The U.S. Court of Appeals for the Third Circuit has just issued a preliminary injunction prohibiting the government from enforcing the Solomon Amendment; the injunction lets law schools deny access to military recruiters — on the grounds that the miitary discriminates based on sexual orientation in violation of the law schools’ policies — without fear of the loss of federal funds. The court’s reasoning was generally that (1) the Amendment interfered with the law schools’ right of expressive association, by forcing them to associate with a group whose very presence undermined the schools’ expresion against sexual orientation discrimination, and (2) the Amendment mandated “compelled speech” by the law schools, by forcing them to use their property to carry speech (discriminatory recruiting) which they didn’t want to carry.
I think the court was likely mistaken, for complicated reasons that I’m too swamped to go into right now. (I have an article draft due December 10, which is the main reason I’ve blogged a lot less than I usually do.) But I think this is an important case, and I predict that, if the Third Circuit doesn’t hear it en banc (I have no prediction on whether it will or it won’t, since I don’t know how the Third Circuit operates), the U.S. government will ask the Supreme Court to hear the case, and the U.S. Supreme Court will agree to hear it.
UPDATE: It is a great honor to be compared with Pierre Fermat, even if the comparison focuses on our differences rather than our regrettably very small similarities.
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