As associate dean at a state law school, I receive promotional materials from numerous other law schools. Usually they go straight into the trashcan, but I was on my way to the airport for a long flight, and the cover of the spring/summer 2006 issue of BC Law Magazine, published by Jesuit-affiliated Boston College, caught my attention. The article was titled “The Untold Story of Rumsfeld v. FAIR,” and the title page promised to tell how students and faculty members at BC Law School “helped make a federal case out of the Solomon Amendment.”
First, a bit of background on the Solomon Amendment: For many years now, most (probably all) law schools have had “non-discrimination” policies. Among other things, these policies usually prohibit potential employers from interviewing students on-campus if those employers discriminate on the basis of race, sex, creed, color, religion, or national origin. In the early 1980s, some schools added sexual orientation to that list. The BC Law Magazine article noted that Boston College was one of the first schools to add this provision when it did so in 1982.
In 1990, the Association of American Law Schools (AALS), an important accrediting agency for law schools, required all of its members to add sexual orientation to their nondiscrimination policies. Of course, this meant that in order to satisfy the AALS, law schools had to adopt policies that came into direct conflict with the military’s stand on homosexuality. Regardless of what faculty members actually thought, they were forced to exclude military recruiters if they wanted their schools to be accredited. Despite the difficulty that this might pose to students seeking employment, virtually all law schools capitulated.
The inability of military recruiters to recruit on-campus created problems not only for students, but also for the military. As a result, Congress passed the first version of the Solomon Amendment in 1995, which said that law schools that excluded military recruiters from campus put their Department of Defense funding at risk. The following year, Congress extended Solomon’s reach to other federal funding, including money for student financial aid.
Technically, law schools were required to keep military recruiters off campus or lose their AALS accreditation. On the other hand, schools that kept the military away could lose their funding and endanger their students’ financial aid. The AALS did not change its rules, but in light of the Solomon Amendment it permitted law schools to satisfy their obligations by doing things like posting signs noting their objection to the military’s policy on homosexuals and giving students an opportunity to complain if they were dis-criminated against.
BC Law Magazine reports that “with help from [openly homosexual] US Representative Barney Frank (D-MA), student activists at BC Law led a national letter-writing campaign that caused Congress to wipe the denial of federal student aid funding off the books in 1999.”
About that same time, BC Law’s interim dean James Rogers formed a committee to determine whether there was some way to “minimally comply” with the Solomon Amendment. Soon thereafter, BC Law started discriminating against—but not barring—military recruiters. According to BC Law Magazine, BC Law’s minimal compliance policy meant “no access for the military to the resources of the Law School’s career services office; military recruiting pamphlets allowed only in the library; interviews booked through the dean’s office only; no more free diet Sprites and chocolate chip cookies for recruiters; no screening resumes at career services.” In short, the military received access to students but without the convenience or respectful treatment that other employers were accorded.
In 2002, the Air Force sent BC Law a letter objecting to its minimal compliance and warning that unless matters changed, federal funding would be cut off, not just to the law school but to all of Boston College. On September 9, 2002, BC Law faculty suspended the nondiscrimination policy with respect to sexual orientation.
Soon, “a couple of dozen” BC Law students banded together to form the Coalition for Equality. Eventually, four of those students approached Professor Kent Greenfield and asked him to teach a course on the Solomon Amendment. He agreed, and the class produced a 70-page legal memorandum analyzing possible legal claims against the amendment. The students presented their work to the faculty, but the faculty declined to reinstate the nondiscrimination policy as applied to sexual orientation.
Neither the AALS nor any individual law school was interested in challenging the law in court. With no plaintiff, there would be no lawsuit, but eventually Greenfield decided to form his own organization that could file suit. According to Greenfield, “While on a phone call, I mentioned to Josh [Rosenkranz, later to become lead counsel in Rumsfeld v. FAIR], why don’t we just create our own association?” That is exactly what they did.
Greenfield and Rosenkranz named the association the Forum for Academic and Individual Rights (FAIR). Interestingly, they structured FAIR so that law schools, faculty, and student groups could join anonymously. In fact, BC Law has never officially disclosed whether it, as an institution, joined FAIR. FAIR’s members do, however, include the law faculties of four Catholic universities: DePaul, Fordham, Georgetown, and San Francisco. Georgetown also hosts FAIR’s Web site. Professors from Georgetown and Boston College sit on FAIR’S board of directors.
FAIR filed suit in federal court as the named plaintiff. Joining FAIR was the Society of American Law Teachers (SALT). Greenfield chairs the SALT committee on homosexual issues. The BC Law student group Coalition for Equality was also a plaintiff. The plaintiffs were supported by other groups, including the ACLU, the (pro-abortion) Center for Reproductive Rights, the National Organization for Women, the (pro-euthanasia/assisted suicide) Compassion in Dying Foundation, and the National Lesbian and Gay Law Association.
