The Supreme Court and gay sex
Jeffrey Toobin in The New Yorker:
When the Supreme Court reconvenes, in October, presumably with a Justice Roberts in the junior seat, the Court will return to the “homosexual agenda.”
Mr. Toobin refers here to the legal battle over the Solomon Amendment, which directs the Government to withhold funds from universities that prohibit recruitment by the military. Several law schools, which now bar on-campus recruitment to protest the Pentagon’s “don’t ask, don’t tell” policy, brought suit to have the Amendment overturned. The schools claim it infringes on their First Amendment rights.
The Supreme Court — with a newly seated Justice Roberts in attendance — will hear oral argument in the case on November 29. The law schools should expect to lose. There is, after all, a difference between constitutional rights and public benefits. The former are guaranteed; the latter are contingent on the mercies of Congress. Among other things, the First Amendment guarantees our right to express our opinions; it doesn’t guarantee that Congress will subsidized them.
That’s not exactly accurate. First of all, the law schools in question did not bar military recruiters in “protest”—they did so pursuant to a policy of the American Association of Law Schools that explicitly forbids them from allowing recruiters on campus who refuse to sign a statement saying that they do not discriminate on the basis of race, gender, or sexual orientation.
Also, in terms of the difference between rights and benefits, the Supreme Court would disagree with you. Under the doctrine of “unconstitutional conditions,” the government conditioning benefits on conduct is the same as the government mandating the conduct directly. Thus if requiring law schools to admit military recruiters to their campuses is an abridgement of their First Amendment rights, conditioning funding on this conduct would be as well.
There are exceptions to this rule, but—as noted by both the Appelate and District Courts—they do not apply to this case. So the real question the case turns on is whether the law schools’ asserted right is protected in the first place. And—in terms of the Supreme Court buying that it is—it looks like the schools are going to have an uphill battle.
Sidenote: There’s an interesting article about the law schools’ choice of argument (relying heavily on Boy Scouts v. Dale) and its implications (if the Supreme Court sides with the schools) here.
Also another good article arguing in favor of the law’s constitutionality here (although she’s wrong about the unconstitutional conditions part).
Josh, you’re right that, precisely speaking, the schools are complying with AALS policy and not directly protesting Government policy. Of course, but for “don’t ask, don’t tell,” we probably wouldn’t have a problem here. So my shorthand isn’t that far off the mark. (And while we’re being precise, “don’t ask, don’t tell” is not, as I described it, Pentagon policy; it’s congressional policy, albeit one the Pentagon supports.)
As for the Court disagreeing with my distinction between rights and benefits, I don’t think so. A woman has a right to an abortion, for example; but she doesn’t have a right to the public financing of it. That’s not just my view; that’s the Court’s view, too.
And although it is true, as you note, that the Government cannot mandate an unconstitutional action as a condition for receiving federal funds, that is not the case here — unless you believe that the Government advancing its interest in military recruitment is unconstitutional.
In FCC v. League of Women Voters, the Court said the Government may not condition federal money to radio stations on programming content. But this is quite different. Here, the Government’s goal is not only legitimate and constitutional, but directly related to its very purpose.
Here’s the short of it: the law schools want to continue to receive public money while registering their objection to a lawful policy with which they disagree. That the First Amendment does not require.