NEWS ANALYSIS: The shadow of Solomon


With Harvard Law School’s failure to join the recent lawsuit challenging the Solomon Amendment on First Amendment grounds, the school’s progress in the area of gay rights has come to a sudden halt. Is this a bump in the road, or sign of a more moderate administration?

Homosexuals have made great strides in gaining acceptance by the general public. Years of fighting for increased rights and advocating for greater acceptance culminated this year with the Lawrence v. Texas decision in which the Supreme Court acknowledged that homosexual couples have a right to privacy like everyone else. Writing for the majority, Justice Kennedy explained: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

This decision, celebrated by gay rights activists, marked a significant victory for homosexuals in the United States. In this past year, a Canadian Court also ruled that homosexuals must be allowed to marry. The show “Queer Eye for the Straight Guy” is a hit. Gays and lesbians are partners at top firms.

Likewise, homosexual HLS students have made great progress. From the presidency of the law school council, to the editorship of this newspaper, homosexual students have found no barrier in progressing to the highest ranks of student leadership. Filling the ranks of Law Review, Legal Aid, and the Board of Student Advisors, gay students find acceptance and open doors. Yet a shadow was cast over this progress with the decision by HLS last year to allow military recruiters on campus.

The 1996 Solomon Amendment threatens schools with loss of government funding unless “the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers.” Last year, students rallied in protest of the newly enforced provisions, which required law schools to open up their buildings to JAG recruiters. Many questioned last year why no legal challenge was mounted against the Solomon Amendment. Professor Alan Dershowitz, speaking at a rally, stated: “I think we ought to fight it in the courts. I think we ought to litigate this issue.”

Now, a legal challenge is taking place-and Harvard is sitting on the sidelines. This is a marked shift from previous actions. HLS has shown remarkable sensitivity to the concerns of its homosexual students in the past. The decision to comply with the military request, though contentious, was preceded by consultation and discussion by then Dean Robert Clark with members of Lambda. Upon deciding to comply, Dean Clark went to great pains to explain the decision, issuing a public letter explaining the reasoning and making sure homosexual students did not feel ignored.

There is no evidence that this occurred in regards to the failure of HLS to join the lawsuit. No reason has been offered as to why HLS is not a part of the lawsuit. This is not to suggest nefarious motives. Dean Elena Kagan has expressed support for the lawsuit, even though HLS has not joined in. In fact, HLS cannot take action alone. It needs the approval of the University and its general counsel.

Some have questioned whether the shift is one that comes from outside the law school. Last year, Professor Janet Halley blasted University President Lawrence Summers, whom she suggested wanted HLS to comply with the government’s demands. “We could not find the will anywhere to resist Summers,” she said. “If we had had the will, we could have forced him to involve himself,” argued Halley.

Last year, Dean Clark went to great lengths to explain the decision of HLS, showing concern for the feelings of students. This year, neither Summers nor Kagan have made public comments explaining why the school has not joined the lawsuit against the military. One thought expressed at the 25th anniversary of Lambda was that the true measure of the school’s commitment to maintaining an atmosphere of non-discrimination cannot be measured by words alone. Action, or lack of it, will be the stick by which this school is measured. Addressing concerns and explaining decisions would be one place for the school to begin.

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