Does anyone else see the rank hypocrisy on the part of Frank Rich?

He says that the success of Brokeback Mountain proves that society is ready to accept gays and that within 5 yrs gay marriage wil be a reality and that this just shows how intolerant and out of the mainstream the religious right is, etc...

Well, Brokeback I predict, will max out at 50M at most and probably much less than that.Meanwhile, "The Passion of the Christ", the film that Rich spent the better part of a year bashing, to the point where he write something like 50 consecutive columns on it, made close to 400M domestically and 600M+ worldwide and over 1B when you add in DVDs and ancillary revenue.

But you never saw Rich write a column about how the overwhelming success of the Passion showed how Rich and his NY intelligentsia is out of touch with mainstream society or how they just don't get what the common man does.

If anything, the success of The Passion relative to Brokeback, not to mention the overwhelming success of the marriage initiatives in the 15 or so states they've had them shows that Rich is the one who's out to lunch.Brokeback is a film that has a niche audience and will appeal to the highbrow, liberal, urban crowd that saw Good Night, Good Luck and other liberal movies.

They say gays make up 2-3% of the population with those with gay feelings or inclinatoins making up another 3-5%. That means there's at least 15-20M Americans that are gay or have had gay thoughts or "experiemented". When you add in the liberal crowd, that's more than enough to make Brokeback a decent success. But it doesn't mean anything as far as some wider statement goes.

Also, the sex in Brokeback is stylized and the gay aspect isn't really focused on that much. Compare it to how guy/girl love/sex is treated in most movies and it isn't even close. Most of the sex in Brokeback is implied and off screen. They show a kiss and some fooling around, but nothing really controversial.When they make a movie where Jake and Heath have numerous open mouth kisses, where you see them fondling each other in states of undress, and any of the other things you'd see in your avg hetero love/sex scene or romance, then let me know.

Of course, Brokeback will sweep the Oscars and win Best Picture, Best Director, Best Actor, and Best Adapted Screenplay. That just means that Hollyowod is pushing the smae liberalism it pushed with the Euthanasia in M$Baby and other awards where it tries to make a statement.

The public is the real bellweather, though. It's the public that made hits out of films like The Passion, LOTR, SpiderMan, Star Wars, Shrek, Jurassic Park, etc... It's always the family friendly and the traditional values friendly films that will do the best at the box ofice.

Here’s some quotes from Mr. Justice Holmes that express one point of view on the issue you’ve brought up(they seem to be somewhat different from some of Justice Thomas’ quotes):

�All my life I have sneered at the natural rights of man.� Letter to Harold Laski, (Sept. 15, 1916) in 1 Holmes-Laski Letters 21 (M. Howe ed., 1953)

the State has the power and constitutional right arbitrarily to exclude the plaintiff without other reason than that such is its will.� Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 (1926).

Holmes� rejection of natural law is also reflected in his dictum that sovereign immunity embodies �the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.� Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).

As H.L. Mencken said in his great article on Holmes, �[t]he weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct…. The typical lawmaker of today is a man wholly devoid of principle�a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.� H.L. Mencken, A Mencken Chrestomathy 260-61 (H.L. Mencken ed., 1962). If Holmes� views were generally accepted, Mencken wrote, �there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.� Id. at 260.

That’s one viewpoint. Of course Holmes’ best known sentence from his SC ouevre is the following:
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.� Buck v. Bell, 274 U.S. 200, 207 (1927)

I can only imagine the reaction if Justice Scalia or Justice Thomas wrote that passage in an opinion of theirs today. Reading it today it seems like it comes straight from some Eugenics manual or pamphlet.

Of course, Holmes also wrote the following which seems to endorse a “living constitution” view, at least somewhat:

With regard to that we may add that, when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into LIFE a being the development of which could NOT HAVE BEEN foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had CREATED AN ORGANISM; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our WHOLE EXPERIENCE, and NOT MERELY in that of what was said a HUNDRED YEARS AGO. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [p434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country HAS BECOME in deciding what that Amendment has reserved.

And he also joined in full Justice Brandeis’ concurrence in Whitney which said the following(with regards to SDP and Satre Decisis):

Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus, all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights. See Meyer v. Nebraska, 262 U.S. 390; Pierce v. Society of Sisters, 268 U.S. 510; Gitlow v. New York, 268 U.S. 652, 666; Farrington v. Tokushige, 273 U.S. 284.

So, I guess one has to conclude that Holmes certainly gives one much rom for thought and discussion.

Ultimately, all constitutional adjudication has a political element to it that cannot be divorced from one's legal views.

JRB makes just this point in one of her speeches when she discusses SDP and how it's not SDP itself that's the problem but the worldviews of the judges that have abused it that's the problem. Here's a quote:

Much to my surprise, when I actually began to investigate the question, I found a small but credible body of scholarship suggesting that, in our history, the due process clause was viewed as a restraint on government, fashioned, in part, to protect the rights of property owners. Apparently, the colonists saw in the due process clause a guarantee which had a wide, varied, and indefinite content. The concept of due process like the words “the law of the land” in the Magna Carta put some liberties and some property interests beyond the power of government. Moreover, the language of the Constitution suggests the drafters clearly distinguished between the limited framework of that document and the whole law.

This revelation was what’s known in the precise, technical language of the judge’s trade as an “uh-oh.” It slowly dawned on me that the problem may not be judicial activism. The problem may be the world view — amounting to an altered political and cultural consciousness — out of which the judges now fashion their decisions.

Even Judge Bork believes in some notion of what you're talking about that laws must have substantive content as well and cannot be arbitrary and capricious. Here's a quote from his hearings:

There is always a rationality standard in the law, Senator. I do not know what rationale the State would offer or what challenge the married couple would make. I have never decided that case. We know that legislatures do and can constitutionally regulate some aspects of family life. There is no question, I think, that these things are subject to some regulation. We have, divorce laws, custody laws, child beating laws and so forth. The question always becomes, has the legislature a reasonable basis for the kind of thing it does here. The sterilization law would probably require an enormous or perhaps impossible degree of justification.

So, I think it's accepted that all laws must pass a reasonable basis test. There are certain laws that even if passed by a legislature and enforced with procedural due process simply don't pass the reasonable basis test. Your spoon law would probably be one, a law enacting a Chinese-style one child policy would probably be another.

