Public Comment

Commentary: Constitution Is No Protection from Homophobia, By: Gene Zubovich

Friday March 17, 2006

The Supreme Court has gotten many things wrong over the years but the decision to uphold the Solomon Amendment is good Constitutional law. Unfortunately for those hoping to stem the tide of homophobia, the Constitution offers little protection. 

The Solomon amendment passed in 1995 with the intention of barring federal money from universities that barred military recruiters from campus. A series of changes toughened the law: the amount of funding withheld increased, the university as a whole became vulnerable from the actions of one of its departments, and the granting of unequal access in 2005, as well as complete barring, meant disqualification. 

A consortium of law school professors collectively challenged the law’s constitutionality, charging that by forcing the schools to accept military recruiters through threat of financial divestment, the government was forcing them to carry the military’s message. That message is the homophobic “Don’t ask, don’t tell” policy. 

Chief Justice Roberts got it exactly right when he wrote, “[The Solomon amendment] affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” The idea that a campus is promoting a view by allowing it is bad logic. And my wish to bar recruiters from campus has no bearing on that. The matter is one of power—one institution forcing another to perform certain actions—and not speech. 

So, what to do now? We can continue with the course we have been taking: lobbying, writing, voting, and the like. We can bar military recruiters and face the financial consequences. We can create an undesirable atmosphere for military recruitment through mass action. 

The first option we have been pursuing already and the results have been positive but slow. The second option is unlikely to happen and, if it did, the conservative cabal at Cal—much larger than most people believe—would revolt. Even if the latter were to get enough support, which is doubtful, it would polarize the campus. 

I would like to suggest another option, one that will have little immediate impact but could make a world of difference years from now. The Solomon amendment makes an exception for “the institution of higher education [that] involved a longstanding policy of pacifism based on historical religious affiliation.” I am not suggesting that we all become Quakers—rather, we should demand that we be treated with the respect we would get if we were. 

Religious beliefs carry a moral currency in this country that other moral beliefs do not. Those professing pacifism or equality, without reference to God, are laughed at, insulted, and not given serious consideration. Ending this double standard should be among the highest priorities of those wishing to affect change in this country. 

This involves more of the same: talking, writing, voting, and lobbying. But we must do this with a new sensitivity to insults and stereotypes. Being taken seriously is a fundamental prerequisite to dialog and change. Simply appealing to free speech will not get us far. When the Supreme Court rules against laws like the Solomon amendment, it will be recognizing change, not creating it. 


Gene Zubovich is a Berkeley resident..