GUEST OPINION: Solomon fight reveals free-association duplicity

BY DAVID BERNSTEIN

ONE OF THE LATEST CAUSE celebres at law schools throughout the United States is opposition to the Solomon Amendment. That federal law requires all academic units of federally-funded universities to treat military recruiters exactly the same as they treat other recruiters, even when the military’s “Don’t Ask, Don’t Tell” policy conflicts with university policy protecting homosexuals from discrimination by on-campus recruiters. The anti-Solomon Amendment forces are right to object to government interference with law schools’ internal policies, but the activists are also often inconsistent in their support of private organizations’ autonomy.

Consider the lawsuit filed by Yale Law School professors arguing that the Solomon Amendment inhibits their First Amendment right of “expressive association” – their right to associate for the expressive purpose of promoting equality for gays. The Yale professors argue that the Amendment violates this by penalizing the entire university to the tune of $300 million in annual federal funds if the law school faculty continues to try to promote its pro-gay rights values by prohibiting or discouraging military recruitment on campus.

The lawsuit will inevitably rely on the Supreme Court’s 2000 case of Boy Scouts of America v. Dale, in which the Court held that the Scouts has an expressive association right to exclude openly-gay scoutmasters. The presence of such individuals, the Court ruled, would interfere with the Scouts’ ability to promote the organization’s belief in traditional sexual morality.

One would think that the professors suing the government over the Solomon Amendment would be universally supportive of Dale. After all, if anything, Dale involved a stronger restriction on expressive association than the Yale case does – the Scouts were being forced to admit gays, while Yale can avoid being subject to the Solomon Amendment by declining federal funds.

In fact, however, several of the signatories to the Yale lawsuit are strong opponents of Dale. Professor Kenji Yoshino, for example, helped write Dale’s brief arguing that the Scouts should be required to admit homosexuals.

Professor Jed Rubenfeld, meanwhile, has argued vociferously against Dale in law review articles and public addresses. In a speech he gave to the American Constitution Society in August, Rubenfeld argued that the “freedom of expressive association holding in Boy Scouts opens up the possibility of a profound, thorough going attack on the nation’s anti-discrimination laws.” Clearly this displeases him, as he added, “Every anti-discrimination law impedes, burdens the freedom of association, association being a slogan of the people in favor of Jim Crow.” Thus Rubenfeld implied that being in favor the right of expressive association against antidiscrimination laws implies support for Jim Crow, or at least similar moral obtuseness. So why did he join an expressive lawsuit opposing a ban on discrimination against military recruiters?

Or consider the views of Professor Owen Fiss, another lawsuit signatory. Fiss is not only known for his strong support for antidiscrimination laws, he is a leading academic advocate of weakening the First Amendment to combat “discriminatory” speech, such as hate speech. Yet in the Solomon Amendment context, Fiss has suddenly become a strong supporter of the First Amendment, including an expansive right of expressive association. The Solomon Amendment, he stated, “isn’t free association; it’s forced association, and it’s wrong.”

I would wager that very few of the forty-two Yale professors who joined the lawsuit against the Defense Department support the right of the Boy Scouts to exclude gays. For that matter, as Professor Richard Epstein of the University of Chicago Law School points out, few law school opponents of the Solomon Amendment would actively oppose the passage of a general antidiscrimination law that made it unlawful for schools to offer space for firms that followed the military’s policies regarding gays. The inconsistent policy of many liberal and gay rights activists “is autonomy on defense; and regulation on offense.”

I believe in pluralism and in the autonomy of private associations, including law schools, to promote their own expressive values free from coercive government pressure, and I’m no fan of the Solomon Amendment. I therefore hope that the Yale professors win their lawsuit. But I would like to see their concern for the right of expressive association extend further, to organizations such as the Boy Scouts that have values different from theirs.

David E. Bernstein (Yale Law ’91), professor of law at George Mason University, is the author of the new book, You Can’t Say That, The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato Institute).

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