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.
Questions About the Solomon Amendment Ruling:
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.)
Solomon Amendment Case:
I'm pleased with the result of the Solomon Amendment case, allowing private universities to discriminate against military recruites. As those of you who are familiar with You Can't Say That! would guess, I think that the First Amendment right of expressive association protects private universities' ability to defy federal antidiscrimination laws when those laws interfere with the universities' ability to define the message they project to the world. However, the Third Circuit's opinion overlooks some mighty important issues, leaving the case susceptible to reversal.
First, the plaintiffs were not the law schools that objected to the Solomon Amendment, but individual law professors and membership organizations not affiliated with the law schools. It's as if the Boy Scouts of America v. Dale case had not been brought alumni associations, and organizations of Christian scouts not affiliated with the BSA. [Whoops, my mistake, I was confusing this case with another Solomon Amendment case. One of the organizations involved in this case is actually a consortium of law schools.] (This also seems like a good time to remind readers of the inconsistency of those law professors who strongly opposed giving the BSA an expressive association right to exclude gay scoutmasters, but became born-again believers in freedom of association when the Solomon Amendment case arose.)
Second, neither the majority nor the dissent bothers to mention the Supreme Court's decision in the Grove City College case. This case suggests that universities have a very limited, at best, First Amendment right to defy federal law when the law in question is enforced via the spending power rather than directly through regulatory power. The case is especially relevant because it was a Title IX case, and the Solomon Amendment was modeled after Title IX (for a discussion, click here). I happen to think that Grove City was wrongly decided on this issue, and that it's distinguishable, for reasons I explain in a slightly different context here. But the Third Circuit didn't bother to distinguish it.
The Solomon Amendment and Catholic Legal Theory:
An interesting debate on the latter subject is ongoing at the Mirror of Justice blog.
Third Circuit mass recusal:
Howard Bashman (How Appealing) notes, apropos a Solomon Amendment case, that "In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case. A notice enclosed with the copy of yesterday's Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit's active judges is recused from the case." Therefore, while I predicted that the case would go to the U.S. Supreme Court if the Third Circuit doesn't rehear it en banc, it sounds like I need to get rid of that "if" clause. Howard agrees:
Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday's Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.
What's more, because the case holds unconstitutional the application of a federal statute, the U.S. Supreme Court is especially likely to review it. Just as the Court tends to want to review "splits," which is to say solid differences of opinion, among lower courts, so it tends to want to review splits between the legislative and executive branches on the one hand and the lower courts on the other.
By the way, if anyone has any well-informed thoughts about why so many Third Circuit judges recused themselves, please let me know.
UPDATE: Several people suggested that some of the judges may be on the Boards of Trustees (or, in some schools, Boards of Visitors) of some of the private schools involved in the litigation, or might possibly teach at those schools at adjunct professors. But at this point this is just speculation; I've seen no concrete evidence. I suppose it's also possible that some might have children at those schools; I take it that's why Justice Thomas recused himself from the Virginia Military Institute case -- I doubt that recusal would be strictly required in such a situation, but maybe some judges are erring on the side of caution there.