'Don't ask' ruling outrageous

The U.S. Supreme Court has put its seal of approval on blatant discrimination.
It upheld a congresssional law that cuts federal funds for universities that do not allow military recruiters on their campuses. But those recruiters were denied access for an excellent reason: the military exclusion of gays and lesbians who are open about their sexual orientation.
Almost as disgraceful as the ruling was the fact that the vote was unanimous. None of the so-called liberals on the court dissented. Not Justice Stevens. Not Justice Souter. Not Justice Ginsburg. Not Justice Breyer.
Oh, to have the late Justices Douglas and Black (in his glory days) still on the court. They were absolutists about the First Amendment. They would have seen clearly what the Roberts Court could not: that bias is intolerable.
The “don’t ask, don’t tell” policy of the military is clearly unconstitutional. But the justices, human beings to the core and not the judicial automatons many take them to be, made a purely political, pro-government decision. Alas, the court almost always upholds military positions and bogus claims of national security.
Moreover, the justices can always marshal reasons for how they want to decide. As Shakespeare put it: “The devil can cite Scripture for his purpose.”
Chief Justice Roberts, writing for the court, sustained the punitive Solomon Amendment to the 2004 law barring U.S. financing for nonaccess.
“The Solomon Amendment regulates conduct, not speech,” Roberts said. “It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say.”
But the 3rd U.S. Circuit Court of Appeals in Philadelphia, reversed by the purblind Supreme Court justices, had it right. The appeals court held that the Solomon Amendment required law schools to surrender their First Amendment rights and become unwilling carriers of the government’s antigay message.
The appeals panel said the amendment forced law schools to “propagate, accommodate and subsidize” the military’s message of disapproval of homosexuality despite the law schools’ commitment to equal rights for gay students.
Or, as Joshua Rosenkranz, attorney for the law schools, noted during oral argument: it was compelled speech. Law schools, he said, “believe it is immoral to abet discrimination.”
Amen.
An editorial in the San Francisco Chronicle angrily pointed out: “Federal funding conditions have often been about ending discrimination. For example, Title IX prohibits sex discrimination in any public or private program that receives federal funding...
“ ‘Don’t ask, don’t tell’ is a policy that treats gays and lesbians, who are serving their country, as second-class citizens. The use of tax dollars to preserve discrimination is outrageous and unacceptable.”
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Peremptory challenges have long been a disgrace to the U.S legal system. They allow lawyers to reject propective jurors for no reason other than that they are perceived as a threat to their cases. They should be outlawed by Congress and/or state legislatures.
Morris Hoffman, an obscure Colorado trial judge but a legal scholar on the subject, agrees. Peremptory challenges give trial lawyers “the power to manipulate jury membership by rejecting perfectly fair prospective jurors for any reason or none as long as the rejection does not smack of race, sex or ethnic discrimination,” he notes.
Rich Siegel, head of the Nevada ACLU, is rightly concerned about racism in peremptories.
“The real problem is that prosecutors block nonwhites and lie about their reasons,” Siegel says. “Jury trials should not be a game that the prosecutor plays in the interest of winning…The defendant is entitled to a jury of his peers--and this should not be made more difficult by challenges that are not justified.”
Thurgood Marshall was the first Supreme Court justice to denounce peremptory challenges. Concurring in a 1986 case, Marshall said: “The decision today will not end the racial discrimination that peremptories inject into the jury selection process. That goal can only be accomplished by eliminating peremptory challenges entirely.”
Now a second Supreme Court justice, Stephen Breyer, has come out opposing peremptories. In a concurring opinion last year, he called for their elimination.
“Peremptory challenges seem increasingly anomalous in our judicial system,” he said. “A jury system without peremptories is no longer unthinkable.”
Breyer cited William Blackstone, the 18th century British jurist whose commentaries on the law were so influential in American jurisprudence. “Long ago Blackstone recognized the peremptory challenge as an ‘arbitrary and capricious species of challenge.’ ”
Bully for Breyer. But with the Roberts Court packed with reactionaries, don’t expect an immediate cure of a grave judicial ill.
Sparks Tribune, March 16, 2006