Politics By Any Other Name

Strossen and Kozinski

Politics By Any Other Name

Strossen and Kozinski

Politics By Any Other Name
An email conversation about the news of the day.
Sept. 24 1998 7:14 PM

Strossen and Kozinski

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Nadine, I agree you have come up with a whole new angle on the Flytrap controversy. I think I'll pass it on to Ken Starr and maybe he can amend his report to add another cause for impeachment: Hypocrisy While in the Oval Office.

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Just kidding--it's been a long day. There is a serious point here, though. Politics is the art of the possible. Is it fair to blame the President for acquiescing to a policy he may have personally disagreed with, but which avoided what he considered a worse result--namely the complete ban from military service of gays and lesbians? Your disagreement, it seems to me, is not with the President (at least not on this issue) but with the Supreme Court for its Bowers v. Hardwick decision, which held that the government can make homosexual conduct criminal. Given this ruling, it seems very difficult to argue that the government cannot impose a lesser burden--like exclusion from the military. There is an excellent discussion of this point in a case I know you're familiar with, namely Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988). The Watkins majority (written by my former colleague Bill Norris), and the dissent (written by my colleague Steve Reinhardt) provide an excellent disquisition of this issue.

I do agree with you about the troubling First Amendment implications of the Don't Ask Don't Tell policy. As you know, my court affirmed the policy in Holmes v. California Army National Guard, but I joined a dissent by Harry Pregerson in which he argued that it is unconstitutional to base eligibility for government service on speech rather than conduct. It is possible that the Supreme Court will take this issue, so I'd better say nothing further.

Ciao. AK

Nadine Strossen is president of the American Civil Liberties Union and author of Defending Pornography. Alex Kozinski is a federal judge in California. He sits on the 9th U.S. Circuit Court of Appeals.