WASHINGTON (AP) – The Supreme Court appeared ready Tuesday to rule against colleges that want to limit military recruiting on campus to protest the Pentagon’s policy on gays.

New Chief Justice John Roberts and other court members signaled support for a law that says schools that accept federal money also have to accommodate military recruiters. The justices seemed concerned about hindering a Defense Department need to fill its ranks when the nation is at war.

“There’s the right in the Constitution to raise a military,” Roberts said.

Law school campuses have become the latest battleground over the “don’t ask, don’t tell” policy allowing gay men and women to serve in the military only if they keep their sexual orientation to themselves.

A group of law schools and professors had sued the Pentagon, claiming their free-speech rights are being violated because they are forced to associate with military recruiters or promote their campus appearances. Many law schools forbid the participation of recruiters from public agencies and private companies that have discriminatory policies.

‘Two messages’

E. Joshua Rosenkranz, the lawyer for the schools, told justices: “There are two messages going on here and they are clashing. There is the military’s message, which the schools are interpreting as “Uncle Sam does not want you,’ and there is the school’s message which is “we do not abet those who discriminate. That is immoral.”‘

Justice Anthony M. Kennedy said: “Your argument would allow schools to exclude anybody in a uniform from a cafeteria.”

Justice Stephen Breyer said that many people disagree with government policies, but they are not allowed to get out of paying taxes or following laws because of that.

Outside court, about a half-dozen supporters of the law from Topeka, Kan., waved signs and yelled at reporters and passers-by in front of the court before the argument.

Dan Noble, 26, a gay Yale Law School student who camped out overnight to get a courtroom seat, said, “You feel discriminated against when some recruiters will interview your fellow students but won’t interview you.”

In an unusual move, immediately after the argument the Supreme Court released an audiotape to news organizations because of high interest in the case. Cameras are not allowed in court and recordings of the proceedings normally are not released until the end of the term.

A federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities, including their law and medical schools and other branches, give the military the same access as other recruiters or forfeit federal money.

Federal financial support of colleges tops $35 billion a year, and many college leaders say they could not forgo that money.

Justice Sandra Day O’Connor, who is retiring and probably won’t get to vote in the case, said colleges can post disclaimers on campus noting their objections to the military policy.

Rosenkranz said that when schools help military recruiters, like sending out recruiting e-mails on their behalf, then students think the schools endorse their messages – even with disclaimers.

Roberts on $100 million

Roberts fired back, “The reason they don’t believe you is because you’re willing to take the money. What you’re saying is, “This is a message we believe in strongly, but we don’t believe in it to the detriment of $100 million.”‘

Dozens of groups filed briefs on both sides of the case, the first gay-rights related appeal since a contentious 2003 Supreme Court ruling that struck down laws criminalizing gay sex.

The argument itself was lopsided, although a few justices seemed sympathetic to the opponents’ basic argument.

Justice David H. Souter told the Bush administration lawyer, Paul Clement, “You are forcing them, in effect, to underwrite your speech … you’re forcing them into hypocrisy.”

Justice Ruth Bader Ginsburg, a former women’s rights attorney, told Clement, “The pitch that’s being made is an equality pitch, that “we are teaching our students equality, the equal stature of all people.”‘

Clement, the solicitor general, responded that the colleges, in trying to teach against discrimination are discriminating against the military.

The law “allows the military a fair shot at recruiting the best and the brightest for the military’s critical and vital mission,” he said.

Defense Secretary Donald H. Rumsfeld told reporters Wednesday that “schools should make decisions for themselves – they’re free institutions, and they can decide what they wish to do.”

The court’s ruling is expected to take several months.

The case is Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152.

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Associated Press reporter Elizabeth White contributed to this story.

On the Net:

Audio of the court argument: http://wid.ap.org/audio/scotus/051206rumsfeld.rm

AP-ES-12-06-05 1909EST

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