Whether this argument is persuasive depends largely on how we evaluate two kind of claims, and in particular how much we defer to two claims made by organizations alleging free association violations. The first issue is deference to an organizations's alleged First Amendment message; the second is deference to an organization's claims that complying with a particular law will interfere with that First Amendment message. The first kind of deference is relatively uncontroversial, I suspect. Under Dale, courts cannot too easily second-guess an organization's claim that it stands for a particular message. Courts cannot be too eager to unmask the Boy Scouts as an organization that isn't really committed to exluding gay scoutmasters; similarly, they can't easily dismiss the law schools' claims that they are committed to non-discrimination. Courts have to take these claims at face value so long as they have some plausible support.
The trickier and more interesting question is how much deference a court must give to an organization's claim that complying with the law would interfere with its message. Defenders of the Third Circuit's decision can point to this line from Dale:
As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression.The question is, how much deference? Here is how the Supreme Court analyzed the issue in Dale:
[The fact that we must give deference] is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.I read this passage in Dale to say that a Court must give some deference to an association's view of what would impair its expression, but that the deference cannot be total: ultimately, the question of whether the association's view receives constitutional backing is something for the court to decide, not the organization.
How does this apply to the Solomon Amendment case? My own sense is that forcing a law school to allow military recruiters on campus one or two days a year is quite different from forcing a group that sees homosexuality as bad to keep a gay rights activist as a scoutmaster. Why the difference? In the Boy Scouts case, it seems plausible that membership was the message. Most groups are run by their members; the members determine the group's message. If a group can't control its members, then it may be unable to control its message. Imagine if people opposed to gay rights decided to join gay rights organizations en masse and coopt them from the inside, electing their own as leaders. If this were to happen, the inability to exclude those hostile to gay rights would make it difficult for a pro-gay rights organization to exist. Granted, I'm not sure something like this was a realistic fear in Dale; it seems quite unlikely that the Boy Scouts were about to be overrun by gay rights activists. Still, regulating membership does seem to have a pretty direct connection to regulating expression. If a court wants to defer to a group's sense of when it needs to exclude to maintain its message, Dale seems at least a reasonable (although not obviously correct) case in which to do it.
There doesn't seem to be a similar connection in the Solomon Amendment case. Allowing military recruiters on campus for a few days a year doesn't seem to make it any harder for the law schools to express their opposition to the military's hiring practices. If anything, the presence of military organizations on campus a few days a year for recruiting creates an opportunity for law schools to make their hostility to the military policies crystal clear. The visit would seem to create a catalyst for expression, not put the brakes on it.
As best I can tell, the law schools' argument for why it couldn't express its message if it allowed military recruiters on campus was as follows:
[J]ust 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."If I'm not mistaken, there is a subtle switch going on here. In Dale, "accepting" something as "legitimate" referred to expressing the viewpoint that it was good. It related directly to the Boy Scouts' speech, and its expression of views relating to homosexuality. As used in the Solomon Amendment case, however, "accepting" something as "legitimate" seems to mean only "recognizing that it is existing law." Or perhaps it means "recognizing that it is a legally binding rule not worth suffering the consequences that would follow from violating it." Either way, the acceptance does not seem to relate to speech. Compliance with a law does not imply personal approval of it. Being forced to allow military recruiters on campus won't lead anyone to think that law schools actually approve of military hiring practices. Given this, accepting the law school's claim at face value would seem to allow the law schools to "erect a shield against [complying with the law] simply by asserting that . . . [compliance] would impair its message," which Dale prohibits.
In conclusion, the Solomon Amendment case does seem trickier than when I first looked into it. To the extent it's relevant — it's not, but some will think it is — I still disagree with the military's ban on service for gays and lesbians. At the same time, I continue to be rather puzzled by the Third Circuit's ruling; it seems to reflect a misapplication of Dale. Finally, thanks to VC readers Joe Landau and others for writing in with comments on my initial post.
Related Posts (on one page):
- A Rare Accurate Supreme Court Prediction by Yours Truly:
- Supreme Court to Review Solomon Amendment Case:
- Michael Dorf on the Solomon Amendment Case:
- Does Dale Forbid the Solomon Amendment?