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Here is your weekly op-ed by Deb Price from the Detroit News:
Will Roberts steer court to protect rights of gays?
By Deb Price / The Detroit News
Monday, November 28, 2005
The red velvet curtain rises Dec. 6 on a new era: The U.S. Supreme Court will turn its attention to a gay-related case for the first time since Chief Justice John Roberts replaced the late William Rehnquist.
The nine justices will hear arguments over whether the Pentagon should continue to be allowed to strong-arm more than 150 law schools into sending a message at odds with their belief that anti-gay job discrimination is wrong.
The high court will rule on the constitutionality of a federal law that pressures law schools into welcoming military recruiters by threatening their entire universities with the loss of federal research dollars that are their life's blood. To get a sense of how serious a threat that is, consider normally gay-friendly University of Michigan: It would lose "several hundred million dollars annually" if it refused military recruiters, says spokeswoman Julie Peterson.
This case won't decide the constitutionality of the Don't Ask, Don't Tell ban on gays serving openly in the military. Instead, this is about free speech. So the actual decision will probably reveal far less about how Roberts views the rights of those of us who're gay than about his interpretation of First Amendment protections.
In fact, Roberts and a majority of his colleagues could uphold the law being challenged by the Forum for Academic and Institution Rights -- a group of law schools that doesn't include Michigan -- without rendering an anti-gay decision. That depends on the ruling's language and reasoning.
The court tends to defer to the military, so don't be quick to bet the Pentagon will lose.
But as the court wrestles with Rumsfeld v. FAIR, watch for hints about the chief justice's views:
Do Roberts' tone and choice of words in questions to attorneys say anything about his attitudes toward gay Americans?
As chief, Roberts decides who writes the decision -- if he's in the majority. His choice of author could be telling. Would he steer the task to John Paul Stevens, Anthony Kennedy or David Souter, all known for handling gay pleas respectfully? Or would Antonin Scalia be invited to fire off a scornful diatribe?
The high court should side with the Third Circuit Court of Appeals' preliminary ruling against the Pentagon. The Supreme Court has long restricted how much government may interfere with freedom of speech. In 1977, it declared New Hampshire could not penalize motorists who balked at displaying "Live Free or Die" on license plates.
As attorney Ken Choe of the American Civil Liberties Union explains, "Government can't do indirectly what it can't do directly" -- bully people into saying what they don't want to say.
The Bush administration warns that overturning the challenged law "would undermine military recruitment during a time of war." But Don't Ask is what harms the military: It makes millions of patriotic openly gay Americans ineligible to serve, boots out much-needed gay soldiers like Arabic translators and battlefield-ready surgeons, and alienates gay-friendly youths.
Plus, only law schools with policies against anti-gay recruiters were targeted. Law schools that advocate pacifism for religious reasons and, therefore, keep out military recruiters aren't being threatened with a loss of federal funds.
In its last decade, the Rehnquist court, over the objections of its namesake, recognized the basic constitutional rights of gay Americans. The Roberts court, we can hope, will continue on that path, playing its historic part in dismantling discrimination.