Since gay marriage is continuing to dominate the headlines, and 'don't ask, don't tell' seems likely to continue for the near future, I thought I'd comment on one of the more insidious side effects of our government's failure to sanction equal rights for persons of all sexual orientations. Remember as you read that this isn't a failure to protect gays and lesbians from discrimination, it's an outright discriminatory practice sanctioned by the United States Congress.
The story begins with the
American Association of Law Schools. In 1990, several years before 'don't ask, don't tell', the AALS amended their Bylaw 6-4 concerning diversity to include sexual orientation. Bylaw 6-4(b) provides that this nondiscrimination as to sexual orientation applies to employers who wish to recruit at AALS member schools.
A member school shall pursue a policy of providing its students and graduates with equal opportunity to obtain employment, without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, handicap or disability, or sexual orientation. A member school shall communicate to each employer to whom it furnishes assistance and facilities for interviewing and other placement functions the school's firm expectation that the employer will observe the principle of equal opportunity.However, after the passage of 'don't ask, don't tell' in 1993, the federal government's policy with regards to sexual orientation and the military and the AALS's commitment to nondiscrimination clashed. In 1995, the first Solomon Amendment was passed, prohibiting Dept. of Defense funds from being given by grant or contract to any institution of higher learning that prohibited military recruiting for any purpose. With minor modifications over the intervening years to expand its reach to include federal funds from a number of departments, including Education, Health and Human Services, etc., the conflict was clear.
Either our nation's law schools would admit an employer (the United States Armed Forces) that openly discriminates against individuals on the basis of their sexual orientation, or the universities with which these law schools were associated would face the risk of losing almost all federal funding for research, scholarships and financial aid, and whatever other purposes federal money is used at university campuses nationwide.
The Georgetown University Law Center has set up a
wonderful site with all the technical details surrounding this issue and information about pending litigation where schools, including Penn and Yale, have brought suit against the Department of Defense on this issue.
Subsequently, most law schools caved to the pressure, and began admitting military recruiters to their campuses for interviews with students hoping to join the JAG corps. The bottom line is a step backwards for equal protection. The quote below is from the top of the Georgetown page. It certainly fits:
The drafters of the Constitution] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Justice Anthony Kennedy, Lawrence v. Texas, June 26, 2003