The differences come between people like Bork that seem to have a more majoritarian view of things and see rights as intruding on the majority and those that see the constitution as more protecting the minority from the tyranny of the majority. There are some that see the legislature as the ultimate expression of the people and the only way to have a fair system and others who feel that the legislature and the people are two distinct and often separate entities.

For example, I don't think that in a state where there are minority groups like gays, various religious minorities and others that at most make up less than 5% of the population, you can really say that they're represented by the legislature. The legislature is ultimately a reflection of the majority.

Some would say that if a bad law is passed, then an amendment can be passed or the legislature can be voted out. But it's not that easy. Clearly a minority group that only makes up say 5% or even more of a population has no chance of passing an amendment. Amendments need 2/3 majorites and broad, wide support. They're very difficult to pass and laws that have already been passed by majorities are not unlikely to be repealed through amendment.Same with elections. Jim Crow laws remained on the books for years. No one in Virginia was going to vote out the legislature or pass an amendment to repeal the miscegenation laws.

It comes down to numbers and if a group only comproses a small pct of the whole, they face a tough struggle. But that's more of a political question than a legal question and I think one's answer ultimately depends more on one's political views and how they see society than on how they view the Constitution.

If you want to see good discussions of the reasonableness concept, I suggest you read Justice White's concurrence in Griswold where he strikes the law not because of SDP but as simply failing to meet the rational basis test. Also, Justice Harlan's dissent in Lochner and the opinion in Williamson v Lee Optical(1942) are also good discussions of this concept.

There are of course different views on this, but it's certainly a topic that has is within the bounds of accepted legal doctrine. There are many things that have sprung up involving ConLaw that have been developed over the years that weren't in the original constitution.

For example the whole concept of strict scrutiny, the "actual malice" libel standard, stare decisis/precedent, the "canons of construction", the idea of coercion/endorsement and what exactly constitutes an "establishment" of religion, these are all things that developed over the years and are not explicitly based on express text.

And this isn't exactly new. If you read the debates from 1787-1791 between the federalists and the anti-federalists, the ratifying conventions debates between people like Henry, Yates, the RI legislature, some others, you'll see that there was debate over the Constitution from the beginning.If you read the respective opinions of Jefferson and Hamilton regarding the National Bank of 1791, to name but one example, you'll see that even the framers themselves had divergent views when it came to constitutional interpretation. Constituional interpretation has always been tied in with politics and how one views society and the nation as a whole.

Here are a few excerpts from Justice Thomas on the role of the Declaration in interpreting the Constitution. If you can find it, I also recommend an article he wrote titled "Towards a Plain reading of the Constitution" from the Howard Law Jouranl around 1987 or so. While the Declaration maynot be a controlling legal document, I think a proper understanding of it and the Lockean/Enlightenment principles that underly it is vital to a proper understanding of the Constitution.

SPEECH BEFORE THE KIWANIS CLUB, WASHINGTON, JAN 14, 1987"

AS DR. KING MAINTAINED, AMERICAN POLITICS AND THE AMERICANCONSTITUTION ARE UNINTELLIGIBLE WITHOUT THE DECLARATION OFINDEPENDENCE, AND THE DECLARATION IS UNINTELLIGIBLE WITHOUTTHE NOTION OF A HIGHER LAW BY WHICH WE FALLIBLE MEN ANDWOMEN CAN TAKE OUR BEARINGS. THAT IS WHAT I GREW UP ACCEPTING.""

AFFIRMATIVE ACTION: CURE OR CONTRADICTION?" CENTERMAGAZINE, NOV/DEC. 1987.

"THE RULE OF LAW IN AMERICA MEANS NOTHING OUTSIDECONSTITUTIONAL GOVERNMENT AND CONSTITUTIONALISM, AND THESEARE SIMPLY UNINTELLIGIBLE WITHOUT A HIGHER LAW. MEN CANNOTRULE OTHERS BY THEIR CONSENT UNLESS THEIR COMMON HUMANITY ISUNDERSTOOD IN LIGHT OF TRANSCENDENT STANDARDS PROVIDED BYTHE DECLARATION'S "LAWS OF NATURE AND OF NATURE'S GOD."NATURAL LAW PROVIDES A BASIS IN HUMAN DIGNITY BY WHICH WECAN JUDGE WHETHER HUMAN BEINGS ARE JUST OR UNJUST, NOBLE OR IGNOBLE."

SPEECH AT FEDERALIST SOCIETY FOR LAW AND POLICY STUDIES,UNIVERSITY OF VIRGINIA SCHOOL OF LAW, MARCH 5, 1988 (THEEMPHASIS IS THOMAS'S)

"HARLAN'S RELIANCE ON POLITICAL FIRST PRINCIPLES [ASEXPRESSED IN THE DECLARATION OF INDEPENDENCE — SEEPRECEDING PARAGRAPH] WAS IMPLICIT RATHER THAN EXPLICIT, ASIS GENERALLY APPROPRIATE FOR SUPREME COURT OPINIONS. HEGIVES US A FOUNDATION FOR INTERPRETING NOT ONLY CASESINVOLVING RACE BUT THE ENTIRE CONSTITUTION AND ITS SCHEME OFPROTECTING RIGHTS. ... THE HIGHER LAW BACKGROUND OF THECONSTITUTION, WHETHER EXPLICITLY APPEALED TO OR NOT,PROVIDES THE ONLY FIRM BASIS FOR A JUST, WISE, ANDCONSTITUTIONAL DECISION."

I was wondering if you have any thoughts on Justice Black and his "incorporation doctrine" and his out-of-whole-cloth invention of the Constitutionally mandated "Wall of Separation bettwen Church and State" in the Everson case of 1947. That phrase has been a shibboleth of the Conservative movement in general and the Religious Right in particular and is perhaps the credo the secular groups(ACLU and the Left in general). It is, I think in any fair assessment, right up there with the "right to privacy" among the bete noire's of conservative jurisprudence.

In fact, I'd wager that if you took a vote among groups like Dobson's, the FRC, CWA, the Federalist Society, ACU, etc... and told them that the SC would overturn one of two lines of cases, and they got to pick, and you gave them the choice of either the Griswold-Roe-Casey-Stenberg line or the Everson-Engel-Lemon-Lee-Newdow-McCreary line, it would be an extremely close vote. I'd say the latter line of cases would come out with a slight victory. What do you think?

