Why FAIR Was Fair

On December 6, the Roberts Supreme Court heard its first case dealing with a gay rights issue. It released its unanimous decision last week and many in our community are praying that this will not be a sign of things to come.

The case, called Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), asked whether the government could withhold federal funding to universities that refuse to allow the military to recruit on their campuses, even when those universities have policies preventing discrimination based on sexual orientation that conflict with Don’t Ask, Don’t Tell. I believe that many instinctively wanted the court to require the government to abide by those policies because we believe in nondiscrimination. They saw this case as a way to further the gay rights movement.

Unfortunately, the consequences of a verdict upholding this conviction could have had a devastating effect on the LGBT community and that is why I believe that FAIR was fairly decided.


This case was based on the premise that organizations should not be made to disseminate a message with which they disagree. In the case, the universities were asserting that their First Amendment right to express their beliefs, as stated in their non-discrimination policies, were being trampled on by the government’s ability to force military recruitment on their campuses.

Sounds pretty compelling, doesn’t it? I certainly don’t want to be forced to say something I don’t believe in.

There are a number of reasons, however, that make me believe that the court came to the correct conclusion. The first, and most important, is that if the court agreed with the plaintiffs, a group of law school professors, then they would have created the possibility, and precedent, for any other organization in the future to say that their values don’t support equality for gay people, and therefore they should not be forced to abide by a non-discrimination policy that conflicts with those values. It could have given anyone a First Amendment right to refuse to comply with a law that they disagree with on principle. The effect of that could hurt our community in ways we have not even dared to imagine.

One other reason for my view is that the plaintiffs in this case were using the Boy Scouts of America v. Dale case as a reliable precedent for what they were asking. In that case, the court said that the Boys Scouts organization could ban gay scout leaders because being gay is against their core beliefs, thus affecting their right to disseminate their message of choice. As an attorney, I am all for being creative and using everything in the arsenal to win a case. However, the Dale case was wrongly decided and stands for all that we are fighting against. Using it to create a right to exclude the military from college campuses was a bad decision by the plaintiffs not only because of the potential for harm if they had won the case, but also because the use of Dale would only strengthen a decision with which many, myself included, disagree.

I absolutely disagree with Don’t Ask, Don’t Tell and the Solomon Amendment, which threatens the refusal of federal funding if military recruiters are not allowed on a campus. Don’t Ask, Don’t Tell is a shameful piece of fear-based legislation and the Solomon Amendment is coercive to say the least, and probably illegal on its own. But this case did not provide the court with the ability to address either law specifically or effectively. We need to press Congress to change them or we must provide the court with a case that offers the rationale for invalidating them.

Ultimately, the court did little damage to First Amendment law and even corrected the law on Dale in some minor but useful ways. While I agree that universities should not be forced to violate their own nondiscrimination policies by allowing military recruitment on their campuses, I don’t want that to happen at the expense of a First Amendment that may be our last best hope of gaining full equality once and for all.

Anthony M. Brown served as research assistant to Nan Hunter, founder of the Gay and Lesbian Project at The ACLU, and helped prepare the brief for Lawrence v. Texas while interning at Lambda Legal in 2002. He currently heads the Nontraditional Family and Estates Law division of the law firm of McKenna, Siracusano & Chianese and is on the board of directors of The Wedding Party. He can be reached at Brown@msclaw.net.