December 01, 2004

Solomon Again

by PG

The Third Circuit's decision to overturn Congressional legislation barring federal funding to schools that refuse military recruiters (past post on this topic) is being criticized on multiple grounds by several bloggers. Some of these are valid; others are more questionable.

Tony Rickey claims that the demands of ABA accreditation block students from attending schools that discriminate on the basis of sexual orientation, or that permit on-campus recruiting employers to do so. "Unlike the Boy Scouts, you can't just go out and set up your own law school by different standards, at least if you want your students to have easy access to the profession." While a quick read of Standard 210 gives that impression, one also should consider the ABA's actual application of it:

This Standard permits religious policies as to admission, retention, and employment only to the extent that they are protected by the United States Constitution. It is administered as if the First Amendment of the United States Constitution governs its application. [...] Interpretation 210-3: As long as a school complies with the requirements of Standard 210(e), the prohibition concerning sexual orientation does not require a religiously affiliated school to act inconsistently with the essential elements of its religious values and beliefs. [...] Interpretation 210-4: Standard 210(f) applies to all employers, including government agencies, to whom a school furnishes assistance and facilities for interviewing and other placement services. However, this Standard does not require a law school to implement its terms by excluding any employer unless that employer discriminates unlawfully.
So Regent School of Law, the non-discrimination policy of which does not include sexual orientation, can prohibit "homosexual conduct" (as distinct from regular "premarital sex") without fear of losing its ABA accreditation. Students who support a gay-free learning environment and/or military can attend Regent or similar institutions.

Ann Althouse goes at distinguishing law schools from the Boy Scouts at a different angle:

The law schools argue that they express themselves through modeling nondiscriminatory values. Having to accept a discriminatory recruiter on an equal basis with other recruiters, they say, interferes with their expression. That seems to me to go beyond Dale. The law school isn't choosing who will speak for them, while the Boy Scouts were choosing who will hold their leadership positions. We don't perceive the recruiters as speaking for the law school.
Tony amplifies on this idea in his post, ridiculing the notion that Columbia doesn't express great disapproval of the military's discrimination. But then one could argue that the Boy Scouts are free to express great disapproval of homosexuality while still being required not to discriminate against gays.

Althouse's attempt to put scoutmasters in a more "speaking" role than recruiters is good, but flawed by the fact that the BSA specifically prohibits scoutmasters from talking about sexuality in any form. Dale wasn't arguing for the right to tell boys that he was a homosexual and that was OK; he was arguing for the right not to be discriminated against. The same associative freedom is at work: the Boy Scouts felt that having a gay scoutmaster, even one who never talked about homosexuality, undercut their message; the law schools feel that having military recruiters, even ones that receive nothing more from the schools than the space and freedom to recruit, undercuts their message.

Power Line has a valuable pointer to Georgetown Law professor Mark Tushnet's arguments against the suit. "The litigation would have to take on two difficult issues, the scope of Congress's spending power (an unconstitutional conditions point), and the degree to which the courts should defer to Congress's judgments in matters involving the military forces."

Regarding the "unconstitutional conditions point," consider this dicta from Rust v. Sullivan (case found through this article):

this Court has recognized that the existence of a Government "subsidy," in the form of Government-owned property, does not justify the restriction of speech in areas that have "been traditionally open to the public for expressive activity," United States v. Kokinda, 497 U.S. 720, 726 (1990); Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.), or have been "expressly dedicated to speech activity." Kokinda, supra, at 726; Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U.S. 589, 603 , 605-606 (1967).
I doubt the Court is likely to consider law schools' disapproval of anti-gay discrimination to be as great a threat as Communism, which was the problematic view held by Keyishan.

In contrast, the judicial deferral to Congressional judgment in military matters is of long standing, even overriding the heightened scrutiny of gender discrimination. Of all the liberal lions, Brennan, in his capacity as a Circuit Justice for the Third Circuit, stayed execution of a lower court's order to make Selective Service registration apply to both men and women, on the ground that the nation faced too pressing an emergency (the Soviet invasion of Afghanistan occasioned Carter's reinstitution of the draft registry) to be slowed by the bureaucratic upheavals of making the draft gender-neutral. A 6-3 Supreme Court upheld Brennan's decision, though he himself joined Justices White's and Marshall's dissents.

Still, even Rehnquist's majority opinion in Rostker v. Goldberg admits, "None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4 Wall. 2 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919), but the tests and limitations to be applied may differ because of the military context. We, of course, do not abdicate our ultimate responsibility to decide the constitutional question..."

Part I(C) of Marshall's dissent provides rhetorical ammunition for those questioning the declaration of military necessity.

One such "safeguar[d] [of] essential liberties" is the Fifth Amendment's guarantee of equal protection of the laws. When, as here, a federal law that classifies on the basis of gender is challenged as violating this constitutional guarantee, it is ultimately for this Court, not Congress, to decide whether there exists the constitutionally required "close and substantial relationship" between the discriminatory means employed and the asserted governmental objective. [...] In my judgment, there simply is no basis for concluding in this case that excluding women from registration is substantially related to the achievement of a concededly important governmental interest in maintaining an effective defense. The Court reaches a contrary conclusion only by using an "[a]nnounced degre[e] of 'deference' to legislative judgmen[t]" as a "facile abstractio[n] ... to justify a result."
Surely the First Amendment is also a safeguard of essential liberties, and a federal law that attempts to override it also should require a "close and substantial relationship" between Congress's anti-free speech means (cutting off funding to schools that refuse recruiters) and the asserted governmental objective of maintaining a prepared military.

The Third Circuit majority opinion defines the objective even more narrowly as "recruiting talented lawyers," and declares, "The availability of alternative, less speech-restrictive means of effective recruitment is sufficient to render the Solomon Amendment unconstitutional under strict scrutiny analysis. [...] The Government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal."