As you know, Black(a former klansman who many scholars have said used the phrase for anti-Catholic purposes that dated back to his klan days(I have no idea if this is true or not))was well known for being an ardent "follow the text" Justice and had well known feuds with Justices like Cardozo, Frankfurter, and Harlan over things like the "incorporation doctrine" and the meaning of the due process clause, among others.

As you most likely also know, the phrase "Wall of Separation" has no Constitutional foundation whatsoever and instead doesn't even appear at all until a letter written by Thomas Jefferson in 1805(20 yrs after the Constitution and 15 yrs after the Bill of Rights). Jefferson as you know had nothing to do with the Constitution. He wasn't present at the Convention, he didn't help draft it, he didn't sign it, he wasn't present when Virginia ratified it, etc... He was wholly removed from the process by virtue of being in France.

Nevertheless, Black took it upon himself to utilize this hitherto little-known-if-at-all phrase from a letter that at the time of the Everson case in 1947 was more than 130 yrs old as a means to revolutionize the way religion is treated in this country and the relationship it has to the Constitution.Everson was effectively the Operation Overlord/D Day/Shock and Awe/Inchon Landing(whatever other military analogy you want to use)in the war against religion that has been launched by the Left/Secularists in this country, and the ACLU in particular.

The cases that flowed from it have been very controversial and bitterly opposed and have resulted in recent decisions that found, among other things, that the Pledge of Allegiance and the Ten Commandments are unconstiutional. It continues to be used by the ACLU in suits to effectively remove Christmas celebrations from the public square, and Michael Newdow is even using it to have our currency declared unconstitutional.

Anyway, I was just wondering if you had any thoughts on how a person as faithful to the text of the Constitution as Black could use such an extraconstitutional phrase to completely distort and pervert the 1st amendment beyond any fair construction, to use a phrase from Chief Justice Marshall in McCulloch v Maryland.Hopefully Roberts and Alito won't follow in his footsteps and use some other line in some 130+ yr old letter to similarly make a persoanl amendment to the Constitution.

Another interesting case is that of Potter Stewart. Like Black, he too claimed to be faithful to the text and indeed dissented in Griswold because he could find no "general right to privacy" in the Constitution. Of course that didn't stop him from joining the Roe majority and finding some other right that isn't in the Constitution either. It also didn't stop him in 1972 from finding that something that IS in the Constitution(capital punishment)really ISN'T in the Constitution(or at least if it was in 1791 it somehow magically vanished from it in the interim)in Furman v Georgia, and then changing his mind 4 years later in Gregg v Georgia and saying, "oops, I did it again", and finding that capital punishment had somehow reappeared after a brief absence. Perhaps it was on vacation or some religious mission. Maybe Bill Douglas has been holding it hostage at his cabin in Goose Prairie before Stewart rescued it.

Perhaps Stewart's most enduring contribution and legacy, though, is his well thought out and respectful of judicial restraint theory of interpretation. While Scalia calls his textualism, Bork uses Orginal Intent, Roberts says that he doesn't even have one, Stewart called his "I know it when I see it". I don't know if any law schools teach "I Know it when I see it" or if any articles or conferences or symposiums have been held to discuss it. I know originalists have the Federalist Society. I don't know what those who believe in "I know it when I see it" have.

Perhaps the WH should be more concerned with Judge Alito's eyesight than his performance in the hearings or his memos on Thornburgh or the fleeing felon case. Maybe they should pay for LASIK surgery to make sure that he can see the Constitution clearly enough, he does wear glasses you know. Of course, LASIK might not be the best option. With bad eyesight, it's more likely he won't see the same right in the Constitution that O'Connor did for the past 24 years. I also don't think they'd want his newfound 20/20 vision to allow him to see a right of terrorists to have habeus proceedings or geneva convention rights or access to the court system.

Here is the view of one 9th Circuit "activist" Judge on Substantive Due Process. It's a tragedy that liberal activists have taken over the judiciary and used SDP to create new rights out of whole cloth, with no Constitutional foundation whatsoever. It's a good thing we've had Bush the past 8 yrs to nominate judges like Bill Pryor, Michael McConnell, and Janice Rogers Brown who will help to right the ship. It's clear that anyone who would feel the way this liberal, pro abortion/pro gay rights/pro secularism/pro socialism activist appointed by Bill Clinton does has no place interepreting the Constiution:

BEGIN QUOTE:The prevalence and permanence of this newly fledged feudal consciousness is a puzzle that led me — by a very circuitous path — to a new understanding of (or at least a new way of thinking about) the judicial role. I initially accepted the conventional wisdom that substantive due process was a myth invented by judicial activists who were up to no good. You all know the drill. Substantive due process is an oxymoron and Lochnerism is the strongest pejorative known to American law.

There are at least two problems with dismissing the idea of substance in the due process clause. First, substantive due process is still around, cleverly disguised as fundamental rights jurisprudence. Second, even conservative judges who take the rule of law seriously are appalled by legislative actions which violate the whole spirit, if not quite the letter, of provisions clearly designed to limit government. And most significantly, if we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a Kleptocracy — a license to steal, a warrant for oppression.

Much to my surprise, when I actually began to investigate the question, I found a small but credible body of scholarship suggesting that, in our history, the due process clause was viewed as a restraint on government, fashioned, in part, to protect the rights of property owners. Apparently, the colonists saw in the due process clause a guarantee which had a wide, varied, and indefinite content. The concept of due process like the words “the law of the land” in the Magna Carta put some liberties and some property interests beyond the power of government. Moreover, the language of the Constitution suggests the drafters clearly distinguished between the limited framework of that document and the whole law.

This revelation was what’s known in the precise, technical language of the judge’s trade as an “uh-oh.” It slowly dawned on me that the problem may not be judicial activism. The problem may be the world view — amounting to an altered political and cultural consciousness — out of which the judges now fashion their decisions.

At its founding and throughout its early history, this regime revered private property. The American philosophy of the Rights of Man relied heavily on the indissoluble connection between rationality, property, freedom, and justice. The Founders viewed the right of property as “the guardian of every other right” and reasoned that “to deprive a people of this right is in fact to deprive them of their liberty.” The idea of constitutional government is deceptively simple: the government cannot legitimately infringe upon our rights even if the majority votes to do so.

