Just below, Mike O’Hare looks for insight on the case before the SC on withdrawal of federal funding for schools that don’t permit military recruiters at their law schools. Mike admits to being perplexed, and asks Jonathan and me to help cure him. Sorry–I’m as perplexed as he is, for this is a genuinely problematic issue.
Let me state my priors. First, I think the rules against open homosexuals in the military are stupid, and are harmful from the point of view of military performance. I’m not convinced they are unconstitutional, but I set a pretty high bar for considering anything unconstitutional. Law schools should use whatever powers of persuasion they can bring to bear to change this preposterous, and counter-productive rule.
That said, I also believe that: a) it is a core power of the federal government to raise an army (a consideration that Roberts stated in oral argument he thought was paramount) and; b) anything that reduces the effectiveness of military recruiting on elite law school campuses (which both improves the quality of the military, and probably helps to increase the military’s ideological diversity) is a very, very bad thing. I’m not sure I buy the 1st amendment argument here, given that no one is saying that law schools can’t continue to argue vigorously against the military’s policy. I’m sympathetic to Michael’s concern that tying so much federal aid to conformity with government policy in this area is problematic, but I think this is a matter on which the courts would do well to steer clear of, given the difficulties of drawing lines on the issue.
So, I suppose that I’m with the government on this one, tentatively. There is little evidence that the law schools’ forbidding recruiters actually does anything to weaken the (stupid) underlying policy here, while limiting recruiters’ access probably does have a negative impact on recruiting, thereby making the military (in particular the JAG corps, where the more liberal-minded recruits the better). I’d be interested in what Jonathan has to say here–I’m happy to be convinced that my instincts are wrong.