The dissent invokes the heroic image of our men and women in uniform serving in the war on terror, but practically speaking the people recruited from law schools are likely to have the thankless job of prosecuting or defending soldiers who have been charged with breaches in conduct. Law students who join the military probably are going to be dealing with Abu Ghraib fallout, not making Afghanistan safe for democracy. As far as I know, the military is not suffering a shortage of legal expertise in its investigations and prosecutions, so Brennan's concern of pressing necessity does not apply.

As a matter of probabilities, I suspect that the Third Circuit ruling will not stand. But I don't think it's as indefensible as some of the criticisms of it would suggest.

December 1, 2004 03:47 AM | TrackBack

I was intrigued by Orin Kerr's questions on the applicability of the First Amendment here. Key quote:

"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?"

Posted by: Tom T. at December 1, 2004 09:25 AM

Income taxes are explicitly constitutional?

Posted by: Steve Brady at December 1, 2004 01:10 PM

Also, I have little sympathy for military needs when they fire Arabic translators for being gay.

Posted by: Steve Brady at December 1, 2004 01:12 PM

The difference lies in the consequences: if you don't pay your taxes, you get punished because of your message (that income tax is bad, or whatever); if you don't allow military recruiters, you are denied a benefit (federal funding) to which you would otherwise be entitled because of your message (that discrimination against homosexuals is bad). In the latter case, Supreme Court precedent is clear that you can't deny a benefit because of one's freedom of speech. See Perry v. Sindermann, 408 U.S. 593, 597 (1972).

Posted by: Scott at December 1, 2004 02:21 PM

Steve, I think you'd be hard-pressed to find any authority supporting any arguments against the constitutionality of the income tax. Those arguments have been so discredited by legions of tax protestors that some courts have preemptively deemed them frivolous, such that litigants who raise them may be subject to sanctions.

Scott, I'm not sure that your distinction resolves the issue. Consider Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the case heavily relied upon by the Third Circuit. In that case, New Jersey wasn't seeking to deny a benefit to the Boy Scouts, it was seeking to impose a penalty for their violation of antidiscrimination law, and it was barred from doing so.

Perhaps a better question is, how does the Boy Scout case differ from Orin Kerr's hypothetical? Or, which laws can be overridden by the doctrine of expressive association and which cannot?

Posted by: Tom T. at December 1, 2004 07:57 PM

Well, I would hope courts would think such cases frivolous, since the 16th Amendment explicitly says that Congress can raise income taxes.

The point I was making was that no one can argue the constitutionality of income taxes, which already distinguishes the case from Kerr's hypo. The Solomon act does not criminalize barring recruiters. It gives schools the choice. The question is whether even giving that choice is constitutionally permissible.

For me, the comparable hypothetical would be if Congress passed a statute exempting The New York Times from being taxed if it agreed to stop criticizing the President.

Posted by: Steve Brady at December 1, 2004 08:36 PM

Oh, I see what you mean. Sorry; I misunderstood your original comment.

I think the basic fact that Congress has the constitutional power to impose income taxes doesn't end the inquiry, since those income taxes are still constrained by other parts of the Constitution. Taxing churches might violate the First Amendment, for instance. Similarly, New Jersey clearly has the authority to enact laws banning discrimination against gays, but it's still constrained by the First Amendment from applying them against the Boy Scouts.

Your NY Times hypothetical is very interesting, though. On its face, such a subsidy sounds unconstitutional. Still, that analogy may go too far; the law schools aren't being required to stop criticizing the military's policy against gays.

It strikes me that a closer analogy might be if Congress enacted a subsidy to newspapers that agreed to run advertisements supporting the military. Would that be constitutionally flawed?

Posted by: Tom T. at December 1, 2004 10:52 PM


Perhaps I should have been more clear. First, while the ABA does have a religious carve-out to 210, it could easily be rid of it at any time. Secondly, the carve-out is explicitly religious. The ABA policy accepts no other grounds. Hence, a school which wished to exclude gays because--for instance--it modelled its policies for admission off those of the Army could not be accredited.

Posted by: A. Rickey at December 12, 2004 02:45 AM

A. Rickey,

If the ABA rid itself of the religious carve-out to 210, probably schools losing accreditation would sue the ABA on the argument that the ABA is a quasi-governmental body. (FYI, on the off-chance you haven't read it exhaustively already, you might be interested in the 1995 DOJ antitrust suit against the ABA.) Presumably this is the reason that the ABA has a religious carve-out to begin with, though I'll concede that once the public policy trend swings in the opposite direction, and even Georgetown crumbles, the ABA may remove the exemption.
In light of the ABA's approval of the U.S. Army Judge Advocate General's School, which likely follows the Army's discrimination policy, I don't know that you can say that the exemption is strictly religious. Also, the ABA's standard with regard to employers is a "should" and not a "shall/must."

But I can see the reason for keeping carve-outs religious; otherwise a law school could model its policies for admission on Augusta and discriminate against women. Which would be Bad. Don't you think there's a greater overlap between law school grads and golf club members than between those grads and Army employees?

Incidentally, Hamline has an interesting way of walking the line:

Under federal law, Hamline University School of Law is required to permit the JAGC equal access to all career services available to other employers or forfeit federal funding for University programs. United States military employers are in violation of Hamline's nondiscrimination policy as well as the policies of the American Bar Association and the Association of American Law Schools. Those using Hamline's career services resources are hereby notified of JAGC noncompliance with these policies.

Posted by: PG at December 13, 2004 11:27 PM
Post a comment

Remember personal info?

Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Craig Konnoth (e-mail) #
About Us
Senior Status