But, by 1890, attitudes had changed radically enough for Alfred Marshall, the teacher of John Maynard Keynes, to make “the astounding claim that the need for private property ‘reaches no deeper than the qualities of human nature.’” A hundred years later came Milton Friedman’s laconic reply: “‘I would say that goes pretty deep.’” Marshall’s statement, however, signaled a seachange: a political and cultural shift from the American vision of humans as free and creative beings entitled to enjoy the fruits of individual effort back to the tribal view of man which continues to dominate European political philosophy. “Europe’s predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as a slave to the absolute state as embodied by the ‘the people’—i.e., switching from slavery to a tribal chieftain into slavery to the tribe.” America sought to make government subservient to the people; the collectivist impulse which gained preeminence in Europe sought to keep people subservient to the government.

It is, I believe, this shift in world view which causes us to dread judicial activism. In short, we have been fixated on the structure’s gingerbread trim when we should have been focusing on its foundations.END QUOTE

It's a good thing that we don't have more activist judges like this and that Bush has appointed judges who follow the Constitution. This is precisely the type of judge that the Federalist Scoiety was formed to combat and that conservatives like Bork, Mark Levin, and Rush Limbaugh have railed against for years. No conservative worth his salt could ever want a judge like this on the SC or even on an appeals or district court. I take solace in the knowledge that if this Judge were ever nominated to the SC by Hillary or Mark Warner that the conservatove blogosphere, interest groups and talk radio would be out in force to stop her from being confirmed

That is what the whole debate comes down to. The sharpshooter vs the Shotgun. As I said, unfortunately SDP isn't the only "tool" that can be wielded in a reckless manner, nor the only way that judges can usurp the legislature and create new rights.

Unfortunately, I think the use of the 1st amendment to cover child pornography and nazi rallies, among other things has been more in the shotgun vein than the sharpshooter. It doesn't mean that I think the 1st amendement is illegitimate or that it's merely a way for judges to create new rights and be activist.I have, and I'm sure you do as well, serious disagreement with how the remainder of the bill of rights has been applied in cases like Mapp v Ohio, Miranda, Roper, Furman, Maryland v Craig, etc...

But that does not mean I 100% reject what those amendments stand for. Much like my views on SDP, I think that they gave to be applied fairly and properly or else there is a grave danger that they can be abused. Surely, the Kelo decision represented a judicial power grab and has been roundly condemmed by both liberals and conservatives, it has nothing to do with SDP.

Justice Thomas said that "THE MOST IMPORTANT"(emph added) case decided since Brown was Morrison v Olson and that it represented the worst kind of judicial activism. Morrison v Olson has NOTHING to do with SDP and instead or even the Bill of Rights. So abominable decisions can happen in all cases and judges can abuse and disregard the Constitution in ways that are far removed from SDP.

I guess I question the idea that SDP is the sine qua non of judicial activismn(broadly defined) and that if only we'd do away with it, the constitution would be restored to some idyllic, utopian state that existed before Bill Douglas and Bill Brennan made a mockery of it.Even if SDP were eliminated tomorrow, judges would still find ways to create new rights and since the SC is the final authroty on constitutional matters, absent an amendment the people wouls still be powerless to stop them from doing so.

Judges would find new and equally outrageous ways to reach decisions like Roe, Lawrence, etc... that utilize SDP. As many liberals have argued, Roe and Lawrence for that matter could have been grounded in the equal protection clause rather than through SDP. If that had happened would that have rendered the equal prtection clause illegitimate simply because certain judges perverted its meaning?

The key is to participate in democracy, to vote, and to use the power of the democratic gift the Constitution provides us with to elect Presidents that will appoint judges that won't abuse SDP. If for example, Justice Stevens and/or Justice Ginsburg steps down, we'd a solid majority of 5 judges who are as skeptical of SDP as you are, then you wouldn't have to worry about it being abused. If a solid conservative wins the in 2008, we might be able to have 6-7 vote conservative majority that would ensure that SDP is rendered impotent for the next 20-25 yrs.

The SCOTUS is ultimately a reflection of the nation as a whole. The commerce clause had a very specific meaning until the nation deiced they wanted it to have a more expansive meaning and to allow the govt greater latitude in regulation and thus reelected FDR who stacked the SCOTUS with Justices who would ensure that his view of the constitution won out. It's up to us to affect a similar change by electing a President and a Senate who share our view of the Constitution and thus will nominate and confirm justices who will ensure that our view wins out and that the abuses we decried in the past do not occur in the future, and where possible, can be rolled back or outright reversed.

There is, in fact, a perfectly reasonable explanation for the miltary's policy on homosexuals. The reason is this.

The military recognizes that effective unit cohesion and morale is a sina qua non of the armed forces. Years of experience have proven beyond all reasonable doubt that there certain elements that when present render military units ineffective. The elements include but are not limited to disease, famine, physical malady, injury, handicap, mental clarity, sense of duty, sense of allegiance. An additional element is that of sexual desire and sexuality.(realize I refer to sexual desire in the abstract, ie both hetero and homosexual desire, this in no way is intended to bash gays).

That element of sexual desire is why women have been separated from men in the military(specifically combat units). Some will say, no, it's because of differences in strength and other physical features. This is not so. For a certain female may posess greater endurance, strength, or other attributes than a given male. Indeed many women are superior to men when it comes to fkexibility and endurance and there smallker stature can actually preferable for certain military mission involving the need for stealth and surprise or to operate in confined areas. The differences in physicality are not inviolable and inexorable. What is absolute, however, is the conflict in sexual desire that males feel for females and vice versa and all the implications that has in terms of behavior, conscience, cohesion, morale and unit performance. The implications of sexual desire and its impact on the human animal and human behavior are so innate and omnipresent that its effect impact on a person's behavior are undeniable. Experience, therefore, has shown that it is best to not have a situation where members of a given military unit feel sexual desire towards one another.

