer out of it. A "right to bigotry" does not extend to a "right to taxpayer-subsidized bigotry."

And while we're on the topic of "taxpayer-subsidized," the Bush Justice Department has filed an amicus brief siding, of course, with the Boy Scouts. To be filed under "morally straight..." (or, alternatively, "Do a good turn daily...").

The case is Barnes-Wallace v. Boy Scouts of America, No. 04-55732, 04-56167 (9th Cir.).

(Via How Appealing.)

The United States Army continues to humiliate itself by allowing almost anyone — from grandmothers to idiots — to enlist, so long as they're not gay. Because gays are, somehow, bad for morale and some gobbledygook known as "unit cohesion."

Did I mention criminals?

The number of waivers granted to Army recruits with criminal backgrounds has grown about 65 percent in the last three years, increasing to 8,129 in 2006 from 4,918 in 2003, Department of Defense records show.
...
It has also increased the number of so-called "moral waivers" to recruits with criminal pasts, even as the total number of recruits dropped slightly. The sharpest increase was in waivers for serious misdemeanors, which make up the bulk of all the Army's moral waivers. These include aggravated assault, burglary, robbery and vehicular homicide.

Giving criminals "moral waivers" — I can just hear the recruiter saying, "Heckuva record, Brownie — welcome to the Army!"

An attorney is never supposed to publicly ask a question he doesn't already know the answer to, but would the median soldier, especially the median combat troopmember in Iraq or Afghanistan, really experience greater morale — and feel more "cohesive" — with a convicted robber or burglar as his bunkmate than a spotless-record homosexual? If so, then the military has even bigger problems than the robbers and burglars.

More thoughts from UpWord.

Information on efforts to repeal "Don't Ask, Don't Tell" in the US Senate forthcoming.
--Service-Members Legal Defense Network website

With much fanfare and self-back-patting, Representative Marty Meehan and the Service-Members Legal Defense Network have, yet again, touted the introduction of the Military Readiness Enhancement Act — which would repeal "Don't Ask, Don't Tell" — in the House of Representatives.

And, once again, there is no companion bill in the Senate.

Representative Meehan's press conference:

As a follow up he was asked when and who would sponsor a companion bill in the Senate. No one was sure who would sponsor or when but conceded that one would be introduced before the 2008 elections.
...
The next question then fell to the particulars of the companion bill such as who in the Senate is supportive of introducing legislature [sic]. The already knowns of Ted Kennedy, Russ Feingold, and [Hillary] Clinton were named as supporters.

While there is not as of yet a companion bill in the Senate, Dixon Osburn expects one this year but there has not been anyone named as of yet to sponsor such legislation.

So, bottom line, "full of House and fury, signifying nothing."

Meanwhile, a SLDN spokesperson responding to my comment in this post:

There WILL be companion legislation in the Senate in 2007. That's likely to be introduced in the Spring, and will mark the first time the Senate has considered a bill to repeal "Don't Ask, Don't Tell" since the law was first implemented in 1993. Stay tuned for information on which Senators will sponsor the legislation. :-)

Oh I'm staying tuned alright. In the meantime, I'll enjoy the dead air.

My problem of course is not with Representative Meehan or with the SLDN. My problem is with every Democratic Senator who takes the gay vote for granted while doing little if anything for gay rights.

Senators such as Hillary "Armed Services Committee" Clinton and Barack "Veteran Affairs Committee" Obama.

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On the inevitable presidential veto should a bill actually reach his desk?

I asked the Rep. what he thought he chances were of support from the President and he basically didn't have much of an answer other than it's important to focus on the short term goals.

Discuss.

"There may very well be individuals who think they are atheists when they go on the battlefield, but I've never known anyone who's been wounded to leave the battlefield as an atheist."
--General Peter Pace, April 21, 2006

"23,417"
--Latest number of "non-atheists" from the Iraq War.

The Chairman of the Joint Chiefs of Staff plays the raw recruit on Don't Ask, Don't Tell:

Pace said the Pentagon should not "condone" immoral behavior by allowing gay soldiers to serve openly. He said his views were based on his personal "upbringing," in which he was taught that certain types of conduct are immoral.

"I believe homosexual acts between two individuals are immoral and that we should not condone immoral acts," Pace said in a wide-ranging discussion with Tribune editors and reporters in Chicago. "I do not believe the United States is well served by a policy that says it is OK to be immoral in any way.

A few hasty stitches:

--Peter Pace is Catholic. Suddenly it all becomes unsurprising.

--The nation's Mercenary-in-Chief has no standing, none whatsoever, to lecture anyone on any aspect of "immorality." Do we really need to go into recent specifics?

