On Monday, the Yale Daily News reported that nearly half of the Yale Law School’s professors plan to sue the Department of Defense over its campus recruiting policies. In their haste, they ought to heed the words of of the free speech champion, and former Supreme Court Justice Louis Brandeis. In the 1927 case Whitney v. California, Brandeis expressed in his concurring opinion what has emerged as an essential condition in First Amendment legal thinking: in heated disputes, “– the remedy to be applied is more speech, not enforced silence.” Unfortunately, certain members of the faculty are pursuing an illiberal agenda by attempting to prevent Judge Advocate General Corps recruiters from meeting with students on campus.
The military’s “Don’t Ask, Don’t Tell,” policy has inflamed a national controversy in which an anonymous group of law schools sued the Defense Department over the Solomon Amendment. They plan to argue that the 1995 federal statute, which requires universities receiving federal funds to allow military recruiters on campus, violates the free-speech principles of the Constitution. Liberals have embraced the issue of gays in the military as one of civil rights. With a pervasive distaste for the armed forces, it is easy for the Left to attack the military’s policy on gays.
But what if the military’s decision to prohibit open gays from serving, aside from its unseemly un-American quality, is detrimental to our national security? Last November, the military discharged seven Arab-speaking linguists because of their homosexuality. At a time when we are fighting an Arabic-speaking enemy and when the need for trained Arabic speakers is dire, the stupidity of this policy could not be clearer. It is not the military’s concern who its translators sleep with, just that they speak their respective languages proficiently. Frank Kameny, one of the first gay rights advocates and a veteran of World War II, offered a tongue-in-cheek yet logically argued response. “To lower the quality of our armed services is to give aid and comfort to our enemies. But under Article III, Section 3 of the Constitution. giving aid and comfort to the enemy is a definition of Treason — anyone — who supports, administers, or is involved in the exclusion of gays from our armed services — is a traitor who should be indicted, prosecuted, tried, convicted, and hanged for Treason.”
Conservatives trumpet their toughness on national security but most of them (with notable exceptions like the late Barry Goldwater) oppose allowing gays to serve openly, placing their anathema to gay people over the national interest. But militaries throughout the Western world allow gays to serve openly. Britain, Canada, France and Israel, a country which by necessity has one of the most effective fighting forces on earth, allow open homosexuals to serve. What makes gays in the military such a political hot potato here is the influence of the religious right, a phenomenon unique to America and a major factor contributing to the military’s anti-gay policy.
But here at Yale, liberals are guilty of a similar ideological sin to their conservative opponents, for they, too, place dogma over the national interest. And by impeding students from seeking information on joining the JAG Corps, not only do they prevent our nation’s military from attracting the best and brightest minds, they are also undermining the principles of the First Amendment.
It is surprising that so many professors from a school as prestigious as Yale Law would sign onto a lawsuit that rests on such problematic legal ground. No one has forbidden law students, faculty or the administration from speaking out against “Don’t Ask, Don’t Tell.” Thus it is difficult to understand how anyone’s free-speech rights are being violated. Opponents of the Solomon Amendment can stand at the law school with camouflage gags symbolically placed in their mouths and hang black sheets in its hallways, but actively preventing students from seeking information about joining the armed forces is a different action entirely. If anything, it is Yale Law School that violates the free association and speech rights of the JAG representatives and the students who wish to meet with them. Law students should have the same opportunity to receive information about the JAG Corps as they do to receive information about joining some big corporate law firm. It is not the University’s role to tell its students who they can and cannot meet with on campus. To do so prevents the free flow of information and contradicts the mission of a discursive intellectual community. Yale University has a binding agreement when it accepts federal money. If Yale breaches the contract by refusing military recruiters the right to interview students on campus, then the University should not expect the government to fund this obstruction. Unless the professors can prove that the Solomon Amendment is forcing them to violate the Constitution, which they cannot, they will have no case.
In addition to the general anti-military sentiment that is so prevalent on this campus, now one may be labeled a “homophobe” if he merely wants to discuss job opportunities with a military recruiter in a law school classroom. Case in point: only one student signed up to meet with the JAG recruiter last week and that appointment was eventually cancelled.
From a tactical perspective, preventing military recruiters from meeting with students will not change the military’s anti-gay policy and those advocates who so self-righteously believe that they are having an impact on this issue greatly exaggerate their own importance. If gay advocates ever wish to change the military’s unconscionable policy, they would be well-advised to encourage, and not hamper, military recruitment at a socially progressive campus such as Yale. Gay writer Paul Varnell wrote earlier this year in the Chicago Free Press that banning Reserve Officer Training Corps (ROTC) programs on campus, which Professor Donald Kagan said was “a stain on our record,” has forestalled the revocation of “Don’t Ask, Don’t Tell,” by discouraging those very heterosexuals who oppose the policy from joining the armed forces. “In short,” he writes, “the effect of banishing ROTC and military recruiting by the most liberal, gay-accepting colleges and universities was to increase the proportion of recruits and young officers who are less accepting of gays, whose college experience was unlikely to counter negative views of gays, and who do not want gays in the military.” While claiming to be leading the fight for gay equality by snubbing their noses at the military, sympathizers of the gay cause are actually harming the movement’s prospects.
It pains me to no end that a country that preaches equality has not fully accepted many of its own citizens into the fold. It is maddening that one of the greatest national institutions is not open to me simply because of who I am. But it would be selfish and self-aggrandizing to let my personal disagreement with the military’s unfair policies get in the way of my peers who wish to seek information about serving their country. If the University itself were to join this lawsuit, an institution that touts its duty to produce public leaders would be thwarting that very ideal.
James Kirchick is a sophomore in Pierson College.