(The Return of) Ignatz, by Sam Heldman

Tuesday, February 01, 2005

another defeat for the Solomon Amendment
Yesterday, another federal court declared the federal law known as the "Solomon Amendment" unconstitutional.

The Solomon Amendment, you may remember, is the law that withholds federal funding from a university if any part of that university refuses to assist military recruitment. As a practical matter, what this mainly has to do with is most law schools' desire not to facilitate military recruiting, because the military discriminates on the basis of sexual orientation. The law has forced law schools to back off that stance, because even when they are willing to forego federal funding themselves, their universities won't allow them to sacrifice all federal funding for every part of the university in order to stand on principle.

Back in November, the U.S. Court of Appeals for the Third Circuit ruled against the government in another lawsuit challenging the law. (Pdf of decision here). I had written an amicus brief to the Third Circuit on behalf of a bunch of law school career services professionals who opposed the Solomon Amendment, and was pleased with the decision. I debated it a bit with Nathan Newman at the time on his site. (You can read my brief here (pdf) if you care to, and you will then imagine how especially pleased I was when certain things from that brief wound up in the Third Circuit's opinion.).

Various observers had pronounced that Supreme Court review of the Third Circuit decision was a near-certainty. I never bought it; for the law nerds among you, the reason is that the Third Circuit decision was merely the reversal of the denial of a preliminary injunction, and was not an appeal from a final judgment. In any event, yesterday's decision in the suit brought by Yale professors makes it all the more appropriate for the Supreme Court to stay out of this dispute for the time being. If the Government goes forward in the Third Circuit case and asks the Supreme Court for review, the Supreme Court ought to say to itself, "No, let's wait and see what the Second Circuit does, when the Government appeals the Yale case; if the lower courts all end up agreeing that the law is unconstitutional, then the issue might not be a good candidate for our review at all."

For the super-law-nerds among you, you will find it interesting to note that one Yale law prof, Jed Rubenfeld, apparently broke ranks with his fellow plaintiffs; he wanted to challenge the law only under a "compelled speech" theory and not under a "freedom of association" theory. (The "compelled speech" theory, in a nutshell, is "You know how the Supreme Court has held that mushroom growers can't be forced to subsidize government-sponsored mushroom ads if they don't want to? By the same token, a law school can't be forced to provide material support to the government's recruiting message." The "freedom of association" theory, in the same lame nutshell, is "You know how the Supreme Court has held that the Boy Scouts have an associational right to exclude gay people if they want? By the same token, law school communities have the right to exclude anti-gay discriminators if they want.") As a matter of my personal preference as to what constitutional law ought to be, I would probably agree, because of my qualms about the Boy Scouts case; but as a matter of what constitutional law is these days, both theories end up as winners. I will also note that I edited an article by Jed Rubenfeld back when he was still a lawyer and I was just a little law-student twerp.

And to those of you who say, "darn liberal activist federal judges! don't they know that this will horribly impair the military's ability to attract the best young lawyers?" -- please note that the court in the Yale case, like the Third Circuit before it, pointed out that the problem with this argument is that there is absolutely no evidence to support it. And that's the great thing about the practice of law: it's based (at least in theory) on evidence, rather than just spouting off as to what you think is probably true. That's how law differs from much blogging.

posted by sam 3:24 PM 0 comments


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