That element of sexual desire must be wholly absent from the unit. Given that, it is clear why the military has a policy against homosexuals. It has nothing to do with any moral or value judgment on them as citizens or human beings. It is mere recognition of an inescapable anatom ical and biological truth. Homosexuals, by their very definition, feel sexual desire for their their own sex. It is a fact of life. All military combat units are male only, for the reason I explained above, the need to remove completely the presence of sexual desire among unit members. Since the military doesn't allow females who feel sexual desire towards males it must similarly preclude males who feel sexual desire towards males. The discrimination is based soley on the biological fact of sexual desire. It has nothing to do with a person. It's the same reason the military bars the physically handicapped, or the blind. It's because they, through no fault of their own and in now way compromising their character, are possessive of certain incurable and unremovable anatomical and biological facts and features as such that their inclusion in a given military unit renders it, in the experienced and well reasoned judgment of our military leaders, ineffective.

Again, as Michael Corleone would say "It's nothing personal, just Business". I would add that as the sexual desire element is the key factor it would be my view that in any unit where the military permits both male and female participation I think they should also allow homosexual participation. Although a compelling argument can still be made that as the vast, vast majority of all males in the military are heterosexual and as a good number of them may have certain moral objections to homosexuals and that presence of homosexuals in the unit would cause the heterosexual males great consternation and lead to lack of morale among the unit, the need to maintain exclusion is still necessary. Perhaps there could then be all homosexual units, or homosexual males+females units, or to have certain tasks only for homosexuals a la the Navajo codetalkers in WW2(perhaps translators could fall under this rubric).

I have no problems with the mliitary devising ways to accomodate and assimilate homosexuals in to the military. There's also a strong 1st amendment freedom of association claim on behalf of the mlitary. You may not agree with this but I think it is a perfectly logical and reasonale defense of the military policy of exclusion, and it is one that is not based on any fundamental or intrinsic dislike or hatred of gays. It is merely one that recognizes biological and human truth, and the need for the military to confront that truth if it is to be effective in its assigned duties.

In fact, the Mergens case controls this completely in my view. Interestingly, Roberts was on the SG's brief in that case. I think we know what his views are.

Here's O'Connor's majority that states conclusively FAIR's free speech/association argument is hogwash:

In Widmar v. Vincent, supra, we invalidated, on free speech grounds, a state university regulation that prohibited Page 496 U.S. 226, 235 student use of school facilities "`for purposes of religious worship or religious teaching.'" Id., at 265. In doing so, we held that an "equal access" policy would not violate the Establishment Clause under our decision in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). In particular, we held that such a policy would have a secular purpose, would not have the primary effect of advancing religion, and would not result in excessive entanglement between government and religion. Widmar, 454 U.S., at 271-274. We noted, however, that "[u]niversity students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion." Id., at 274, n. 14.

Note that last sentence. This isn't even university students. It's an extremely intelligent, selective group of law school students. Any claims by FAIR that they won't be able to distinguish between the Law School's neutrality toward sexual orientaation and the miltary's is baseless. I expect at least a 7-2 reversal with perhaps Ginsburg and/or Souter dissenting. It's that open and shut in my view, although I 100% respect your view on the case, particularly after you stated your thoughts on Grutter, VMI andd othe aff action cases. I greatly respect that. In this case, however, I must respectfully dissent

I commed you on your Grutter and VMI views. At least you're consistent. I somehow doubt FAIR and the law schools opposed those decisions, not to mention many other similar ones.

You're wrong about free exercise. If I'm Muslim I can't demand to be released from a mission or any other army assignment beacuse I have to pray 5 times a day or I can't demand to keep my beard. If I'm a Jew I can't refuse a mission on saturday or demand that I can wear a kippah or tallis in all missions. There are many religious exercises that are impinged on by the military.

You say physical strength is a good enough reason. There are many men that may be weaker than a given woman. And if physical strength is needed, why isn't moral strength needed? Surely the soldier who lacks any moral strength and purpose is not a desired outcome. Moral cohesion and unit morale is an integral and vital part of military operatons. If the soldier lacks moral standing his physical traits are worthless. And I think McCulloch clearly shows that Congress has extremely wide latitude in reaching that dtermination.

You write: There's an arguable speech case, but not a particularly convincing one. No one things that if you are drafted that it means you are in favor of being drafted, or of military service in general Hello? No reasonable person would think that merely because the JAG officer shows up at a job fair that the law school approves of all aspects of the military or its DADT policy. It's just not rational to think so.

As for claim about exclusion, if i was a jew and the military said that all jews are exempt from the draft or all lacks are exempt, I'd hae no problem, and even welcome it. How many gays had their lives saved by not being drafted in WW2, Korea, or the Nam?

Additionally, I would point out that "Don't ask don't tell" does not in fact bar homosexuals from serving in the military. Instead it requires that they keep that aspect of their life private and they cannot be questioned about it. There are many other aspects of one's private life that they submit to the military when they join as well. And the Constitution does not provide for "free exercise of one's sexual proclivities"

Admittedly it's not the best policy around, but let's stick with baby-steps as we've gotten past the active investigation of potential homosexuals to a stance of toleration. A number of years from now we may see it be relaxed completely. This similar to the "all deliberate speed" language from Brown. If it was good enough for Brown, it's good enough for FAIR. Finally, as others have pointed out on the net the colleges are unfairly demonizing the military when it was Congress that enacted the law in question. It sholud really have been US v FAIR, not Rumsfeld v FAIR.

Cornellian, would you consider the draft unconstitutional? After all, the draft discriminates against heterosexuals and men AND violates rights of free speech, free exercise of religion, and free association. Could I challenge the constitutionality of the draft on the same grounds that FAIR is challenging the Solomon Amendment? Should I prevail?

As a heterosexual person, and a male, I am FORCED to submit to the draft. Homosexuals and women are BARRED and EXEMPT from the draft(indeed there's a new story about how Jimi Hendrix evaded the draft by pretending to be gay and allowing himself to be caught masturbating to gay pornography in a bathroom). Doesn't that mean that the draft violates the equal protection clause and is unconstitutional? Surely, the reverse would never be allowed by the SC. A law that leads to effective servitude and death that only affected women. I mean, the SC said that VMI must admit women, but it's ok for the Military to ban them from the draft. Why as a man should I have to go to Nam and die while my a woman could stay home and party?

Also, being drafted severely limits your rights to free speech, free exercise, freedom of association, and freedom of petition of grievances. Arguably 4th, and 8th amendment issues can be raised as well. If anything, gays should feel fortunate. Gays have a get out of jail free card when it comes to the draft. If Congress and the miltary can FORCE heterosexuals to be drafted and sentenced to sure death while EXEMPTING homosexuals from it, sureley they can FORCE the requirements at issue in this case.