FAIR’s attorneys knew that the logical constitutional claim would be that the Solomon Amendment violated equal protection. They also, however, knew that sexual preference has not been recognized as a suspect class, and that such a claim would therefore fail. Accordingly, they came up with the theory that the Solomon Amendment violated their First Amendment rights to free speech and free association. In other words, they argued that, since funding was conditioned on allowing military recruiters on campus, law schools were deprived of the right to voice their protest of the military’s policy by means of barring the military from campus, and they were forced to associate with the military recruiters.
FAIR’s argument was rejected by the trial court, but the court of appeals reversed, holding that the Solomon Amendment was unconstitutional. The Supreme Court agreed to hear the case, and numerous parties filed briefs in support of one side or the other. Most interesting, considering the First Amendment claim set forth by FAIR, was one filed by a group of law students who said they were “deeply concerned that the decision below is inconsistent with their academic freedom to hear expressions of view and offers of employment without restrictions imposed by the views of the law school administration and faculty.”
One group of about 30 law professors (including this author) signed a brief in support of the Solomon Amendment. This effort was driven primarily by professors at George Mason University, but professors from the University of Virginia, the University of Texas, Boston University, George Washington University, Northwestern University, the University of California at Berkeley, and other schools signed the brief. Unfortunately, only one professor from a Catholic law school signed it. Students from Catholic University, DePaul, and Georgetown did, however, sign it.
BC Law Magazine reports that on the day of oral arguments, a contingent of BC Law students, professors, and alumni made their way to the court. Greenfield even brought his seven-and-a-half-year-old son, explaining: “Gay rights is the most pressing civil rights issue of our day. When my son asks me fifty years from now what did you do in that civil rights movement, I want to have a good answer.”
The court unanimously rejected FAIR’s argument. Moreover, as the BC Law Magazine reported, “the justices were not gentle” at the oral arguments. Perhaps there was some consolation to BC Law professor and former law dean James Rogers when he won the National Lesbian and Gay Law Association’s “Allies for Justice Award” for his opposition to the Solomon Amendment.
For Catholics, of course, this case as more than a fight over the First Amendment. It was evidence of the secularization that has taken place at several of America’s Catholic law schools. The Cardinal Newman Society, a national organization dedicated to renewing Catholic identity at Catholic colleges and universities, led a protest against the involvement of professors from Catholic law schools. Retired Rear Admiral Jeremiah Denton, head of the Newman Society’s protest, wrote: “Tragically, some of our Catholic law school deans and professors seek to undermine both Catholic morality and the integrity of the U.S. military.” Patrick Reilly, president of the Cardinal Newman Society, said, “These professors are using their positions at Catholic law schools to pressure our military to turn a blind eye to homosexual promiscuity, in direct contradiction to Catholic teaching. . This is an insult to God and country, and it further undermines Catholic education.”
That, of course, is the great irony of this case. Professors from Catholic law schools led the challenge against the Solomon Amendment, but the Catholic Church itself can be said to discriminate against homosexuals.
The New Testament says that “the unjust will not inherit the kingdom of God . . . Neither fornicators nor idolaters nor adulterers nor boy prostitutes nor sodomites nor thieves . . . will inherit the kingdom of God” (1 Cor 6:9-10). The Catholic Church distinguishes between the person and the act, holding that people who are attracted to the same sex must be treated “with respect, compassion, and delicacy,” but that homosexual- acts are “grave sins” that cannot be justified. Moreover, the mere inclination can be disqualifying in some cases. Thus, if a candidate for the priesthood “practices homosexuality, or presents deep-seated homosexual tendencies, his spiritual director as well as his confessor have the duty to dissuade him in conscience from proceeding towards ordination” (Instruction Concerning the Criteria for the Discernment of Vocations with Regard to Persons with Homosexual Tendencies in View of Their Admission to the Seminary and to Holy Orders, November 4, 2005).
Just last year, Renato Cardinal Martino, head of the Pontifical Council for Justice and Peace, warned of the danger posed to Western society by laws that recognize homosexual unions. He called the enactment of such laws an “ugly turn” and cautioned that “Western society is on a slippery slope. The sense of God is being blurred.” The cardinal had an official 2003 Vatican statement on the topic to back him.
Because of teachings like these, the Catholic Church is frequently targeted by gay-rights activists. To them, the Vatican’s policies seem closer to those of the military than to those mandated by the AALS.
This, of course, raises the uncomfortable question: If the Holy See wanted to interview law students to hire someone into, say, its diplomatic corps, would Boston College, DePaul, Fordham, Georgetown, or San Francisco permit Vatican recruiters—who would not be protected by the Solomon Amendment—on campus? If so, why? If not, why do they maintain ties with the Catholic Church?