--Stated differently, there is no such thing as a "Christian soldier," at least when there is no draft. What part of "love your enemy" is unclear? "Guns and Christ" is no less a contradiction in terms than "Guns and Allah," and any soldier — especially any professional soldier — who honestly thinks himself a "Christian" — Catholic or otherwise — has rather severe intellectual defects.

--JCS is a political position more than a military one. Like a Cabinet Secretary or any other high-profile member of the Administration, Pace is required, unconditionally, to shill for the President and endorse publicly any and every aspect of current policy — including its pandering sophistry on Don't Ask, Don't Tell.

--On the other hand, "I personally think it's immoral" is an arrogant overlay that is, or ought to be, orthogonal to (and omitted from) the discussion. If there are rational, objective arguments for discriminating against gays in the military, then let's discuss them (and, hopefully, disprove them). But Pace's personal views on the morality of homosexuality are about as relevant as his favorite flavor of ice cream.

--Isn't military training, especially officer training and double-especially command training, supposed to include what might be called "broadening one's horizons"? Shouldn't the highest ranking wearer of the uniform be able to think "outside the box" of his Brooklyn upbringing?

--One last thought:

"As an individual, I would not want [acceptance of gay behavior] to be our policy, just like I would not want it to be our policy that if we were to find out that so-and-so was sleeping with somebody else's wife, that we would just look the other way, which we do not. We prosecute that kind of immoral behavior," Pace said.

It's quite simple really: "Gay" is about expressing love. "Adultery" is about betraying love. These are equivalent — how?

The road is long.

More thoughts at Think Progress, PHB, Diminishing Returns, Small Government Blog, Evolution of Jeremiah, Nobody in Particular, Frontlines, Word of Mike, PurpleScarf, Outright Libertarians, Jaded City.

Can it be? A senior, albeit retired, conservative Republican politician calling for the end of DADT? (Also at WSJ - $.)

As a conservative Republican member of Congress from 1995 to 2003, I was hardly a card-carrying member of the gay-rights lobby. I opposed then, and continue to oppose, same-sex marriage, or the designation of gays as a constitutionally protected minority class. Service in the armed forces is another matter. The bottom line here is that, with nearly a decade and a half of the hybrid "don't ask, don't tell" policy to guide us, I have become deeply impressed with the growing weight of credible military opinion which concludes that allowing gays to serve openly in the military does not pose insurmountable problems for the good order and discipline of the services.

Asked about reconsideration of the don't ask, don't tell policy in favor of a more open and honest approach, the simplistic responses by several Republican presidential candidates left me -- and I suspect many others -- questioning whether those candidates really even understood the issue, or were simply pandering to the perceived "conservative base." The fact is, equal treatment of gay and lesbian service members is about as conservative a position as one cares to articulate.

This from former Georgia representative Bob Barr. Barr is of course correct that it is DADT, not its repeal, that is the "unwise social experiment in time of war" (which I believe is the current iteration of the radical social conservative talking point on the matter). "Gay soldiers in wartime" works. We know that -- the British have conclusively demonstrated it, as have the Israelis. Neither are "token" fighting forces. Neither can be summarily dismissed as irrelevant non sequiturs. Nor, or course, can the untold numbers of closeted gay soldiers who have served with distinction over the years (Clinton's current deflection on the subject).

Here, meanwhile, is a bona fide "unwise social experiment in time of war" --

For the first time since the Iraq war began, the Army is notifying thousands from a special category of reservists that they must report this summer for medical screening and other administrative tasks.

The decision to issue "muster" orders for 5,000 members of the Individual Ready Reserve, or IRR, is not a prelude to a new mobilization or deployment of reservists to Iraq, an Army spokesman said. Instead it is part of a new effort to fix an IRR call-up system that failed on multiple fronts early in the Iraq war.

The IRR is really nothing more than a mailing list -- it consists of discharged military personnel who have completed their bona fide service on active duty, the Reserves or the National Guard and are now simply "out." The IRR was meant solely as a last buffer before a draft in case of total military catastrophe.

To activate these ex-soldiers -- or even to think about thinking about activating them -- under these circumstances is the last act of desperation by a Defense Department that is not only running out of soldiers, but also running out of ways to spin their chronic recruiting shortfalls. There are only so many grandmothers and idiots whom they can enlist.

To merely parrot that allowing gays to openly serve is an "unwise social experiment in time of war" is as intellectually empty an act as a junior high schooler protesting that "gays are icky." A responsible Defense Department would undertake an extensive, impartial review -- of enlistees, commanders, veterans, and also the Brits and Israelis. To answer the question once and for all. The military should have to defend against enemies, not partisan talking points.