And as the Mergens case and others show, the ability of law school students to distinguish between content and viewpoint based speech is beyond all shadow of doubt.

What happened to the Grutter case where the SC said that diversity is a compelling interest for law schools(that receive govt money) to discriminate against whites. Are whites any less desrving of protection than gays? Are you against Grutter? Is FAIR? If diversity is so important, surely including the military adds to the diversity of the law school. I guess diversity is only preferable insofar as it's just a diverse group that AGREES with you. Diversity works only as long as it doesn't include anything I disagree with. To be consistent, FAIR should also support the reversal of Bakke and Grutter, not to mention Metro broadcasting. Do they? I further agree with Simon. For FAIR to be consistent they'd hae to refuse ALL government recruiters or representives as DADT is ultimately subject to congressional authority, not military authority. But of course FAIR won't do that. They use your view of a "draft or else" argument.

Ann was right about McCulloch. Congress has great deference when it comes to the means to pursue constitutional purposes. Finding for FAIR would effectively overrule McCulloch and say that Congressional deference is now subject to the personal views of the people. That just won't happen.

For if FAIR can challenge a law on gay-rights grounds(which isn't even an accepted heightened scrutiny classification)then anyone can get a law struck on any pretext whatsoever. As the SC ably pointed out in the Reynolds case of 1878, to surrender the Constitution to the personal predelictions or views of any group that may happen to feel a certain way about an issue is to strip the Constitution of any real meaning whatsoever. Or, to paraphrase Justice Kennedy in Stenberg, "A law that depends on the "good faith" rights of sppech and association of any interest group that brings a claim is no law at all". It's anarchy.

The opinion for this case should take freely from Chief Justice Marshall in McCulloch, in which he wrote the following: "The power being given(to raise and support armies, declare and conduct war), it is in the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed their intention to clog and embarrass its execution by withholding the most appropriate means... But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire in to the degrees of its necessity, WOULD BE TO PASS THE LINE WHICH CIRCUMSCRIBES the JUDICIAL DEPARTMENT, and to tread on legislative ground. THIS COURT DISCLAIMS ALL PRETENSIONS TO SUCH A POWER" Reversed. IT IS SO ORDERED

Do you deny that the US killed vast numbers of German civilians including women and children, in places like Dresden, Hamburg, Wurzburg, etc...?

Do you deny that those killings were deliberate? Do you deny that if the US repeated this action today in Iraq that Bush would be denounced by the left as a war criminal and immediate calls for his impeachment would begin? Do you deny that the US killed vast numbers of Japanese civilians as a result of firebombing Tokyo, including women and children?

Do you deny that if the US repeated this action today in Baghdad that Bush would be denounced by the left as a war criminal and immediate calls for his impeachment would begin?

Do you deny that there were many instances of German civilians being pressed in to service at Concentration Camps and forced to "clean up" the mess their herrenvolk had left?

Do you deny that many Nazi's were shot on sight? Here's quotes from noted WW2 Historian Stephen Ambrose on US treatment of German POWs: Our first conclusion was that Mr. Bacque had made a major historical discovery. There _was_ wdiespread mistreatment of German prisoners in the spring and summer of 1945. Men were beaten, denied water, forced to live in open camps without shelter, given inadequate food rations and inadequate medical care. Their mail was withheld. In some cases prisoners made a "soup" of water and grass in order to deal with their hunger. Men did die needlessly and inexcusably. This must be confronted, and it is to Mr. Bacque's credit that he forces us to do so.

He points to warehouses in Germany full of food. He says that the Red Cross had food available. One of his most daming pieces of evidence is that a train from Geneva loaded with food parcels sent by the Red Cross to feed German prisoners was forced to turn back. This is shocking - food was available, men were hungry and American officers ordered the train to return to Geneva. In his conference report on the food situation in Germany, James Tent of the University of Alabama - Brimingham says there was no question that there were severe shortages. Still, as Mr. Tent points out, there was food stocked in warehouses that was not distributed to prisoners living on a near-starvation diet.

Mr. Cowdrey's conclusion, strongly supported by another conference participant, Maj. Ruediger Overmans of the German Office of Military History in Freiburg (who is writing the final volume of the official Germany history of the war), is that the total death by all causes of German prisoners in American hands could not have been greater than 56,000

Nevertheless, Mr. Bacque makes a point that is irrefutable: some American G.I.'s and their officers were capable of acting in almost as brutal a manner as the Nazis. We did not have a monopoly on virtue. He has challenged us to reopen the question, to do the research required, to get at the full truth April 17, 1945: The Americans opened their enormous Rheinberg Camp, six miles in circumference, with no food or shelter whatsoever. As in the other big "Rhine meadow" camps, opened in mid-April, there was initially no latrines and no water. In some camps, the men were so crowded they could not lie down. Meanwhile, at Camp Kripp, near Remagen, the half-American Charles von Luttichau determines that his German comrades are receiving about 5% as much food as their captors." Complaining to the camp commander, HE SAID: ''Forget the Geneva Convention. You don't have any rights."

Years of talking to my grandfather and others of his generation who were in Europe at this time, show plenty of anecdotal evidence that death rates in the holding camps were extremely high. In the initial months after capture, there would have been little else to do with them other than pen them up Andersonville-style. With the lack of food many German prisoners did perish from malnutrition and exposure to the elements. This hardly seems controversial. It seems you are the one who is mistaken And was it our humane treatment that made West Germany think we were the good guys, or was it the fact that we were the only thing that stood between them and Stalin? Do you deny that Harry Truman dropped the A Bomb on Japan and was commander in chief while the US laid waste to much of North Korea(their casualties and damges were extremely high)?

For one thing, I did just show above that many atrocities perpetrated against German and Japanese civilians WERE official US policy and not just "bad stuff that happens" during a war.

Second, the left loves to exagerrate and pretend that Bush is running some Gulag archipelago or that he's setting up Maidanek's and Treblinka's all over the place. In the 4 yrs since 9/11 there's been at most a handful of guys even involved in this(Padilla, Hamdi). You make it seem like the gov't is just picking random muslims off the street and shipping them out in cattle cars. You mention those who are innocent. I guess we hould have left Hitler in power. After all, we killed more than 1,000,000 innocent Germans to get rid of him. We killed more than 1,000,000 Japanese civilians before Hirohito would kneel before MacArthur. Should we have surrendered first?

