Balkin on the FAIR decision

In an earlier posting, Betsy reprints an article from the Chronicle of Higher Education criticizing the law professors who filed a losing amicus brief in the Rumsfeld v. FAIR decision. For another view from one of the signers of the brief, see Jack Balkin's lengthy comment:

Even though the litigation did not choose a narrower theory that I preferred, and even though the theory it did offer was, in my view, a long shot, I joined the Yale litigation for a simple reason: The military insisted that Yale make a special exception to its nondiscrimination policy for one employer only, the U.S. military, and it required Yale to make this exception because the military wished to discriminate against homosexuals. (Under the Clinton Administration's Don't Ask Don't Tell policy, homosexuals may not openly serve in the military.)

I believe that this policy, like the previous policy which simply excluded all homosexuals, is deeply unjust. It is wrong, and, I believe, someday it will also be regarded as unconstitutional as well. Someday, I hope and I predict, our country will be ashamed of our military's long history of discrimination against homosexuals. Someday we will look back on this episode and wonder what kind of country we lived in that would refuse to allow people to serve honorably in the nation's military simply because of their sexual orientation. Someday, I believe, we will see the military's prejudice and its homophobia as wrongful and shameful in much the same way that we now regard as wrongful and shameful the military's long history of discrimination against blacks and its requirement of segregation of black and white troops.

I believed then, and I continue to believe, that it was appropriate to bring this case to protest the military's unjust and discriminatory policies. Much litigation is brought, and has been brought in our nation's history, not merely because the litigants hope to win in the courts, but because whether or not it succeeds it puts an important issue before the public eye. Indeed, every important social movement in the country's history, from abolitionism to the conservative movements of the late twentieth century, has brought litigation of this sort.

In particular, I thought it appropriate to join this litigation to protest the military's threat to punish Yale and other educational institutions if they did not make a special exception to their nondiscrimination policies so as to facilitate the military's own unjust and discriminatory policy. It is one thing for the military to demand special treatment that no other employer enjoys; it is another to demand special treatment so that the military can continue to engage in an unjust policy of discrimination that this country should rightly be ashamed of.

There is much more to Balkin's posting. Read the whole thing.