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
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
posted by SarahWeddington | 12:26 PM
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