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Back in 1967, the singer/songwriter Arlo Guthrie urged listeners of his song “Alice’s Restaurant” to avoid the military draft. The lyrics advised them to walk into their local selective service psychiatrist’s office with a friend, sing a few bars of “Alice’s Restaurant” and walk out. The theory was that the psychiatrist would think both singers were gay and, pursuant to the ban on gays in the military, not take either one of them. Arlo wanted everyone to be able to stay out of the military, gay or straight. This past November, a group of law professors and law schools succeeded in obtaining a preliminary injunction against enforcement of the Solomon Amendment, which denies federal funds to institutions that prohibit military recruiters access to their students or deny assistance to the recruiters. The plaintiffs objected to the military’s policy of excluding servicemen and -women who are openly gay. They claimed that the Solomon Amendment impaired their ability to express their belief in nondiscrimination to their students and that it compelled them to engage in speech with which they disagreed by requiring them to assist recruiters. The 3rd Circuit agreed with the law schools and reversed the lower court in Forum for Academic and Institutional Rights v. Rumsfeld. Last week, the U.S. Supreme Court announced that it has agreed to review the case. Similarly, Judge Janet Hall of the U.S. District Court in Connecticut recently held the Solomon Amendment unconstitutional as applied in granting members of the Yale Law School faculty summary judgment on their claims of compelled speech and association. Burt v. Rumsfeld. The decision would seem to be a significant victory for the law schools and their faculty if their goal is to end discrimination in the military. But perhaps it is not a victory. As Paul Starr, the co-editor of The American Prospect recently wrote, legal victories mean that one doesn’t have to compromise with one’s opponents or convince a majority of the voting public. And the resulting problem is that those on the losing side may eventually change the judges. Nevertheless, some unfortunate practical consequences to the exclusion of openly gay persons do require challenge. During the first 10 years of the “don’t ask, don’t tell” policy, more than 10,000 military personnel were discharged for homosexual orientation or conduct. The armed services can ill afford to lose numbers like that. Of even greater concern, 20 of the military’s Arabic speakers have been discharged since 1998 because they were gay, this at a time when the government has an untranslated backlog of 120,000 hours of intercepts of conversations in Arabic. In Arlo’s day, the goal of many young men was to avoid the draft and stay out of the service. Being openly gay (or pretending to be so) was one way of doing that. In recent years, though, the military has become a more desirable employer, and significant numbers of young gay men and women have joined. Twelve years ago, The New York Times reported on a vibrant gay subculture in the military and an unofficial willingness to tolerate it by high-ranking officers. There are even unofficial gay alumni associations of West Point and Annapolis graduates. Perhaps the goal of those who oppose discrimination in the armed forces should be to increase that tolerance — not by boycotting the military but by engaging it. Rather than encouraging students to eschew recruiters, law faculty should encourage gay-friendly students to meet with recruiters and explain why discrimination against gays hurts both the military and the nation. They might even encourage those students to join the Judge Advocate General’s Corps of one of the services. The more people in the armed forces who accept gays as equals, the sooner the majority culture in the military is likely to change, the sooner discrimination is likely to end and the sooner the country will have a military that can take advantage of the talents of every citizen who wants to volunteer. In fact, law faculty just might, to paraphrase Arlo, advise their students to join up, walk into their commander’s office and say, “I support the right to be openly gay in the military” and walk out. If every new recruit did that, it just might be a movement.

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