 |
|
 |
|
 |
|
 |
|||||||||||||||||||||||||||
|
Generally, I think that a person's sexual orientation is none of the government's business. There are decent pragmatic arguments for why the military is different; and these arguments might be right, though I'm not expert enough to tell. But let's stipulate for now that the military is wrong to discriminate against gays, and that patriotic gays should be fully welcomed by the military, rather than being told that they must conceal their preferences or risk discharge.
So what? So the military is wrong — why should law schools therefore exclude the military from recruiting? Many excluded the military before the government threatened to withdraw federal funds from them; and many faculty members would like to do this even now. But why? Some boycotts are purely instrumental: They aim to make things costly for some entity, so that the entity changes its ways to avoid those costs. But surely this isn't the issue here. If the military changes its policy, it won't be because they're having a slightly harder time recruiting lawyers; the boycott just can't make that sort of practical difference. What's more, officers coming from (say) Yale Law School would likely be more tolerant of homosexuality than the average officer. As a purely practical matter, discouraging Yalies from joining the military may make the military slightly less gay-rights-friendly. So, of, course the boycott isn't really about practical questions — it's about morality and symbolism. Even if our boycott will be completely ineffective, the theory goes, it's still the right thing to do: The military's recruitment policies are wrong, so we must refuse to help the military recruit. And here is where we come to perspective. Let's assume the military's discriminatory practices are bad. But isn't the military also doing something good? The military, after all, protects all of us — straight and gay — from foreign attack. That's pretty good. All the rights we have, we have because members of the military have bled to protect them. That's pretty good. During World War II, the American military was racially segregated, which was bad. But it defeated Japan and helped defeat Hitler, which was good. Perspective is what tells us that the good the military does vastly exceeds the badness of its discriminatory practices. So as a moral matter, excluding the military isn't just remaining pure of complicity with discrimination. Rather, it's remaining pure by shunning the institution that protects our liberty, our equality, and our lives from forces far worse than "Don't Ask, Don't Tell" can ever be. And as a matter of symbolism, the symbolic message isn't "We detest discrimination." Rather, it's "Discrimination is so bad that we must wash our hands of the military, in spite of all the good the military does." The boycotters have weighed the military in the balance, and they have found that on balance it should be excluded, rather than included. The symbolism of that is pretty clear. Only a sense of perspective, a mental view of the relative importance of things, can keep one from making this mistake. Equal treatment without regard to sexual orientation may be important. But what our soldiers, organized into a fighting force, do to defend us is far more important. If that's so, then you can't treat the military as a pariah, focusing on its small error and not on its great virtue. When I've made this argument before, some people have responded "Well, we wouldn't let a law firm interview if it discriminated against gays; why should we let the military do so?" Yup, that's right, the military, it's just another bigoted law firm. Jones & Smith, the U.S. Army, same difference. That's what the logic of antidiscrimination-above-all tells us. But perspective reminds us that those institutions that defend our lives deserve slightly more accommodation — yes, even despite what we may see as their vices — than institutions that don't. And any morality and any symbolism that fails to keep this proper perspective is not a morality or symbolism to live by. — Eugene Volokh teaches First Amendment law at UCLA School of Law. |
|
|
|
|||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||
<% dim printurl
printurl = Request.ServerVariables("URL")%>
erspective,"
my New Shorter Oxford Dictionary says, is "a mental view of the relative
importance" of things. The debate about whether law schools should
exclude the military from interviewing on campus is ultimately not about
gay rights. It's about perspective.
