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Top Stories This Week in the Chronicle.
February 11, 2005

House supports anti-gay law already ruled unconstitutional

All but two Ohioans voted for the measure

Washington, D.C.--In an attempt to look pro-military, the House of Representatives approved a resolution in support of an anti-gay law that has been ruled unconstitutional.

The vote was taken February 2 on a non-binding �sense of the Congress� resolution in support of the Solomon Amendment. The 1994 measure prohibits federal funds, including student financial aid, from going to institutions of higher learning that bar military recruiters due to the ban on lesbian, gay, bisexual and transgender servicemembers.

The Third Circuit Court of Appeals ruled the Solomon Amendment unconstitutional on November 29. The court used the logic of two cases formerly used to uphold discrimination against LGBT people, essentially telling the government and anti-gay institutions they cannot have civil rights and equality both ways.

The court applied U.S. Supreme Court decisions from 2000 and 1995: Boy Scouts of America v. Dale giving the Scouts the right to keep out gay members and leaders, and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston allowing St. Patrick�s Day parade organizers to exclude a gay group.

All three cases involve the definitions of �expression� and �compelled speech.�

�The Solomon Amendment unconstitutionally conditions funding on a basis that infringes law schools� constitutionally protected interests under the First Amendment doctrine of compelled speech,� ruled the court.

But members of Congress disagree, and say that the needs of the military should trump the First Amendment rights of the universities.

The resolution, sponsored by Rep. Mike Rogers, R-Alabama, urges the Bush administration to appeal the matter to the U.S. Supreme Court and attempts to create political opposition to the ruling. It passed 327-84. Twenty-two members did not vote.

All House Republicans voted for the resolution. They were joined by 104 Democrats. Independent Bernie Sanders of Vermont voted against the measure.

Only two Ohioans, Reps. Dennis Kucinich of Cleveland and Sherrod Brown of Akron, voted against it.

Among LGBT house members, Massachusetts Rep. Barney Frank and Wisconsin Rep. Tammy Baldwin, both Democrats, voted against it, while Arizona Republican Rep. Jim Kolbe voted in favor.

California Republican David Dreier, who was outed last year by several publications including L.A. Weekly and Hustler, also voted for the resolution. So did Reps. Mark Foley, R-Fla., outed in 2003 by the West Palm Beach New Times, and Jim McCrery, R-La., outed in 1992 by the Advocate.

Neither Kolbe nor Dreier responded to calls for comment for this report.

Democrat Rep. Stephanie Tubbs Jones of Cleveland also did not respond.

Cincinnati area Republican Rep. David Boehner spoke in favor of the resolution on the House floor.

�Denial of access and equality to military recruiters by colleges that receive federal funds is an insult to the taxpayers who help subsidize higher education in this country,� said Boehner. �Many nations have mandatory military service for their citizens.�

Democrat Lynn Woolsey of California led the floor opposition to the resolution, saying, �Today, we are debating a resolution in support of the Solomon Amendment. If this House of Representatives votes to support that resolution, we will be putting the Congress on record as supporting absolute senseless discrimination.�

Woolsey continued, �The resolution says it is about equal access for military recruiters at institutions of higher education. But in reality, it is about allowing the military to avoid the consequences of discrimination, the same consequences that any other employer would have to face if it discriminated.�

Kucinich called passage of the resolution �an unfortuante demonstration of this Congress� hypocrisy.�

�Universities should not be forced to compromise their non-discrimination policies by giving special access to military recruiters, nor should they be punished for standing by those policies,� said Kucinich.

Ohio Democrats who supported the resolution treated the matter as though the universities were trying to discriminate against the military.

Rep. Marcy Kaptur of Toledo said, �I have always believed that universities should be places that are open to all opinions and point of views. Our First Amendment right of free speech requires it.�

Rep. Ted Strickland, who represents southeastern Ohio, agreed that the resolution supports an anti-gay provision, but added, �I am concerned with efforts of both sides to limit ideas on both sides. I used to teach at the university level and I believe that every point of view should be expressed.�

�When the [1993] vote was before Congress, I voted against �don�t ask, don�t tell� initially,� said Strickland, �then for the compromise because I knew it was the best we could get. It�s not the right policy, but to me, this issue can go both directions.�

Ryan Keating, a spokesperson for Rep. Tim Ryan of Warren, said Ryan�s support of the resolution �needs to be interpreted in the context of what the military is going through right now.�

Keating said Ryan �opposes discrimination, even in the military,� but �given the strains on the military and the possibility of a draft, now is not the time to allow colleges to not allow recruiters. The message to colleges is not now, not at this time.�

The Bush administration is expected to appeal to the U.S. Supreme Court.

 

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