06 March 2006

Stupid ≠ Unconstitutional

This morning, the Supreme Court decided that Congressional arrogance, irrationality, and indeed stupidity is not necessarily unconstitutional. I disagree in this particular instance—but so narrowly, on such a narrow ground on these facts (and they are facts that are probably not part of the record), that I have to resort to blaming Congress.

Today's unanimous (Justice Alito not participating) decision in Rumsfeld v. FAIR, No. 04–1152 (06 Mar 2006), held that the so-called Solomon Amendment does not exceed Congress's constitutional power by requiring law schools to allow equal access to military recruiters, in the face of the conflict between the military's discrimination against homosexuals and the American Bar Association's prohibition on discrimination against homosexuals.

In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.

Id., slip op. at 14–15. The initial problem with this assertion is the last sentence. It would be very interesting to go to a law school at which historically a nontrivial portion of the graduating class is not employed as attorneys within six months of graduation, add up average student loan indenture, and see if one reaches the same conclusion.

Where the Court's rationale really runs into trouble, though, is in the justification (or lack thereof without reference to religious doctrine) for the treatment of homosexuals in the military.

[Fitzwallace:] I also think the military shouldn't be an instrument for social change… Problem is, that's what they were saying about me fifty years ago. Blacks shouldn't serve with whites, it would disrupt the unit… You know what? It did disrupt the unit. You know what else? The unit got over it.

"Let Bartlet Be Bartlet," The West Wing (26 Apr 2000). Combine this perspective with the recent controversy over evangelism at the Air Force Academy (I express no surprise whatsoever… and I didn't go to that trade school—I got a real education); the duplicity involved in partisan gerrymanders; the increasing demands that American military personnel do more than just kill the people they encounter from cultures other than our own; and one has a recipe for disaster. And that is without even getting into the problem created by removing people with critical skills merely because of the gender of whom they (might) choose to sleep with, or the military's long-standing inability to handle its problems with sexual harassment and nonconsensual heterosexual relations.1 Thus, stupid… but not unconstitutional.

One good thing that does come out of this opinion is a reaffirmation that the parties to a suit cannot collude to prevent the Court from reaching a critical constitutional question.

In its reply brief, the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR. But our review may, in our discretion, encompass questions "fairly included" within the question presented, and there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says. Nor must we accept an interpretation of a statute simply because it is agreed to by the parties. After all, "[o]ur task is to construe what Congress has enacted." We think it appropriate in the present case to consider whether institution can comply with the Solomon Amendment by applying a general nondiscrimination policy to exclude military recruiters.

Id., slip op. at 6 (citations omitted). Although this seems fairly obvious, it does point out that sometimes one must answer more than the literal question to actually resolve the dispute.

  1. I was a commanding officer for long enough to see my unit "disrupted" by problems of this nature over which I had no control. I was a victim's CO twice, and I remain disgusted to this day by the way one of those incidents was (not) resolved.