Perkins distorts Kagan quote to falsely suggest Kagan defied the Solomon Amendment

Perkins falsely claims Kagan said “she hoped 'that the Department [of Defense] would choose not to enforce' ” the Solomon Amendment. In a May 26 Washington Times op-ed, Perkins misled about Kagan's statements about the Solomon Amendment -- which stated that universities that do not provide equal access to military recruiters as they do to other recruiters cannot receive certain federal money. From Perkins' op-ed:

Despite the fact that the [Solomon Amendment] law was still on the books, despite the appeal, despite the stay of the ruling and despite the fact that Cambridge, Mass. is not even under the jurisdiction of the 3rd Circuit, Ms. Kagan jumped on this thinnest of reeds and announced that she would once again deny the military any cooperation from her school's career-services office. She knew the law was still on the books, but she said she hoped “that the Department [of Defense] would choose not to enforce” it. This action did not show the kind of respect for the legislative branch, respect for the courts or respect for the law in general that should be the bare minimum qualification for an appointment to the federal bench.

Kagan actually said she “hoped” DOD would not enforce "its interpretation" of the Solomon Amendment

Kagan actually expressed “hope” that, after the 3rd Circuit ruled the law unconstitutional, the DOD “would choose not to enforce its interpretation” of the Solomon Amendment. Perkins' assertion that Kagan “said she hoped 'that the Department [of Defense] would choose not to enforce' ” the Solomon Amendment is false. In fact, in 2004, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First Amendment free-speech rights.

Following the 3rd Circuit decision, Kagan briefly reinstated restrictions on military recruiters at Harvard Law School, of which she was the dean. As Kagan explained in a September 2005 letter to her colleagues, she believed the military was misinterpreting the Solomon Amendment and said: “My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood.” From Kagan's letter:

I continued this exception in effect, for the same reasons, through the 2003 and 2004 fall recruiting seasons. In the meantime, a consortium of law schools and law school faculty members (FAIR) brought suit challenging the Defense Department's policy on constitutional grounds. Harvard Law School is not a member of FAIR, but 54 faculty members, including me, filed an amicus brief in that suit articulating different, statutory grounds for overturning the Department's policy. In November 2004, the Court of Appeals for the Third Circuit issued a decision in the FAIR case, holding that the Defense Department's policy violates First Amendment freedoms. The Supreme Court granted review of this decision; the Third Circuit's ruling is stayed pending the Supreme Court's decision, which is expected later this year. (Much the same group of HLS faculty members, including me, will file an amicus brief tomorrow in the Supreme Court litigation. I also understand that the University expects to join an amicus brief filed by Yale and other universities.) Although the Supreme Court's action meant that no injunction applied against the Department of Defense, I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit's decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season. My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services. As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season. [emphasis added]

Kagan and 39 other Harvard law professors argued that DOD was misinterpreting the Solomon Amendment. Kagan (as a Harvard Law professor, not dean) joined a Supreme Court brief filed on behalf of 40 Harvard law professors. The brief argued that the government's interpretation that the Solomon Amendment required schools to provide full access to military recruiters was incorrect. The brief argued that the Solomon Amendment did not require schools to provide special access to military recruiters. Thus, because Harvard applied the same anti-discrimination policy to the military that it applied to all employers, Harvard was not in violation of the Solomon Amendment. From the brief:

First, the Solomon Amendment's prohibition on funding is triggered only by policies that target the military or its recruiters for disfavored treatment. Second, once it is understood that evenhanded recruiting policies are beyond the statute's ken, it is clear that Harvard Law School in full compliance -- and the same is likely true of the vast majority of United States law schools.

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Accordingly, this case is not -- and never has been -- about whether law schools may “discriminate” against the military or whether they must provide “equal access” to military recruiters. Instead, the question is whether the Solomon Amendment confers upon military recruiters the unprecedented entitlement to disregard neutral and generally applicable recruiting rules whenever a school's failure to make a special exemption might incidentally hinder or preclude military recruiting. The answer is “no.”

The statute actually passed by Congress requires no such special exemptions. Instead, it targets university policies that “prohibit[], or in effect prevent[]” military recruiters "from gaining access" to campuses and students "in a manner that is ... equal in quality and scope" to that provided to any other employer.

The Supreme Court rejected the interpretation of the Solomon Amendment put forward by the Harvard professors.

Kagan's objections to DADT are mainstream, and her willingness to comply with and, as solicitor general, defend the Solomon Amendment demonstrates devotion to the rule of law. Kagan's moral objection to Don't Ask, Don't Tell is hardly “extreme” as Perkins alleged. For example, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has suggested that the ban on openly gay service members compromises the military's “integrity.” Moreover, during her confirmation hearing as solicitor general in 2009, Kagan pledged to defend the Solomon Amendment.

