Elena Kagan’s Courage on “Don’t Ask, Don’t Tell”

President Obama has made a decision that could impact us for years to come by selecting Elena Kagan, Solicitor General of the United States, as his nominee for the country’s 112th Supreme Court justice. If she is confirmed, what will this mean for LGBT Americans and the future of gay rights?

Kagan has been warmly welcomed by some groups, and rabidly opposed by others. Some say she has a strong track record with conservatives, while others say she has a strong record with progressives. In many ways, it seems, Kagan remains a mystery.

But Kagan has not been so silent about “Don’t Ask, Don’t Tell,” the U.S. military policy that punishes openly gay troops with a discharge, and prevents openly gay people from enlisting in the military.

Kagan, as dean of Harvard Law School, stood up against the military’s “Don’t Ask, Don’t Tell” policy. Travel back in time to 2002, when Harvard used to bar military recruiters from their campus because the military’s “Don’t Ask, Don’t Tell” discriminatory policy. That year, the school began allowing recruiters on campus, after pressure from the Bush administration.

In an email to students and faculty at the time, Kagan responded to the “Don’t Ask, Don’t Tell” policy, stating: “I abhor the military’s discriminatory recruitment policy.” Kagan didn’t just make statements against “Don’t Ask, Don’t Tell,” however. She put her convictions into action.

In protest of the discriminatory policy, Kagan attempted to continue to bar military recruitment on campus. In January 2004, she signed an amicus brief to challenge the Solomon Amendment, which denies federal funds to schools that bar military recruiters. When the appeals court ruled that Solomon was unconstitutional in November 2004, Kagan immediately barred military recruiters from the main career office. She continued to allow recruiters access to students through the student veterans’ group, but took a clear stand against the discriminatory recruiting process.

Unfortunately, her success was short-lived. In the summer of 2005, The Pentagon told Harvard Law School that it would withhold funds as long as recruiters were barred from the main career office. She and other law professors signed an amicus brief urging the U.S. Supreme Court to declare Solomon unconstitutional, but the Supreme Court ruled against them.

While Kagan’s efforts to keep discrimination out of Harvard Law School’s career office ultimately failed, it is exciting that the next Supreme Court justice may be opposed to “Don’t Ask, Don’t Tell.” She showed her desires to confront bigotry and her ability to use the law to prevent discrimination. In attempting to fight against the Solomon Amendment, she showed that she can build a coalition and exercise good judgment. Even though the Solomon Amendment wasn’t struck down, Kagan showed that she has the skills necessary to make a good Supreme Court justice.

Photo credit: Kyle Rush