Kagan Called ‘Don’t Ask, Don’t Tell’ A ‘Moral Injustice of the First Order’
May 11, 2010 - 8:40 AMSolicitor General Elena Kagan, nominated by President Obama to replace retiring Supreme Court Justice John Paul Stevens, has called the military's ban on homosexuals 'a profound wrong' and 'a moral injustice of the first order.'
Kagan made the comments while serving as dean of Harvard Law School during the 2005 controversy over whether Congress could withhold federal funding from universities that discriminate against the military. Kagan joined a friend-of-the-court brief opposing the government.
“I abhor the military’s discriminatory recruitment policy,” Kagan wrote in an email to Harvard Law students on October 6, 2003. “This [policy] is a profound wrong – a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.”
The “discriminatory” policy Kagan opposes is a federal law, passed in 1993, that directs Congress to use its constitutional authority “to make rules for the government and regulation of the land and naval forces” to prohibit homosexuals from serving in the military.
Schools such as Harvard traditionally have used their non-discrimination policies to keep military recruiters off their campuses or, in the case of Harvard Law, to deny them the same official assistance given to other non-military recruiters.
In 2002, the Department of Defense decided to withhold federal funding from any university that denied official assistance to military recruiters.
The government cited the Solomon Amendment, which bars funding from any university that “prohibits, or in effect prevents” military recruiters from enjoying “access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.”
In 2004, the Third Circuit Court of Appeals ruled that the government could not withhold federal funds from universities that ban military recruiters from campus because of the prohibition on homosexuals.
Kagan, who filed an amicus brief in support of the universities, followed the Third Circuit Court’s lead and banned the military from receiving official support while recruiting at Harvard Law School, despite the fact that the case had been appealed to the Supreme Court.
In 2005, Kagan joined more than 40 other Harvard Law professors in arguing that the universities were not discriminating against the military because they applied their non-discrimination policies to all recruiters, not just the military.
“The Solomon Amendment only applies to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military,” Kagan et al wrote. “There is nothing inherently suspicious about those policies, their adoption, or their application to suggest that they may be pretexts to anti-military sentiment.”
Kagan’s argument was unanimously rejected by the Supreme Court, which ruled that universities could not discriminate against the military – either intentionally or unintentionally – if they hoped to continue receiving federal funds.
“Contrary to the argument of amici law professors [Kagan et al], a school excluding military recruiters could not comply with the Solomon Amendment by also excluding any other recruiter that violates its nondiscrimination policy,” Chief Justice Roberts wrote.
“Applying the same policy to all recruiters does not comply with the statute if it results in a greater level of access for other recruiters than for the military.”
After being rebuked by the Supreme Court, Kagan again told students that she personally opposed the legal ban on homosexual military service. Kagan said she looked forward to the day when the law would be repealed.
“As I have said before, I believe that policy is profoundly wrong — both unwise and unjust — and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services,” she said.
One 'no' vote
Kagan’s ban on military recruitment is part of the reason Sen. James Inhofe (R-Okla.) says he will vote against her confirmation.
Inhofe on Monday became the first U.S. senator to say he will oppose Kagan because of “her lack of judicial experience and her interpretation of the Constitution” as well as decisions she made as dean of Harvard Law School that “demonstrated poor judgment.”
Inhofe specifically mentioned Kagan joining the lawsuit to overturn the Solomon Amendment, which was adopted by Congress to ensure that schools could not deny military recruiters access to college campuses, as noted above.