BY CHRIS THOMAS
Recently I received Dean Kagan’s annual email regarding military recruiting. In it Dean Kagan explains why she regrets being forced to allow military recruiters on campus. As I read the email, I felt uneasy. Something seemed wrong to me about both its tone and its message. There is an important national debate about the role of homosexuals in the military, and HLS’s input into that debate seems quite unsatisfactory.
Though the Dean’s email is filled with legalese, the debate over the Solomon Amendment is a political, not a legal, one. The Solomon Amendment was passed in the 1990’s to combat universities who were denying access to military recruiters in opposition to “Don’t Ask, Don’t Tell.” The Supreme Court ended the legal debate by unanimously rejecting a law school-led challenge to the Amendment.
The political debate is more interesting. To be honest, I do not have strong feelings either way. I do not know nearly enough about either sexual orientation or the military to make an informed decision. Perhaps the Dean is correct, and “Don’t Ask, Don’t Tell” should be discarded. There is plenty of evidence that servicemen and women care less and less about it and that its enforcement has decreased during times of increased military activity. Our close ally Britain recently abandoned her similar policy.
As long as there is a debate, however, here are a few thoughts. The fundamental purpose of the military is to protect our nation. In pursuit of that goal many incidental goods are often reached. Everything from technological advances to the spread of freedom has been furthered through the pursuit of national security. Many young men and women have benefited tremendously from the privilege of serving in our nation’s defense, gaining life skills, incomparable experiences and a privileged place in our patriotic society.
Dean Kagan, however, seems to view these positive externalities as the primary purpose of the military. She wrote, “[T]his wrong harms the fabric of our own community by denying an opportunity to some of our students that other of our students have. The military is a noble profession . . . I look forward to the time when all our students can pursue any career path they desire.”
The Dean’s words reveal a mistaken perspective. The military is about security, not rights. Our soldiers routinely forfeit the same rights for which they fight in order to create a more effective fighting machine. Though the military often touts these incidental benefits in recruitment, the purpose of the military is to protect the nation. If the Commander-in-Chief and the Joint Chiefs enact a policy in order to allow the military to best fulfill its duty, then that policy must be fought on its own terns. Contrary to the beliefs of elite law professors, not every issue cannot be narrowed down to expression and equality. I might be persuaded that “Don’t Ask, Don’t Tell” does little to further our national defense and perhaps even holds it back, but I am not at all persuaded by happy platitudes about student’s desires and rights.
Solomon Amendment opponents have similarly failed to engage in the debate by attempting simply to ban military recruiters from campus. For years HLS did not allow the military to recruit on campus at all. In 2003 HLS was forced to allow recruiters back on campus when the Solomon Amendment was amended. Because HLS disagreed with a single policy of the military’s, it refused to allow any students to interview with military recruiters during OCI. This seems absurd. The way to effectuate change is not to ban or avoid those with whom you disagree, but to engage them. Is that not a fundamental principle of the University?
Preventing the military from recruiting at Harvard-which Dean Kagan stated she wished to do-will not affect the military’s policy on homosexuals. But it will prevent the military from recruiting the best available legal minds, which are increasingly necessary in a war filled with difficult and novel questions. If our professors want the military to change policies, then they should do what they do everywhere else: write op-eds, books, and articles, give interviews, testify before Congress, or support similarly-minded candidates. Perhaps HLS should step down from her ivory tower and engage those with whom we disagree in the marketplace of ideas. At least, that is what they teach us in class each day.
Furthermore, that there is a great gay rights debate raging throughout the nation leads me to defer to military commander judgment. I find myself in the middle on many of these issues. Sometimes I agree more with gay rights supporters and sometimes I agree more with advocates of the current law. But if state legislatures and society at large cannot find consensus on the rights and responsibilities of our gay brothers and sisters, why should we expect that the military can do any better?
The young men and women serving in the military have enough burden on their shoulders without the additional task of solving one of the great social debates of our time. We should not ask our young men and women in uniform to be the guinea pigs for questions we have not yet answered for ourselves.
Chris Thomas is a 2L.