29 November 2004

Splitting the Baby

Or, in this instance, splitting the splitter. The Third Circuit, in a divided opinion (PDF) (and thanks for the timely link, Howard), has enjoined operation of the Solomon Amendment. In English, that means that the DOD cannot retaliate against colleges and universities that prohibit or restrict military recruiters from access to students on the ground that the DOD's homophobia constitutes discrimination that is inconsistent with the schools' precepts. (Procedurally, it's a little more complicated than that.)

As I've tried to make clear over the past few years (or, in the case of this blawg, last year and a half), I do not support the homophobia written into the UCMJ. Even if I had ever had any thoughts that consensual homosexual conduct is somehow more-disqualifying than other types of consensual conduct, my contact with the Tailhook cover-up investigation would have destroyed that. If the military is going to pay any attention at all to sex, it should be paying attention to nonconsensual behavior before worrying about anything consensual. I also do not buy the "homosexuals are a security risk" argument, because it is purely tautological—they only have reason to hide their behavior if their behavior is prejudged as inappropriate, and therefore are a risk only if forced to stay in the closet in the first place. In this period of steady increases in tactical, logistical, and doctrinal complexity, we cannot afford to eliminate a potential source of qualified candidates for service absent actual proof of unsuitability.

Admittedly, that's merely the context of the matter. The crux of the matter is some overly complex doctrine in First Amendment law. Basically, the case comes down to this: Does the Solomon Amendment force colleges and universities to engage in expressive acts that constitute speech; and, if so, is that speech outside the permissible scope? Consider, for example, the TILA disclosures mandated on consumer-finance contracts. They are clearly "compelled speech," but they fall within a permissible government purpose. Unfortunately, neither the majority nor the dissent realizes that the question as stated puts the cart before the horse. Anything can be turned into "expressive conduct;" unfortunately, the substance of the "expression" matters a great deal more to this determination than it should. If a man can wear a jacket into the courthouse—the one place that most citizens will ever enter that has true "majesty of government"—emblazoned "Fuck the Draft," but a woman can't engage in fully naked erotic dance in front of a paying audience of consenting adults, can we really say that content is not outcome-determinative (or at least outcome-directive)? Consider, too, that one of those two sets of behavior advocates unlawful action—draft resistance—and the other at best advocates… well, I'm not entirely sure, but in a general sense it's not unlawful. (Perhaps immoral, depending upon one's morals; but then, that must be at least somewhat flexible—remember the Borgias?)

In any event, I think this was the correct outcome for the matter before the court. The real problem is that most of the people who lobby for, and make, the underlying law have little, if any, experience at any time in the active-duty military—and even less in the post-Cold War world. My conversations with them (and occasional eavesdropping upon them—that protocol officer over in the corner is probably not being paid to be oblivious in plain sight) over the years have not enabled me to discern a principled basis for this particular bit of irrationality. That's why we get law like the Solomon Amendment; and the COPA; and, reaching farther back, the Comstock Act, and the Alien and Sedition Act.