- The Washington Times - Wednesday, May 26, 2010

ANALYSIS/OPINION:

What President Obama’s Supreme Court nominee, Elena Kagan, lacks in a judicial record she makes up for in her history as a forceful advocate of left-wing ideology.

The most clear-cut manifestation of this ideology was her treatment of military recruiters while she was dean of the Harvard Law School. Ms. Kagan has been an outspoken opponent of the law passed by Congress in 1993 prohibiting open homosexuality in the military. In 2005, she wrote to the Harvard Law School community, “I believe the military’s discriminatory employment policy is deeply wrong - both unwise and unjust.” In 2003, her language had been even stronger. She declared, “I abhor the military’s discriminatory recruitment policy.” She called the policy “repugnant.” In fact, she said, “This is a profound wrong - a moral injustice of the first order.”

Really? “A moral injustice of the first order”? So, restricting sexual conduct in an institution requiring high levels of discipline is comparable to, say, slavery or the Holocaust? This suggests a dramatic lack of perspective on the meaning of both morality and justice.

As dean of Harvard Law School, Ms. Kagan did everything in her power to resist complying with another federal statute. Many liberal universities, including Harvard, forbid cooperation with employment recruiters that “discriminate” based on “sexual orientation” - such as the military. Congress, recognizing the importance of effective and widespread recruiting to the success of the military, passed a law known as the Solomon Amendment (after its author, the late U.S. Rep. Gerald Solomon, New York Republican), requiring any school that receives federal funding to welcome and assist military recruiters.

However, it was not until 2002 that the Department of Defense began to enforce the Solomon Amendment and Harvard reluctantly began to cooperate again with military recruiters. It was after Ms. Kagan had become dean in 2003 that she wrote for the first time to make clear just how grudging that cooperation was in light of the military’s “repugnant” practices.

In 2004, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit voted 2-1 to strike down the Solomon Amendment as unconstitutional. However, the case was appealed immediately to the Supreme Court, and the circuit court’s ruling was stayed pending the appeal.

Despite the fact that the 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.

Fortunately, the Department of Defense made it clear that it would continue to enforce this law, and Ms. Kagan once again grudgingly agreed to cooperate. However, she simultaneously signed on to a brief to the Supreme Court defending discrimination against the military.

This brief, representing a group of law professors, put forth a bizarre legal argument. Congress’ intent in passing the Solomon Amendment was clearly to override the kind of “sexual orientation nondiscrimination” policies that were being applied to military recruiters. Yet Ms. Kagan and the other professors claimed that schools complied with the “equal access” requirement by providing the military with access equal to any other “discriminatory” employer - in other words, none.

The Supreme Court, however, in a unanimous decision, not only upheld the Solomon Amendment, but dismissed the law professors’ absurd argument, saying, “That is rather clearly not what Congress had in mind … and indeed would render [the law] largely a meaningless exercise.” Is someone who would endorse such a baseless argument really the kind of outstanding legal mind that we seek in a Supreme Court justice?

The brief Ms. Kagan signed 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.

Tony Perkins is president of the Family Research Council in Washington.

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