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December 06, 2005



"Congress unfortunately has the right to attach conditions to federal funding..."

Not when it violates the so-called "unconstitutional conditions doctrine" -- you might want to Google it.


Yeah, I read about that while skimming over snippets from the hearing. It's a fine attempt, but ultimately a useless one. The issue at stake is whether or not allowing military recruiters on campus is a violation of speech.

Which is such a stretch, it boggles the imagination. As Chief Justice Roberts (I think) said during the hearing "The university can simply post notice of their opposition to the military's policy."

Yum Yum

What about the military's freedom of speech? Why does the government have to be on the defensive about not violating the university's freedom of speech, when clearly it's the university that is violating the government's right to talk to potential recruits?


I clearly prefer when you blog about Jennifer Aniston.

Downtown Lad

Robbie - You're obviously not a lawyer, because you're talking legal mumble jumble here.

The Solomon Amendment completely contradicts the Dale v. Boyscouts ruling. New Jersey had an anti-discrimination lawsuit that included sexual orientation. You couldn't discriminate on hiring based on sexual orientation. The Boy Scouts sued and the Supreme Court said that if they were forced to hire a gay person it would force them to send a message that they tolerated gay people. The Supreme Court agreed with the Scouts.

Now you're basically saying that the government can force colleges to adopt a certain position with regards to gay people, i.e. that they colleges HAVE to support discrimination against gay people.

Why is one o.k. but not the other? It can't be funding, because of the unconstitutional conditions doctrine as Kip pointed out.

It's either one or the other. You can't have it both ways.

This is not a gay issue. It's a free speech issue. Unforutnately, you're coming down on the anti-free speech side. Such a shame.


There is a huge difference in the Boy Scouts ruling. The Boy Scouts are a private organization with freedom of association. When the Supreme Court ruled on that issue, many state and local governments rescinded public funding in order to reflect anti-discrimination laws. That was the proper course of action, IMO. The Boys Scouts can discriminate as much as they want, but the tax-payers shouldn't be footing any of their bills.

In this instance, it's an almost inverse situation. Colleges and universities can believe whatever they like. They do not have to take federal funds. They make a choice in accepting those funds. You say it falls under the unconstitutional conditions doctrine because their free speech is abridged.

There is nothing in the Solomon amendment that prevents universities from speaking out, posting notice, and making known their opposition to current military policy. They do not have to promote the military, they simply have to provide access as a condition of receiving the funds. They are not required to take a specific political opposition. They are not obligated to agree with the military.

This shouldn't have been a gay issue, but the usual suspects went along with the usual anti-military types, and now what is today's headlines? Gay rights battle over barring military recruiters.

In the middle of a war.

There's some brilliant press for the gay rights movement. These people have no common sense. And again, if these universities were so gung ho about gay rights in the first place, they'd put their money where their mouths are. But they won't. They never do.

Yet again, gay rights activists have been duped into doing the left's dirty work and we're going to get all the fall out.

If today's hearings proved anything, it's that the Court is going to back Congress on this one. The colleges will drop the matter entire, and the gay rights movement will be twisting in the wind, with all that brilliant anti-military press.

Awesome. So worth it.

Downtown Lad

Why don't you get your facts straight. The Solomon Amendment was adopted in 1994, NOT in the middle of the war. It came about when Don't Ask Don't Tell was a big issue, and the aim of Congress was to make sure that colleges were NOT seen as endorsing gay rights.

Colleges have a non-discrimination policy when it comes to recruiters. That applies to ALL companies, not just the military. And the government is now telling them that they CANNOT have those policies.

In other words, the government can't force you to be nice to gays. But it CAN force you to be mean to gays.

What's next? Telling colleges that if they offer a course on gay rights that all funding can be removed? Telling colleges that if they accept any gay applicants, that all funding can be removed? Please explain by your logic, why that shouldn't be allowed? Hey - it's just funding, right?

Like I said - you are now on the side of an oppressive governemnt, and against free-speech. Just like you're on the side of torture. Bravo.


Why don't you read what I wrote. Where did I say the Solomon Amendment was passed recently? I'm well aware of when it passed. If you're going to take a shitty, faux-superior tone with me, it might be a thought to pay attention.