A responsible Congress, meanwhile, already knows what to do. The fact that this Congress -- especially the four sitting senators seeking the Democratic presidential nomination -- doesn't actually do it, merely shows that its members -- especially the four sitting senators seeking the Democratic presidential nomination -- are in fact not responsible legislators.

Don't ask the military about desertions:

An Associated Press examination of Pentagon figures shows that 174 troops were court-martialed by the Army last year for desertion -- a figure that amounts to just 5 percent of the 3,301 soldiers who deserted in fiscal year 2006. The figures are about 1 percent or less for the Navy and the Marines, according to data obtained by the AP under the Freedom of Information Act.
...
There is no crack team of bounty hunters, no elite military unit whose job is to track down deserters and bring them in. ... [T]he Pentagon does little more than enter deserters' names into an FBI national criminal database.

Two hasty stitches:

--While conscripts of course have a natural, if a not a legal, right to desert, volunteers do not. It is not per se irrational to believe that deserters should be executed as traitors.

--As for the real DADT, the correct term is of course, "Don't Ask, Don't Tell, Don't Pursue." Wouldn't it be nice (not to mention wise policy) for the military to indeed "not pursue" evidence or allegations (often spiteful allegations) of homosexuality, just as the military apparently can't be bothered to pursue deserters — who, unlike gays, really are a significant threat to morale and "unit cohesion"?

In case you were wondering, Chris Dodd is a moral defective:

I believe the time to put an end to the military's "Don't Ask, Don't Tell" policy has come — a change I called for some time ago. As President, I would call for a meeting with the Joints Chief of Staff to draw up plans that put an end to this policy within 6 months.

That's Dodd's gobbledygook. It's also (more or less) Clinton's, Obama's and Biden's gobbledygook. It is HRC's gobbledygook.

Here's reality:

DADT is a statute. It is no different than any other statute. It can be repealed, any time, by the plain, ordinary "I'm just a bill..." legislative process. Putting aside for now the pesky problem of a Bush veto (cf., ENDA), what gays need is not a President Dodd/Clinton/Obama/Biden working to end DADT, but a Senator Dodd/Clinton/Obama/Biden working to end DADT.

Recall: Such a bill already exists in the House — the Military Readiness Enhancement Act (H.R. 1246). As of October 20, 2007, it had 137 sponsors and cosponsors. It could pass the Democratic House any time the Democratic leadership wanted it to.

And the Senate?

Information on efforts to repeal "Don't Ask, Don't Tell" in the US Senate forthcoming.

That information has been "forthcoming" since at least February.

Each of the four sitting Democratic senators running for president is doing what Democrats running for high office always do to gays: talk the talk, then rev up the bus under which they will throw us when it comes time to follow through. And far too many gay Democrats will gladly go along with it, like they always do. They are the political equivalent of styrofoam packing peanuts: you use them to get your merchandise to its destination, then you throw them out.

The one nice thing I can say about Dodd is that he is not Clinton. Dodd merely spits in our faces with disingenuous garbage like this. Clinton also urinates on us (since she is on the Armed Services Committee and therefore could have special influence regarding DADT if she chose to), and then defecates on us too (by not compelling her pervert husband to publicly apologize for signing DADT into law in the first place).

Dodd is just another yawn of a sundry Democratic politician. Clinton is ... a Clinton.

Nevertheless, a pox on all four of these alleged "champions of gay rights."

UPDATE: And Biden. And Obama. And Clinton. All four moral defectives in perfect, worthless syncronization. And with the also-worthless Human Rights Campaign praising each one for their "stay tuned" attitude rather than demanding explanations for their inaction today. Absolutely pathetic.

A civics lesson from Hillary Clinton regarding Don't Ask Don't Tell:

During a recent interview with CBS on LOGOs Jason Bellini, Senator Hillary Clinton took the opportunity to discuss her presidential candidacy, her recent post-debate embrace with Barack Obama and her record on issues affecting the gay community — including "Don't Ask, Don't Tell."

Clinton reminded viewers of an important truth, that the ban on gays and lesbians in our armed forces is not a policy or a regulation, but a law; and as such, only Congress, with the support and signature of the President, can repeal it.
...
SLDN is urging lawmakers to support the Military Readiness Enhansment [sic] Act (HR 1246), the bill which will repeal "Don't Ask, Don't Tell," and allow every patriotic American to serve in the military regardless of sexual orientation.

As I commented at SLDN's website:

Still no version in the Senate.

If only there were a Senator or two who claimed to oppose DADT and who could sponsor a companion version of MREA in that chamber.

Especially one who sits on the Armed Services Committee, where such a bill would be first debated.

