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But the Scouts, Your HonorLaw schools wield a ruling on gay scoutmasters against the military.

By Richard Thompson Ford
Posted Friday, May 6, 2005, at 12:13 PM ET

On Monday, the Supreme Court announced it would review the constitutionality of the Solomon Amendment, which denies federal funding to universities that won't allow the military to recruit on campus. The law sounds like a throwback to 1968, something that would affect a handful of radical schools on the fringe of the academic mainstream. In fact, the 31 law schools that sued to overturn it include some of the most prestigious in the nation.

Here's the back story. Many universities bar employers that discriminate on the basis of sexual orientation, among other things, from interviewing on campus or using the schools' career placement services. So a law firm that discriminates would be barred from putting its brochures in the career-development office. Likewise the Judge Advocate General, the legal arm of the military, which, like the rest of the armed services, does not employ openly gay homosexuals as a consequence of the "don't ask, don't tell" policy adopted in 1994. Accordingly, a number of law schools have for years refused to accommodate the JAG recruiters. For a time the recruiters worked around the ban, meeting with interested students in off-campus locations like hotels and ROTC program offices, but a cold war between the law schools and the military was under way.

The Solomon Amendment, Congress's response, hardly set the stage for a detente. The law's passage should have come as no surprise: After all, it gave politicians an opportunity to boost the military and bash gays and pointy-headed intellectuals, all in one vote. The Solomon Amendment will "send a message over the walls of the ivory tower of higher education," one of its sponsors, Rep. Richard Pombo, promised at the time. "Starry-eyed idealism comes with a price."

The Solomon Amendment makes that price extremely steep. If any department of a university excludes the military, the entire university loses all federal funding. (We could call this the "shock and awe" clause.) Harvard, Yale, and the University of Southern California, for example, each have said they stand to lose $300 million or more in research funds according to the terms of the statute unless their law schools open the door to JAG.

In the suit that the Supreme Court will hear next term, as well another suit filed separately, Yale and other schools argue* that the Solomon Amendment interferes with their First Amendment rights of expression and free association, by requiring them to help an employer that discriminates. Who will believe we sincerely oppose discrimination, they ask, if we buddy up to a notorious discriminator? At first blush the argument looks weak. The law doesn't force universities to accommodate the military: It only takes away their federal money if they don't. Since the government doesn't have to offer the money at all, isn't it free to offer it with strings attached? That depends on the strings: The government cannot condition benefits on relinquishing a constitutional right. Suppose a state offered tax breaks only to taxpayers who agreed to forgo a jury trial in any state criminal proceeding. If you didn't like the deal, you'd be free to turn down the tax breaks—but it's not hard to guess what would happen to the right to a jury trial. The government's first line of defense in this case won't hold: If requiring universities to accommodate the military violates the First Amendment, so does conditioning federal money on the accommodation.

But does it violate the First Amendment to require universities to accommodate the military in their career placement services? Here gay-rights advocates have an unlikely ally—a 2000 Supreme Court decision that said the Boy Scouts could keep out gay scoutmasters. In Boys Scouts of America v. Dale, the court held that a New Jersey law that required the scouts to admit members without regard to sexual orientation violated the group's First Amendment rights. Writing for the majority, Chief Justice William Rehnquist opined that forcing the scouts to admit homosexuals would impair the group's ability to express disapproval of homosexual conduct. The opponents of the Solomon Amendment make an almost identical argument about being forced to accommodate an employer that discriminates. The 3rd Circuit Court of Appeals accepted the analogy, holding that "just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout oath, the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness."

So, the Solomon Amendment, a law that protects discrimination on the basis of sexual orientation, may be undone by Dale, an opinion that protects discrimination on the basis of sexual orientation. It must be satisfying for gay-rights activists to throw the effectively anti-gay Dale opinion back in the faces of social conservatives. But in order to attack Solomon in this way, one has to endorse Dale, an incoherent mess of an opinion that threatens anti-discrimination laws nationwide. Dale doesn't deserve to be cited, much less extended; it deserves to be reversed. As Justice John Paul Stevens complained in his dissent in the case, before Dale the court had never held that an anti-discrimination law violated the First Amendment. And for good reason. If requiring the scouts to accept gay members violates their First Amendment right to express disapproval of homosexuality, doesn't making a lunch counter serve blacks infringe on its owners' First Amendment right to express disapproval of racial integration? (The New Jersey Supreme Court had held that the scouts were a "public accommodation" like a lunch counter, a bad call that deserves some of the blame here, too.)

The Dale majority tried to patch up this sizable hole by distinguishing "expressive associations," which would enjoy the newly minted First Amendment right-to-discriminate, from other institutions, which presumably would not. But the argument still doesn't hold water: The court didn't explain how to identify expressive associations or why it wasn't enough for the Boy Scouts to say they disapprove of homosexuality even as they accept gay scoutmasters. Similarly, it's not clear why the ability of law schools to protest "don't ask, don't tell" doesn't satisfy the First Amendment, even if they have to share the halls with JAG recruiters during job-hunting season.

The Solomon Amendment is a ham-fisted law that effectively punishes criticism of the government, but it would be constitutional if not for Dale. Given Dale, it ought to be scrapped. Dale, however, is a confused and dangerous opinion likely to sow confusion in lower courts for decades to come. I'd love to see them both go; forced to choose, I hope the court will spare Solomon and ditch Dale. But the case is only five years old—a cub scout of legal precedent—and judges hate to admit they were wrong. More likely the Supremes will apply Dale to strike down Solomon. Can the court uphold the Solomon Amendment and hang on to Dale? Not without abandoning principled decision-making altogether. I'm confident the nation's highest court would never stoop to that. But I'm told my starry-eyed idealism comes at a price.

Correction, May 9: The original article incorrectly stated that Harvard, Yale, and USC participated in the suit challenging the Solomon Amendment that is before the Supreme Court. USC and Harvard have not identified themselves as plaintiffs in the suit. Members of the Yale law school faculty filed a separate suit that has been stayed pending the Supreme Court's decision. Return to the corrected sentence.

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Richard Thompson Ford is George E. Osborne Professor of Law at Stanford Law School. His forthcoming book The Race Card will be published this month.
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