Congress cannot force colleges to be anything to gays. They don't have to take the money. What is so difficult about the concept? Not only that, but the military is not an instrument of the colleges. Yes, the military is mean to gays, but that does not mean the college approves or endorses it. In fact, should they choose to take the money, colleges may explicitly post their own policy, opinion, and even allow student demonstrations in protest.

Freedom of speech is about choices and speaking out. That's quite alive and well in this instance.

What the colleges want is not to make any choice. They want cost-free support for gay rights. In a perfect world, we'd have that. We don't right now. What marks the character of a person or an organization is the choices they make when it costs them something. We've seen the kinds of choices universities like Harvard have made.

You're arguing this strange, nazi-esque slippery slope. Interesting hypotheticals, but they'd never happen.

When organizations accept government funds, they risk government interference. That is one reason I could not for the life of me understand why religious organizations were so gung-ho for the Faith Based Initiatives. Jesus Christ, I don't want those two organizations anywhere near each other, much less throwing money back and forth.

But going back to the gay thing, it is a transparent tool of campus anti-military types. When Don't Ask Don't Tell is abolished (and I believe it will be sooner rather than later), what other freedom of speech issues do you think will crop up in its place? If a college opposes a war, can it bar military recruiters? Do we still have to give them federal funds? What if they object to, say, the use of white phosphorus. All free speech, no? And they're always entitled to federal funding no matter what their opinion is on any matter?

P.S. - I'm on the side of torture? I don't think I've ever written a post on the subject, or even in comments anywhere.

Someone's projecting.

Downtown Lad

You obviously DON'T understand the "unconstitutional conditions doctrine" despite your claim of having read about it. Congress cannot use funding to force a college to take a particular viewpoint, which is EXACTLY what they are doing here.

And you show ZERO knowledge of the Dale case. One could argue that the Boy Scouts could still make it very clear that they hate gay people, even if they couldn't discriminate against them in hiring. After all - they could post press releases about how gay people are scum, or they can have marches and chant "gays suck", etc. But the Supreme Court found that just by having a gay person on their staff, that alone would violate their right to free expression. So they found the New Jersey anti-discrimination clause unconsitutional.

It's the same thing with Solomon. How can colleges show that they don't let recruiters come on campus if those employers don't have anti-discrimination clauses, if they are forced to allow the army to recruit, which clearly discriminates against gay people???

Again - study the "unconstitutional conditions doctrine", because your arguments make zero sense. Even the government acknowledge that they can't use funding to force colleges to take a certain viewpoint.


It's not only about Free Speech, it's also about Freedom of Association. These colleges and universities do not want to be associated with an organization, government or otherwise, that blatantly discriminates. Period. The military's position of DADT is a dreadful form of blatant discrimination, and no organization should be coerced into having the voice of discrimination heard. The funding issue is nonsense. The Government funds hospitals that refuse to do abortions, is a single case in point. Still, these hospitals take government money, and the government does not protest or threaten them. But when it comes to gays, it appears that THIS government seems to think it is entitled to discrimination as well as being the discriminator. Bull pucky. First of all, it's not the "government's" money, it's the taxpayers'. As a taxpayer, I don't want my monies used for discriminatory practices. If other taxpayers do, then they can go to court and see if "their special exemption" to discrimination holds.

Felipe Campos

I think your attitude is patronizing of gay people who are opposed to military recruiting on campus. Duped. What if they were not duped? What if the gay people willfully support the left in this endeavor?
At the University of Texas, no organization is allowed to be on campus that supports discrimination. This is regardless of war or not and has existed before Bush Jr was even president.
I agree, too, that if we make our bed, we lay in it. So if we chose to bar military recruiting on campus and are thus ineligible to receive federal aid, well that's the breaks.
I also disagree with yourimplied attitude where you say "Cementing gay rights as a left-wing cause is a dangerous tactic in a country that is far more conservative and Republican than its western counterparts". Yes it is dangerous. But it sounds to me that what you're saying here is, don't rock the boat because our country is conservative. If we followed that reasoning, we'd all be still in the closet.
I'm not completely oblivious to what part of your intent here is. Consider the cases with Roe v Wade and Lawrence v Texas. While both share issues of rights to privacy, it is a serious mistake to assume that because they share similar issues, that Gay people would also support Pro-choice.
eh, enough of my 2 cents.

