Editor: You and other Greenberg Traurig lawyers were Of Counsel on the amicus brief that the Atlantic Legal Foundation filed with the United States Supreme Court in the Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) case, decided earlier this year. Tell us about that case.
Sellinger: Rumsfeld v. FAIR is a fascinating case involving some very important social and political issues. To understand it thoroughly, though, we have to take a few steps back in time. In the 1970s, law schools began to expand their long-established policies of nondiscrimination as to race, gender and religion to include prohibiting discrimination based on sexual orientation. This policy contrasted sharply with the position taken by the United States military, which often recruited at law school campuses, namely, that homosexuality is incompatible with military service.
Finding the military's position at odds with their nondiscrimination policies, in the 1980s some law schools began refusing to provide access and assistance to military recruiters. In 1993, the military modified its stance somewhat by implementing a so-called 'don't ask, don't tell' policy under which service personnel, while still subject to discharge for demonstrating homosexual conduct or orientation, could no longer be asked to divulge their sexual orientation.
Nevertheless, many law schools continued to refuse access to recruiters. Accordingly, in 1994, Representative Gerald Solomon of New York introduced an amendment that proposed to withhold Department of Defense funding to any educational institution that had a policy of denying or effectively preventing the military from being on campus for recruiting purposes. The Solomon Amendment was enacted, and its penalty provision was later expanded to include withholding funds from other federal agencies, not just DOD. After September 11, 2001, DOD stepped up enforcement of the Solomon Amendment, interpreting the law to require that, in addition to being allowed access to campuses, military recruiters also had to receive treatment equal to that accorded to any other employer's recruiters.
Editor: As you describe this progression of events, it sounds as though a legal confrontation was all but inevitable.
Sellinger: You're right, and that's exactly what happened. In 2003, the Forum for Academic and Institutional Rights, an association of law schools and law faculty, brought suit in New Jersey district court seeking to enjoin enforcement of the Solomon Amendment, claiming that the law was unconstitutional because it violated the law schools' right to free speech. Specifically, FAIR claimed that enforcement of the Solomon Amendment significantly affected the law schools' ability to express their viewpoint regarding discrimination based on sexual orientation and, in fact, compelled them to disseminate the opposite message.
The district court found that FAIR's constitutional claim required intermediate scrutiny; in other words, the court said that its task was to determine whether the government action at issue furthers an important government interest that would be achieved less effectively without that action. Based on that level of scrutiny, the court denied FAIR's request for injunction.
The Third Circuit reversed, however, finding FAIR's claim to require strict scrutiny, meaning that, to pass constitutional muster, the Solomon Amendment must be shown as narrowly tailored to serve a compelling government interest and must use the least restrictive means of promoting the government's asserted interest. The Third Circuit found that the government had not met this heavy burden. Indeed, the court said that not even the intermediate level of scrutiny advocated by the district court had been met because the government had provided no evidence that the law schools' bar of military recruiters from using their services would hurt the military's recruiting efforts.
Editor: And this takes us up to the Supreme Court. How did you and your firm become involved?
Sellinger: I sit on the board of the Atlantic Legal Foundation. ALF saw the issue presented in this case as important to its mission and decided to file an amicus brief. In fact, ALF's Senior Vice President and General Counsel, Marty Kaufman, had already started drafting. Marty correctly perceived that, because of the Third Circuit's statement that it had seen no proof that on-campus recruiting was essential to the military, what was needed here were top-tier military people who would serve as amici and would provide for the Supreme Court exactly the kind of evidence that the Third Circuit had found lacking.
I knew that Greenberg Traurig could get this done. We have a significant and very dynamic government affairs department and appellate practice group, well versed in constitutional law. Moreover, Joe Reeder, who is the Managing Shareholder of our Washington office, is a former Deputy General Counsel of the Army. I offered our firm's services in getting the amici on board, and, within just a short time, Joe Reeder had lined up 29 highly-prominent amici from all four branches of the services, including former Secretaries of Defense and retired three- and four-star generals.
Editor: You mentioned that you were able to locate amici very quickly. Was timing an issue?
Sellinger: It certainly was. ALF had learned about the case fairly late in the game, and, by the time my firm was brought in, the deadline for filing the Supreme Court brief was only a week away. As I mentioned, Marty had already begun a draft, but we would generally want to have several weeks to work on a brief of this significance. Because of this time crunch, we lost no time in organizing a Greenberg Traurig attorney team to start work. Primary team members, in addition to myself and Joe Reeder, were John Einwechter, Todd Schleifstein and Helen Kleiner, who helped Marty take the brief over the finish line.
Editor: Do you believe that ALF's amicus brief affected the Supreme Court's decision to rule in favor of the government?
Sellinger: There's no question that it did. The Third Circuit had seriously questioned whether the Solomon Amendment was necessary and effective and had suggested that the military has ample resources to recruit through alternative means such as loan repayment programs and television and radio advertisements.
The amici were able to explain, very convincingly and in some detail, just how vital intensive recruiting campaigns are to the military, particularly since military service has become voluntary. They also pointed out that the increasing complexity of the requirements for military service makes recruiting from colleges and universities a 'must.'
I have no doubt that the Court considered these opinions very carefully, given that they were informed by decades of experience and accomplishment at the very highest levels of our nation's military leadership.
Editor: You've worked with a good many corporate counsel. Why would they be interested in the outcome of this case? And what is ALF's interest?
Sellinger: Corporate counsel are citizens just like everyone else. As such, they have a personal stake in seeing that the best and brightest are recruited for our Armed Forces. They also have to be concerned that their corporate clients and those clients' global properties are adequately protected. ALF's interest is also clear. ALF's general mission is to advance the rule of law in our judicial system by advocating important principles such as individual liberty, free enterprise, limited but effective government and the use of sound science in the courtroom, and it offers qualified legal representation to individuals, corporations or organizations where, as in this case, one or more of these principles are implicated.
Editor: What was it like for you personally to participate in this case?
Sellinger: I'm a trial lawyer, but most of my work is in the commercial, not the constitutional, arena. In fact, much of my work over the last several years has involved class action defense. Handling a case with far-reaching constitutional dimensions such as this one was, therefore, really exciting and challenging. I especially enjoyed working with my appellate practice colleagues at Greenberg Traurig, who face these important constitutional issues - and argue before the Supreme Court - on a regular basis.
Editor: Thanks so much for sharing your thoughts and observations with our readers. Your experience on this case typifies the valuable work that ALF does in promoting the rule of law and effective government. We hope that your efforts will serve as a model for our readers and will stimulate them to encourage their law firm partners to become involved in the important cases and issues of our day.