The Breakfast Table

Hams in Black Robes

Good morning, Alex,

Well, we’re really getting into legal issues here–a perfect warm-up for the advanced constitutional law seminar I’m about to teach, since (as a pure coincidence) we’d long been scheduled to talk about the Second Circuit case tonight.

Before I answer your substantive points, let me note how grateful I am that you feel at liberty to discuss these issues. I know some judges who don’t feel comfortable engaging in public discussion of any legal issues. Not having recently perused the applicable judicial standards, but drawing inferences from the widely varying stances of different judges I know concerning public statements, I infer that the standards leave wide room for individual discretion. Speaking as both a First Amendment champion and an educator, I am always happy when judges do exercise their own free speech rights–and thus honor the First Amendment rights the rest of have in receiving information about our judicial branch–to the maximum extent permissible. In short, I like hams in black robes! (And the ACLU has come to the defense of judges who have been sanctioned for transgressing limits on their free speech–for example, we recently came to the defense of a state judge in Washington who was disciplined for having appeared at an anti-abortion rally.)

And, speaking of the First Amendment, I am delighted to be reminded that you agreed with the ACLU and Judge Nickerson that the “don’t tell” aspect of the current anti-gay military policy is unconstitutional–even assuming hypothetically that its ban on homosexual conduct were constitutional. Of course, I do think that the Supreme Court was wrong in the Bowers case, in holding that the Constitution permits the government to criminally prosecute sexual conduct between consenting adults in the privacy of their own homes. And I say that not only because Bowers was an ACLU case that we lost. I also note that we were in good company, with four of the nine Supreme Court Justices at the time voting our way, and yet another one (Lewis Powell) subsequently stating publicly (after he had retired from the court) that he had voted the wrong way. Even if Bowers had been correctly decided, though, in permitting the government to punish homosexual conduct, it still would not follow that the government should have the power to punish statements expressing a homosexual identity or the mere status of being a gay man or lesbian. Yet, the “don’t ask, don’t tell” rule does both of those things.

As for your (devil’s advocate?) defense of Clinton, in championing this policy, on the theory that lesbian and gay service members were even worse off under the previous exclusionary rule, I disagree for several reasons. For one thing, Clinton was the first president ever to sign a federal law that embodied any anti-gay military policy, thus for the first time “elevating” such a discriminatory policy to the status of a congressional statute. For another, this policy is the first that expressly outlaws not only conduct, but also speech; for those who believe that First Amendment rights are particularly precious, this policy is accordingly particularly pernicious. Finally, despite the vaunted “don’t pursue” prong of the policy, which was touted as curtailing the notorious “witchhunts” against gay service members, the Pentagon’s own data demonstrate that the persecution has not abated. To the contrary, the number of lesbians and gay men who have been discharged from the military has risen 67 percent since the new policy was implemented.

But, Alex, I’m not criticizing only the Executive and Legislative Branches of government for defaulting on their constitutional obligations here–no, my post yesterday morning was fair in apportioning the criticism among all three branches of government, including our esteemed judiciary. I want to underscore how disheartened I was by the Second Circuit’s abdication of its responsibility, as an independent and coequal branch of the federal government, to assess seriously the various constitutional arguments made against this policy. Instead, the entire opinion did little more than explain why it wasn’t the court’s appropriate role to do that, in the face of asserted military concerns. Yet I thought that the military was relegated to an appropriately subordinate role in our government structure. And I wasn’t aware that martial law had been imposed, somehow deposing the authority of civilian courts and legal norms. Last but far from least, I thought the judicial branch of government had an especially important role as guardian of the rights of unpopular individuals and minority groups, to protect them against what James Madison called the “tyranny of the majority.” So, Alex, your East Coast brethren are not only letting me down; worse yet, they’re letting down James Madison!

Having now exercised my First Amendment rights to criticize members of our judiciary, I repeat that I defend their First Amendment rights to answer back to critics such as Yours Truly. I look forward to emails!

One of my students recently heard Justice Scalia give a public lecture (another black-robed Ham, and another to whom I am grateful for his public appearances!) about his favored approach to constitutional law issues. She said that she went up to him afterwards and said, “Justice Scalia, my con law professor exposes us to many different perspectives on all of these issues,” to which he quipped, “My dear, I feel sorry for you!”