Downtown Lad

Exactly Stephen. I agree with the Dale v. Boy Scouts decision by the way. I am horrified when the government tries to dictate who somebody should associate with and what they should say.

I fear the day when taxation goes to 100% and the government says that they will only give out food and housing to people who do what they say. Which Robbie would obviously think is perfectly constitutional.

Here's more on the unconstitutional conditions clause.

"The Doctrine of Unconstitutional Conditions prevents a state from imposing a condition that is unrelated to the purpose to be furthered. If the government conditions the use or regulation of an owner’s property on the receipt of a public benefit, the government must compensate the owner unless:
1) There is an essential nexus between the legitimate state interest and the condition; and
2) The nature and extent of the condition are roughly proportional to the harm prevented by the regulation.

For example:
1) A school may not discharge a teacher for exercising his First Amendment right to free speech. Pickering v. Board of Education, 391 U.S. 563 (1968).
2) A state may not refuse to pay unemployment benefits to a Seventh Day Adventist who rejects a job that requires he to work on Saturdays. Sherbert v. Verner, 374 U.S. 398 (1963)."


Downtown Lad

And if calling Sullivan's site "torture.com" everytime you refer to him is not a wink and a nod at condoning torture, then I don't know what is.

I'm so glad I don't have to sell my soul for a political ideology.


DL, they are not forcing the colleges to take a viewpoint. Read this report on today's hearings. Pay particular attention to the Solicitor General's remarks on the extent of speech given to colleges in opposing miliary recruitment.


The Supreme Court's vote on this issue is not even going to be close. You may think I'm retarded when it comes to arguing over constitutional issues, but I'm pretty sure six or seven Supreme Court justices are about to side with me on this one.

Argue about it all you like, but when the decision comes down, in arguments where you couldn't even get the moderate justices on board, well, gay rights activists are going to look stupid, and they just burned a shitload of political capital in doing it. But please do let me know why this was such a brilliant idea.

Stephen - I hate the idea of DADT. I think it is one of stupidest policies to come down the pike in a long, long time. The issue of Arabic translators alone is proof enough of how ill-conceived and backwards the politicians and military officers were in supporting it.

However, when it comes to government funds, organizations are not automatically entitled. One of the major arguments in today's proceedings was how much speech is involved in government funding. If they can object to DADT, can they object to a war? Women on the front-lines? What else?

This would open the door to a variety of free speech issues on federal funding that would create absolute chaos in the allocation of funds in areas all through government and society. From that article:

Other Justices, while making somewhat more nuanced comments, seemed to be troubled by the prospect that a major First Amendment ruling in favor of the law schools would open the way for individuals to resist obeying all kinds of laws -- including federal anti-discrimination laws -- by claiming their refusal to obey was a matter of their beliefs or conscience

This is my big problem with a lot of the gay rights movement. I want equal rights. I want marriage, the whole deal. But how we get it is important. Just because something might be good for us personally (i.e. the Court striking down the Solomon Amendment) does not justify swinging a wrecking ball at various pillars of constitutional law that don't suit us.

That is why it is more important than ever to work on electing gay-friendly politicans to office, rather than dragging every little issue through the courts. Courts can do an awful lot of damage when they have a mind to, as we saw in the recent Kelo decision. The legislature can pass abominable measures, yet still have them be legal and constitutional. That is why it is so vital we focus on the legislators, to eliminate the legislation rather than reorder the constitution to whatever we feel like it should be this week.

Downtown Lad

You're contradicting yourself again.

Kelo? So what did you want the courts do here. Please do tell. Did you want the courts to STRIKE DOWN a locally passed ordinance? Do you realize the courts actually did NOTHING in Kelo, except let the local ordinance stand.

Did you want the courts to be ACTIVIST?

At least be consistent Robbie.


Felipe - I think gay rights are being used by the anti-military movement. As I said, when DADT is eliminated, we won't see opposition to military recruiters wane. As justices in today's hearing noted, many people will simply find another excuse to oppose recruitment.

I'm not saying gay rights advocates shouldn't rock the boat. I'm saying they should be very, very careful about the causes they attach themselves to. I'm advocating they pick their battles more carefully.

Also, Felipe, the gay rights movement is very much marrying itself to the abortion movement. We've posted about that on the site at length. The Human Rights Campaign is often releasing statements in support of abortion, and a major figure in the LCR recently left that organization to take a position with Planned Parenthood.