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Folks, I applaud your commitment to this issue, but do you realize at all how utterly preposterous it is for you, how humiliating it is to you, to commend HRC for reminding people that DADT is a statute without simultaneously calling her out for her despicable hypocrisy on the policy?

Regarding Don't Ask, Don't Tell, it's time for Put Up, or Shut Up.

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Meanwhile, Clinton herself today penned a missive explaining why she's just so fabulous for gays and cites all the wonderful things -- all seven of them -- that she's done for us.

One of those seven -- I am not making this up -- is that she marches in gay pride parades. For that she apparently deserves the White House.

Another -- I am not making this up -- is that she met, actually met, with some gays as Chair of the Senate Democratic Steering and Outreach Committee (whatever that is).

No wonder she hasn't found time to sponsor the MREA in the Senate, what with all those parades to march in, committees to chair and gays to meet.

(Via Good As You.)

To review: "Don't Ask, Don't Tell" is a federal statute, an act of Congress. It will take an act of Congress to repeal it. It is therefore the role of members of Congress — representatives and senators — to repeal it.

A bill — the Military Readiness Enhancement Act — has been languishing in the House for years. No companion bill exists in the Senate, for the pesky reason that no sitting senator is willing to sponsor it.

Hillary Clinton is a sitting senator.

Barack Obama is a sitting senator.

So, when either suggests, as Obama is doing now, that they will work as president to end DADT, when they have done exactly nothing on the matter as senator, the only sane response from a gay Democrat is to spit in their face, just like the candidates have been spitting in the face of gay Democrats throughout their respective tenures in the Senate. Tit-for-tat (or, if you prefer, "do unto others").

The fact that Clinton is an order of magnitude more loathsome than Obama regarding DADT due to: (1) her co-conspirator status on the matter during her eight years of service in her pervert husband's administration, and (2) her current membership on the Senate Armed Services Committee (i.e., where the MREA would be debated) is beside the point. The point is that when Obama jumps on the "when I'm president..." bandwagon, he too is being a disingenuous, despicable moral defective.

Plus ça change...

To review: Less than three weeks ago, a panel of the Ninth Circuit Court of Appeals sustained a challenge to Don't Ask, Don't Tell on the grounds that Lawrence v. Texas, 539 U.S. 558 (2003), imposes a substantive due process "heightened scrutiny" standard to government discrimination based on sexual orientation. Where there is heightened scrutiny, there is little or no deference to the legislature (or the military) and a discriminatory law is far more likely to be found unconstitutional.

Now comes word that a panel of the First Circuit has embraced essentially the same favorable standard:

Courts and commentators interpreting Lawrence diverge over the doctrinal approach employed to invalidate the petitioners' convictions. Some have read Lawrence to apply a rational basis approach. Others see the case as applying strict scrutiny. And a third group view the case as applying a balancing of state and individual interests that cannot be characterized as strict scrutiny or rational basis. Lawrence's doctrinal approach is "difficult to pin down." But we are persuaded that Lawrence did indeed recognize a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label.
...
Lawrence is, in our view, another in this line of Supreme Court authority that identifies a protected liberty interest and then applies a standard of review that lies between strict scrutiny and rational basis. [Footnotes and citations omitted.]

(The "line of Supreme Court authority" referenced is a series of cases applying heightened, but not strict, scrutiny outside the Griswold/Eisenstadt/Roe/Casey line of sexual privacy cases. See pages 26-28 of the opinion.)

The bad news is of course that the panel held that DADT in fact survives this "between strict scrutiny and rational basis" standard of review and is therefore constitutional.

So be it. But the very fact that the court embraced any level of heightened scrutiny is a victory (especially given a broad and deep tendency of courts to show almost absolute deference on military matters — cf., Rumsfeld v. FAIR). Losing the game is not as bad as having the rules stacked against you before you even play. So here we at least have some sweet to take with the bitter.

Meanwhile, thus far in 2008 we have seen:

• The Fifth Circuit extend Lawrence to commercial transactions.


• The Ninth Circuit explicitly hold that Lawrence requires heightened scrutiny based on sexual privacy precedent.


• The First Circuit do likewise based on liberty interest grounds apart from sexual privacy precedent.


• The California Supreme Court declare sexual orientation a suspect class for equal protection claims.

I think that's a pretty good trend.

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(The First Circuit was less kind to the discharged soldiers' equal protection and First Amendment claims, dismissing them entirely. One judge on the panel dissented only from the denial of the First Amendment claim but agreed with the panel's main holding.)

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The case is Cook v. Gates, No. 06-2313 (1st Cir., June 9, 2008) (PDF - 70 pages)