There's two choices here. Freedom or Submission. They won't rest until we submit. Quite frankly, Bush is actually a tad too timid for my tastes. Further, I could really care less about a few random people caught in the crossfire. They're of no concern to me. Victory is.

Read some Churchill. You should be more concerned about real bad guys and Leftist Gods and Heroes Lenin, Stalin, Mao, Zhou Enlai, Che, Ho Chi Minh, Castro etc... that ACTUALLY have set up far reaching secret prisons and labor camps. But you don't hear a peep from the left or the ACLU or the democrats about Castro or the Chinese Lao Gai, do you?

You talk of killing babies(by the way, I assume from your concern about babies you're obviously pro life and anti abortion. or are nazi babies more important than American ones?).

Surely you must know that those liberal democratic Gods FDR and Truman consciously and deliberately were the Commander in Chief's of militaries that by even a conservative estimate purposely killed over 1,000,000 women and children. Was FDR a war criminal for ordering the bombings of Dresden, Hamburg, and Wurzburg? Were Marshall, MacArthur, and Eisenhower war criminals for their actions in places like Tokyo, Aachen, and the Falaise Pocket? Was Truman a war criminal?

Has ABC News or Chris Matthews done any shows on FDR and Truman and how more than 400,000 americans died and over 1,000,000 were wounded because of them. Do they talk about FDR and Truman's deals with Stalin like Michael Moore and Jon Stewart showed Bush with King Abdullah of Saudi Arabia?

The irony that a jew like Jon Liebowitz(Stewart's real name), has been bashing Bush for the past 4 yrs when he's been out there trying to fight the very terrorists that would kill not only every last jew but Stewart's very wife and children without a second's hesitation is so think that you can cut it with a knife. I remember the BS that guys like Stewart and Leno and Letterman spewed in the days and weeks after 9/11. I remember Stewart almost coming to tears and talking about how shaken he was and how horrible 9/11 was. It was all a joke. Stewart doesn't care. How about we send Stewart out with the Marines for a mission or two? Can you imagine Stewart cracking wise about Roosevelt during the Battle of the Bulge? Can you imagine openly mocking and laughing at Marshall and Truman?

In war there are no circumstances. There's victory and there's defeat. There's conquest and there's submission. Bin Laden and Zarqawi have gone all in. Are you ready to call?

Perhaps you've missed all the pro-military and pro-US events and rallies that have been going on the past few yrs. I can see how since the news media never covers them. That's why they were so shocked and awed when more than 62 MILLION(more than had ever showed up before)releected their archnemesis George Walker Bush to 4 more years at 1600 Pennsylvania Avenue. The looks on Dan Rather's and Chris Matthews' faces were beyond value.

The lack of pride also stems from the "pop culture" to use a broad term. Holloywood maintains this Marines=SS dichotomy. In the yrs 1941-1945 Hollywood produced over 1000 pro US, pro military films. Directors like Frank Capra and John Ford put their talents to use with things liek "Why We Fight" and other inspiring works. We had artists like Glenn Miller, Tommy Dorsey, and the Andrews Sisters that roused the populace and filled them with feeling and patriotism. There were countless events and war related activities to involve the public.

Today? Holloywood's produced 0 positive films about 9/11 or Terrorism or Iraq.(I don't count the measley few that are in production-ALL of which are from an anti-US slant) Our Directors like Michael Moore and George Clooney actually put out films that serve to DAMPEN and SAP morale, not boost it. (If it was up to me Moore would have been arrested on charges of Treason, surely he qualified under any fair construction of the Constitution). Capra must be spinning in his grave. Ford weeping to see how guys like Clooney and Moore have perverted a fine institution.

Our music stars like Eminem and Green Day are the exact opposite of the stars of the 40's. Did Frank Sinatra come out in a wheelchair and a pipe and a pig mask and play 2 hours of songs that compared FDR to Hitler and made him out to be an imbecile? Did the Andrews Sisters say they were ashamed to be Americans and pose on the cover of Look magazine with "FDR for Oil and Greed" shirts?

The nation as a whole was much more cohesive, much more unified in the war effort. Do you think something like the Smith Act could be passed today? Do you think FDR would get away with 3000+ dead on D Day today? The Howard Dean's and Jack Murtha's would have out calling for him to "bring the boys home". It's a good thing Murtha wasn't around when we were on Guadalcanal or Iwo Jima, he'd have had us out of there by sun up. He'd surely have called for Eisenhower's cashiering after the Huertgen forest campaign in the fall of 1944.

The bottom line is that the nation as a whole just hasn't rallied to the caus elike we used to. That's partly the WH's fault. But it's more the fault of a media/pop culture/and leftist/liberal mindset that ever since about 1968 has continued to portray the US as the source of all evils in the world and our leaders as no better than the Mao's and Stalin's of thsi world. When the people have been filled with so much anti US and anti military propoganda all these years, it's no surprise that we're having the results we are.

Because the vast majority of Americans could care less about how the CIA treats AQ and in all likelihood wishes they were even more brutal.

It's interesting how so many on the left and in the democratic party are willing to go after Bush and Ronsfeld, yet still hold up FDR, Truman, and Marshall as Gods when they killed more Germans in ONE NIGHT in Wurzburg than the total number of muslims Bush and Rumsfeld are responsible for in the past 4+ yrs.

I'm still waiting for Terry Moran and ABC News to do a "special report" on FDR and Truman and the horrors they perpetrated. But I guess they're part of the "greatest generation".

To the contrary, my friend, I got the point entirely, and it was disgusting. The fact that you immediately thought to post what you did says more about you than it does about I. And the fact that so many leftists in Hollywood continue to put out anti-military tripe like Jarhead, Courage Under Fire, Three Kings, Syriana, etc... is even more sickening. Especially when movies likes The Great Raid come and go and George Clooney is treated like the 2nd coming of Orson Welles.

What happened to the days when Hollywood had real men in it? Men like Jimmy Stewart that actually put his life on the line and flew bomber missions over Germany. The only missions that guys like George Clooney, Matt Damon, and Brad Pitt go on are the ones to get new tail like Angelina Jolie or Krista Allen. And Clooney calls himself a star? Clooney couldn't even shine Jimmy Stewwart or Henry Fonda's jockstrap that's how self righteous and arrogant he is.

