While I disagree with the existing law banning gays and lesbians from military service, I find myself rather puzzled by today’s ruling by the Third Circuit that the Defense Department cannot enforce the federal law withholding funds from schools that ban on-campus military recuiting (aka the Solomon Amendment).
As I understand the ruling, the gist of the opinion is that forcing law schools to allow military recruiters on campus interferes with the schools’ First Amendment right to express their opposition to current military hiring practices. Many law schools view those hiring practices as discriminatory because the military does does not allow openly gay individuals to serve. Judge Ambro analogized the case to Boy Scouts of America v. Dale, where the Supreme Court held that the Boy Scouts could not be barred from excluding an openly gay scoutmaster under the First Amendment if the Boy Scouts wanted to define themselves as an organization opposed to homosexuality. Ambro found the similarities between the Boy Scout’s right to define itself by excluding a gay scoutmaster and the law schools’ right to define themselves by excluding military recruiting to be “compelling.” The basic argument is found on page 26 of the slip opininion:
Just as the Boy Scouts believed that “homosexual
conduct is inconsistent with the Scout Oath,” id. at 652, the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that “homosexuals do not provide a role model consistent with the expectations of Scouting families,” id., the law schools maintain that military recruiters engaging in exclusionary hiring “do not provide a role model consistent with the expectations of,” id., their students and the legal community. Just as the Boy Scouts endeavored to “inculcate [youth] with the Boy Scouts’ values—both expressively and by example,” id. at 649-50, the law schools endeavor to “inculcate” their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies. FAIR Br. at 22-25. And just as “Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,” Dale, 530 U.S. at 653, the presence of military recruiters “would, at the very least, force the law schools to send a message,” both to students and the legal community, that the law schools “accept” employment discrimination “as a legitimate form of behavior.” Id.
I am generally reluctant to wade into areas of law that I don’t study closely — especially when they touch on hot-button isssues like gay rights — so I will make an amateurish observation and then let First Amendment experts explain why I am wrong. Here’s the amateurish observation: Doesn’t this comparison overlook the difference between (a) government regulation forcing you to express a set of views, and (b) government regulation forcing you to do something you really don’t want to do?
As I understand the positions of the law schools in this case, their expressive arguments are based on the fact that they really don’t want to allow military recruiters on campus. This is a First Amendment problem, the thinking goes, because law schools as institutions are defined by what they do. Allowing military recruiters would be inconsistent with their commitments; would not provide models that they approve of; would not inculcate their chosen values; and would send the message that they acccept the law as “legitimate.” In effect, forcing law schools to do what they don’t want to do denies them a right to be the organizations they want to be, violating the First Amendment.
Assuming I haven’t grievously misstated the law schools’ argument — a big assumption, perhaps — isn’t this argument rather problematic? People and groups are free to define themselves based on any set of views. But the right to have a set of views does not imply a right to disobey laws that you find abhorrent. For example, if I decide to devote my life to spreading the message of opposition to the federal income tax, I still have to pay my federal income taxes. I may feel that paying taxes is inconsistent with the message I want to spread; that it would not provide people with a good role model; that would it would not inculcate my chosen values; and that it would send a message that the income tax is “legitimate.” But I still have to pay my taxes. Why is this case different?
My apologies in advance if I am misrepresenting the arguments of the parties or the Court, or if I am missing something obvious. Also, my thanks in advance for any thoughtful responses. (BTW, I realize that the argument above is one of at least two alternative arguments in support of the panel’s ruling; I have focused on it because it seems to be the primary argument accepted by the panel.)
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