In 1954, the Supreme Court ruled in Brown v. Board of Education that racial segregation in public schools was unconstitutional. Central High School in Little Rock, Ark. was forcibly integrated three years later, and by the 1960s, the era popularly known as the Civil Rights movement was in full steam.
The famous Brown decision did not emerge out of a vacuum. Rather, it was another part of a civil rights movement that actually began in the 1930s.
As the fight for homosexual rights gains national attention and the Judge Advocate General’s Corps controversy plays out on the Yale campus, it is important to recognize the similarities of this fight for equality and justice with the one that captured the national spotlight a half century ago.
The NAACP brought three cases in front of the Supreme Court between 1935 and 1946 arguing on behalf of black students who were rejected from various state-sponsored law schools because of the color of their skin. Yet none of these cases, unlike Brown, challenged the “separate but equal” Supreme Court ruling of 1896 that legalized segregation. Rather, they simply asked that the “separate but equal” clause be enforced; since these law schools did not have separate and equal black law schools, the National Association for the Advancement of Colored People argued — and the Supreme Court concurred — that these law schools would have to integrate. By taking small steps at first, African Americans set precedents that later allowed them to achieve more radical victories in the 1950s and 60s.
Gay rights activists have already learned that their best hopes are in the courts, not in Congress. When Vermont passed the country’s first law permitting civil unions, it was only after the state’s Supreme Court ordered that such legislation be passed. This past summer, the U.S. Supreme Court struck down or severely limited archaic anti-sodomy laws that were on the books in 13 states. And even when Canada, our liberal northern neighbor, became the third country in the world to legalize gay marriage, it was only after the Ontario Court of Appeals, the British Columbia Court of Appeals and the Quebec Superior Court all ruled that the prohibition against same-sex marriage was unconstitutional.
Most recently, the national fight for gay rights has come to the Yale as military recruiters for the Judge Advocate General’s Corps clash with Law School administration, professors and students. But in the last two years, the Bush administration started to enforce a little known provision that was passed under Newt Gingrich’s guidance — the 1995 Solomon Amendment — which says that any institution that receives federal funding must allow recruiters on campus. Last year, Yale’s and the nation’s other top law schools were threatened to either let the recruiters participate in the on-campus interviewing program, where they had previously been barred, or risk losing all federal funding — a whopping $350 million in Yale’s case.
Last Thursday, more than half of the professors at the Law School, including Law School Dean Anthony Kronman, filed a suit claiming that the Solomon Amendment violates professors’ First Amendment rights. The lawsuit implies that the Law School cannot be bullied into allowing military recruiters, who discriminate against certain Yale students, onto campus.
This case might focus on a minor amendment that applies only indirectly to the controversial “don’t ask, don’t tell” policy. Nevertheless, it represents an important civil rights issue that cannot be trivialized.
The Yale professors who have joined their colleagues around the nation in suing the Department of Defense should be commended for the legal precedent they are trying to set. The Law School has, in the past, been a leader in gay rights issues, beginning in 1978 when it was one of the first to include gays in its nondiscrimination policy. Yale should step up and throw its weight behind the suit as well. The University would be much more affected by a loss in federal funding than the Law School would be. While this means that it does risk more in filing the suit, its national stature would thrust the issue into the spotlight.
In the short run, any lawsuit that questions the constitutionality of the Solomon Amendment only focuses on whether it is an appropriate and legal application of the “don’t ask, don’t tell” policy. But in questioning the applications of the policy, the plaintiffs are also inherently questioning the policy itself — just as the NAACP did 50 years ago.
If they win the suit, the law professors will put the judicial branch on record on the military’s policies on homosexuality. While not even a victory would end this institutionalized practice of military discrimination, it would set a much needed tone of tolerance and acceptance of homosexuals as activists prepare to fight the more difficult battles that undoubtedly lie ahead.
Alissa Stollwerk is a sophomore in Saybrook College.