HLS , the military and non-discrimination

BY DWEINER@LAW.HARVARD.EDU

While I respect Carina Cuellar’s commitment to and service in the military, I think that she seriously misunderstands the nature of the debate over the university’s deplorable caving with regard to the law school’s non-discrimination policy. In a free society no institution should be beyond criticism, particularly one that has the power and inclination to actively impose its core values on others who do not agree. To say that gay people, whom the military ruthlessly persecutes, should refrain from standing up for their rights because (in a very nebulous sense) the instiution that spits on them also “defends their freedom” is to my mind an overly-simplified and jingoistic argument at best. I came to this law school because I was assured that one of its core values was freedom and equality regardless of sexual orientation. That core value has now been trampled on and my choice to come here rendered profoundly hollow.

The argument that makes the most sense to me is actually not a traditionally “liberal” one. I don’t particularly want the government to help me force my way into organizations that place a premium on “traditional” values, organizations where I am not welcome and not wanted. (And where the people probably can’t dress anyway). What I do want is for the goverment to refrain from trampling on the rights of those organizations with which, because they share my values, I do choose to affiliate myself.

If the Boy Scouts, despite their substantial use of public resources, still have a Free Association right to exclude gay people, why shouldn’t the law school be accorded the same Free Association right to protect its gay students from discrimination by homophobic organizations? Unfortunatley the law school is not sticking by its guns, to we may never have an answer to that question.

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