Aaron Sorkin is Jewish. I wonder how many Marines or Army guys died saving members of his family, or killing the animals that were responsible for it. I wonder how many guys died so that a cokehead like Sorkin can make millions ridiculing the people who've done more for this nation than Sorkin and his leftist pals ever could. Sorkin makes me ill, and the fact that he'd make Nicholson out to be the bad gay and let some "glib" pygmy like Tom Cruise come off as some self righteous hero is even worse. I hope Sorkin's enjoying his eightballs with Marty Sheen. If any terrorists show up I wouldn't be surprised if the local marine recruiter hands them Sorkin's address with a map.

I can just imagine some of you bleeding hearts back in 1944 talking about how we need to make sure the Nazi's get fair treatment and that Waffen-SS and Sonderkommandos get a trial and a chance to go before a judge and procure evidence and due process. If you guys were in charge back then things would have been a lot different.

Are you aware that US forces routinely shot on sight nazi scum? no trial, no geneva convention. are you aware of Eisenhower's treatment of Nazi pows after WW2 and the conditions they were in? Do you know that US forces didn't worry about things like collateral damage and int'l law because they were in a life or death struggle with Hitler and Hirohito and there was no time for some of your liberal notions of justice.

Thank god we had real leaders back then like FDR, Give em Hell Harry, Ole Blood and Guts, and MacArthur. Men that knew what was on the line and only cared about one thing-victory. Guys like Truman and FDR weren't afraid to show the Japanese who was boss, to let the Germans know that we will kill ever last woman and child in every last town and village until they surrender. Guys that weren't afraid to do what needed to be done in places like Dresden, Hamburg, Okinawa, Tokyo, Anzio, and elsewhere.

It's attitutde's like those of some I see on here that really make me wonder if we have what it takes to prevail here. Because I can tell you one thing, Osama Bin Laden and Ayman al-Zawahiri haven't spent even one second thinking about treating our guys with the benevolence that you'd show those who are of the same station as Reinhard Heydrich(the Butcher of Prague), Hans Frank, Heinrich Himmler, and Adolf Hitler. Men like Churchill and Roosevelt would laugh at you, and I can only chuckle at the fact that the very govt and military you condemn and ridicule is all that's standing between you and Bin Laden killing your family and everyone else you care about. The irony is thick among the ungrateful.

I'll close with the wise words of Lt. Col Nathan R Jessup, USMC:

Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Whose gonna do it? You? You, Lt. Weinburg? I have a greater responsibility than you could possibly fathom. You weep for Santiago, and you curse the marines. You have that luxury. You have the luxury of not knowing what I know. That Santiago's death, while tragic, probably saved lives. And that my existence, while grotesque and incomprehensible to you, saves lives. You don't want the truth because deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall. We use words like honor, code, loyalty. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, then questions the manner in which I provide it. I would rather you just said thank you, and went on your way, Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don't give a damn what you think you are entitled to.

If the gov't conditioned money on ND accepting Pro Choice recruiters, that's perfectly legal. It would be like if Notre Dame tried to ban gov't recruiters during the pro choice Clinton yrs but still demanded they get gov't money. No one would buy that.

Again, imagine this is 1944 and Harvard refuses recruiters because the military enforces segregation. But they still want the money so they go to the SCOTUS. What do you think the decision would be? My guess? 7-2 for the gov't.(maybe Murphy and Jackson dissent)

You still haven't addressed that even if the DADT thing were resolved, FAIR would concoct untold other reasons to oppose the military. That's what this is about, not DADT. We both agree on the constitutionality of the case. We just disagree on the policy/wisdom of it. But it's not the SC's job to decide cases based on policy. It IS theirt job to decide them based on the Constitution. My suggestion to you is to stop worrying about this case and to start worrying about electing Hillary or Mark Warner in 2008 and taking back the Congress. Then you can get DADT repealed and change the miltary's gay policy.

I mean the military doesn't allow blind/handicapped people or women in combat either. Let's say FAIR decided that they would refuse to allow the military recruiters because the discriminate against women or the handicapped, would you have the same position?

Should the law schools be allowed to deny access to the military because they discriminate against women and the disabled and still be allowed to receive federal funding? What is the difference between not allowing homosexuals and not allowing the blind/papraplegic/handicapped/disabled, not allowing women in combat, not allowing the elderly, etc...?

So, FAIR's argument is full of it, It's not about DADT, it's about being anti-military. If the military dropped DADT, FAIR would sue about women in combat. If they dropped that, they'd sue about he handicapped. And so on and so on. It's all about the law schools wanting to have their cake and eat it too. They want to be able to deny access to the mlitary and to still receive the funding. It just doesn't work that way.

As for your "1960 racist" claim. Most segregation had been declared illegal by then. However, the military was segregated during WW2. If FAIR brought a similar suit in 1944 and said we won't allow the military because they violate our nondiscrimination policy, the decision would be the same as it is now. If they don't want the military, they don't get the dollars.(In fact, under the raise and support armies clause I'd say the gov't can probably require the law schools to host the recruiters regardless of the funding issue, if Congress so decides) In the meantime, they can work to repeal DADT. Until they do, though, it's perfectly legal.

Notre Dame is a private University. If they don't want to allow pro choice recruiters, they don't have to. The govt isn't condintioning aid on ND allowing pro-choice recruiters. If ND was in a poisitiob to accept public money, and that acceptance was conditioned on them allowing a group that espouses pro choice views, then I'd say they'd be in the same position as FAIR. They don't have to accept the group, but then they don't get the money. It's pretty simple.

Right now abortion is legal and the gov't can't do anything about it. let's say that ND was getting federal money and then said that we won't allow federal access anymore because the gov't represents legalized abortion and carries out the death penalty(bnoth of which we're opposed to). do you think they'd be allowed to keep getting the money while not allowing federal access? Of course not. The same rules apply.

Also, you haven't even gotten in to the "raise and support armies" clause which clearly controls this case. Further you haven't answered the question about taxes. Under your theory, someone who opposes DADT could refuse to pay tazes and the gov't couldn't do anything abuot it. Is that what you contend? If not, what's the difference between that situation and this one?