Kagan's support of the military is well established. Kagan has repeatedly praised the military -- describing it as the “noblest of all professions” -- even while opposing the Don't Ask, Don't Tell policy. Military veterans at Harvard Law have affirmed Kagan's support for the military.

Perkins resorts to anti-gay attack to smear Kagan

Perkins attacks Kagan for arguing that it is “not just” to discriminate on the basis of sexual orientation. From Perkins' op-ed:

The brief Ms. Kagan signed [arguing against the constitutionality of the Solomon Amendment] began with a sweeping declaration that is startling in its implications. The professors declared, “We are deeply committed to a fundamental moral principle: 'A society that discriminates based on sexual orientation -- or that tolerates discrimination by its members -- is not a just society.' ”

To recognize any distinction whatsoever -- to “discriminate” -- between the only type of sexual relationship that can reproduce the human race and a non-procreative type of relationship that has given us an epidemic of sexually transmitted diseases is “not just”? I would argue that failing to make such a distinction is not realistic, not honest and not credible.

Note that Ms. Kagan and the professors condemn not only a society that “discriminates,” but one “that tolerates discrimination by its members.” The implications of this are chilling for the freedom of speech and the freedom of religion. It should be frightening not only to the majority of Americans who still affirm that homosexual behavior is morally wrong, but especially disturbing to those whose views on homosexuality are the result of an orthodox view of the Bible, which clearly characterizes homosexual conduct as sinful. It also should be alarming for those of us who live in the 45 states that still define marriage as the union of a man and a woman.

Does Ms. Kagan not think the Constitution protects those who say publicly that homosexual conduct is harmful to both individuals and society and who teach in our homes and churches that it is wrong? What exactly do Ms. Kagan and her allies intend to do to end such “toleration” of our traditional moral views in order to achieve their vision of a “just” society?

This history makes it clear that Ms. Kagan is part of a movement that is willing to sacrifice our freedoms for the sake of a narrow ideological agenda. That might make her well-suited to the liberal halls of academia, but it makes her clearly unfit for the Supreme Court.

In fact, some courts have rejected the argument that discrimination on the basis of sexual orientation is related to “government interests in procreation and child-rearing.” Perkins argued that Kagan's view that the United States should not discriminate “between the only type of sexual relationship that can reproduce the human race and a non-procreative type of relationship that has given us sexually transmitted diseases” “is not realistic, not honest and not credible.” But in fact, some state courts have explicitly rejected the argument that procreation and child-rearing bear any relationship to discrimination on the basis of sexual orientation in the same-sex marriage context. For instance, in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court stated that the Massachusetts same-sex marriage ban was not based on a procreation rationale because Massachusetts law “contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce.”

Furthermore, First Amendment scholar Volokh predicts that -- like Justice Ginsburg -- Kagan will likely be “generally pretty speech-protective.” Perkins invokes fear that Kagan's views on discrimination “are chilling for the freedom of speech.” In fact, libertarian law professor and First Amendment expert Eugene Volokh examined Kagan's scholarship on the First Amendment and concluded that “the likeliest bet” is that Kagan would be “generally speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view.” Volokh wrote:

On then to my own evaluation of the First Amendment articles: I think they're excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan's Private Speech, Public Purpose article, see, e.g., PDF pp. 8-9). But I like them a lot.

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My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is -- generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.

Former Chicago Law School Dean Stone: Kagan approached First Amendment issues “without even a hint of predisposition.” Geoffrey R. Stone, a law professor at the University of Chicago who was dean when Kagan was hired there, wrote in a May 10 article:

In her formative years as a scholar, Kagan wrote a series of illuminating articles about freedom of speech. They were illuminating not only because they shed interesting light on the First Amendment, but also because they reveal a lot about Kagan. In an area rife with ideology, her articles addressed complex and weighty legal questions without even a hint of predisposition.

In one early essay, she addressed the provocative issue of hate speech. After examining the question in a rigorous, lawyerlike manner, she came out in full support of a highly controversial 5-4 decision authored by none other than conservative Justice Antonin Scalia, which held that the government cannot constitutionally ban hate speech. Kagan reached this result even though it was clearly contrary to the liberal orthodoxy at the time.

Even Fox News' Megyn Kelly says Kagan “seems pretty middle of the road” on “free speech matters.” From the May 11 edition of The O'Reilly Factor (retrieved from Nexis):

KELLY: Well, I have to say on free speech, Elena Kagan, so far this is something she's written a lot about, seems pretty middle of the road. I don't expect her to be a far left liberal on free speech matters.