Following the Supreme Court's decision last year that it is unconstitutional to punish homosexual sex, it would seem clear that our armed forces must reconsider their absurd policy regarding homosexuality. "Don't ask, don't tell" is an invitation to hypocrisy at best and extortion at worst. It bears absolutely no relationship to military goals, as evidenced by the fact that Israel's army-widely considered among the best in the world on a person-for-person basis-has no prohibition on being gay and indeed has openly gay officers, even high-ranking ones. A soldier's sexual preference or orientation is neither a qualification nor disqualification for service in the armed forces. "Don't ask, don't tell" was a political compromise with simple bigotry. Those who argue that heterosexuals will feel uncomfortable fighting alongside homosexuals must recall that precisely the same argument was made about blacks fighting alongside whites and women alongside men.
Today's army is integrated with regard to race and is moving in the right direction with regard to gender (although it's not there yet). We will someday have women and gays in positions of high authority, just as we've had blacks and at least one Muslim. I remember when baseball had no blacks, and we all thought the white players were pretty good because they didn't have to compete with the entire universe of great baseball players. Our heterosexual army (or at least our openly heterosexual army) will only get better when it stops discriminating against so many who might help improve it. It is self-defeating for any institution to limit the qualified people it is willing to accept.
Even the implausible arguments now raised against gays in the fighting forces can't be offered with a straight face against openly gay lawyers in the Judge Advocate General Corps. JAG officers live in their own homes and practice their profession in offices. Their private lives are as private as any lawyer's. Yet JAG recruiters come to Harvard and other law schools and essentially put up a "straights only" sign on the doors of the rooms in which they recruit. The time has come for law schools to take a principled stand against this lingering bigotry. It won't be easy, because the federal government has threatened to cut off funding to any university that restricts JAG recruiting. But the Supreme Court's decision gives law schools new ammunition. I have urged Harvard Law School to file a declaratory judgment action seeking a ruling that it would be unconstitutional to cut off funding to Harvard University, or any other school, for that matter, if the law school applies its anti-discrimination policies to all recruiting, including JAG.
No one can be absolutely certain how such a case would be decided, but the university has little to lose (aside from some legal fees) and much to gain in seeking to do the right thing by its students. After all, we teach our students about the evils of bigotry. We would never allow law firms that discriminated on the basis of race, gender, religion, or sexual orientation to use our recruiting facilities. Yet we have been extorted into allowing one law firm-JAG-to be exempted from our anti-discrimination policy. What lessons do we want our students to learn from our acquiescence in bigotry? That power trumps principle? That money prevails over merit? That we must accept the cynical political world without even trying to challenge it? That discrimination against gays is somehow more justified than discrimination against others? Those are not the lessons I try to teach my students. Some day future lawyers will look back at us with bemusement, even contempt, for remaining complicit with this last bigotry.
I entered law school in 1959, nearly half a century ago. I was first in my class and editor in chief of the law journal and yet I was turned down for a summer job by 32 out of the 32 Wall Street firms to which I applied. The reason I could not work on Wall Street, it soon became clear, was that I was an Eastern European Jew. I complained to my dean and asked him why firms that discriminated were allowed to recruit at Yale Law School. I will never forget his response: "These firms are our bread and butter. We have to take them as they are." The dean was himself Jewish, and I'm sure it pained him to have to accept the reality of bigotry. That particular bigotry ended soon thereafter, but others persisted: against African Americans, against women, against Hispanic Americans, and against gays and lesbians. Over the years most of these discriminations have abated, even in the Army. But discrimination against gays in the military, including JAG, persists. Until it ends, unequivocally and without compromise, we should not remain silent. As Edmund Burke said, "The only thing necessary for the triumph of evil is for good men [and women] to do nothing."
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