Those are the kinds of maneuvers I think are just awful in a country as conservative as ours. When we're trying to get people to realize homosexuals *are* mainstream individuals just like everyone else, they see these activists attached to every left-wing cause under the sun like a twisted group of political lampreys. It does us no favors at all.

Downtown Lad

If they can object to DADT, can they object to a war? Women on the front-lines? What else?

Ummm, yeah. Isn't that what free speech is all about?

I don't care what the justices say. It's not hard to pack the court with government loving, anti-freedom justices.

When the government starts dictating the speech, association, and LIBERTY of private individuals and organizations - I have a major problem with that.


DL - I do not have the time nor the inclination to bother about you this afternoon. Watching you set up and strike down strawmen is fairly interesting for the first five minutes, but then the fascination begins to wane. You can twist, bend, assert, and do whatever ya like - especially as it generally has absolutely nothing to do with what I'm actually saying. Get down with your bad self.

But don't you have anywhere else you need to be trolling this afternoon?

Note - tonguie-in-cheek torture.com is now full-fledged support? Awesome. I think we were just poking at Sullivan a bit. But I'll let Mal know. He'll be surprised, I think.


You claim you're a libertarian, DL. You should be happy that organizations can divest themselves of government interference and not rely on government funding.

Interesting that you're not.

Downtown Lad

When we're trying to get people to realize homosexuals *are* mainstream individuals just like everyone else, they see these activists attached to every left-wing cause under the sun like a twisted group of political lampreys. It does us no favors at all.
I prefer to be called "gay", not "homosexual" thank you very much. Again - please explain when free-speech became a "left-wing" cause?

I'll support the military, but not at the expense of liberty and freedom.

Downtown Lad

DL - I do not have the time nor the inclination to bother about you this afternoon.

In other words, you've lost the argument.

You claim you're a libertarian, DL. You should be happy that organizations can divest themselves of government interference and not rely on government funding.
It's my money, not the governments. A libertarian doesn't want the government funding to exist, but that would involve taxes being eliminated in the meantime as well. But as long as the government is taxing me, there is nothing hypocritical about taking that money back via government funding. But that doesn't mean I lose my freedoms as a result of that. Just because I'll collect Social Security one day, doesn't mean I have to conform my speech and association patterns to what the government says.

Downtown Lad

I love how "conservatives" always roll out the "trolling" argument when somebody makes points that they disagree with.

Again - it is so sad how far the "conservatives" have fallent that they can't even engage in a proper discussion.

No wonder they listen to FOX News. That way, they don't actually have to think.

How sad. I expect better of you Robbie, I really do.


"What if the gay people willfully support the left in this endeavor?"

the gay people?? what the fuck is that supposed to mean? am i NOT gay because i think anti-military leftist assholes are full of shit? apparently. i still suck a mean dick though.

this most certianly is a free speech issue, but it is the military recruiters that are being denied it, not the universities. and the only torture involved in this discussion is that being inflicted upon logic and the english language by some of the posters here. let me see if i'm getting this straight:

college students are empty vessels, so blank and stupid that they have absolutely no reasoning capacity of their own with which to decide the fate of the rest of their lives. this is the implied foundation of the argument that allowing recruiters on campus somehow FORCES universities to condone gay discrimination. free speech, in some perverse lefty Orwellian world, actually means refusing to allow the government to lay out their case for joining the military. after all, some of these poor braindead idiots on campus might actually be tricked into thinking joining the military is good idea!!

obviously, recruiters only belong in the ghettoes of our urban centers, plucking desperate black and hispanic kids off of the street so that the left can whine and bitch that we send only the lowest economic bracket to war.

this case has nothing to do with the Boy Scout case, nothing to do with gay rights, and everything to do with the further marginalization of any gay voice that doesn't follow lockstep in the path of the most radical and unsavory elements of the ideological spectrum.



Aatom - Marry me?


DL - Stop trying to taunt me on my own blog. We're not in fourth grade. I've made it abundantly clear here and elsewhere how I feel about your unique style of "argument."

And, I don't actually watch Fox News. I don't even watch cable news in general. Nor listen to talk radio. I'm not a very good proto-fascist, I guess. *sighs*

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