Law Schools May Bar the Military from Campus

Under the "Solomon Amendment" any college or university that bars military recruiters risks losing federal funding.  In response to a lawsuit brought by a number of law professors and law students, the Third Circuit Court of Appeals says the amendment is unconstitutional, on the grounds that it interferes with the plaintiffs' free speech rights.  The Court "reasoned" that this was just like the Supreme Court's decision allowing the Boy Scouts to exclude homosexuals from being scoutmasters:

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."

This is absolutely terrible reasoning.   This case wasn't about freedom, as no one told the law professors they couldn't continue to vigorously criticize the military's policy toward gays.   The law schools were merely told that they couldn't bar military recruiters without losing their federal funding.

On the other hand, the Boy Scouts--a private and religious organization--wasn't claiming that it had the right to control its membership and at the same time obtain public funds.  And, in fact, as Nat Hentoff points out, the Boy Scouts have lost substantial public funding and support due to its stand.

I also don't see this as a free speech issue.  As Professor Kerr points out on Volokh, a person may well think that taxes are unconstitutional, but even while he speaks out against taxes, he still has to pay them.  Barring military recruiters from campus isn't "speech", it is a specific action that harms a legitimate and important government function.

Finally, as Professor Bernstein points (on Volokh and elsewhere), many of the law professors who supported this lawsuit are cast iron hypocrites, who would happily restrict the Boy Scouts First Amendment rights to free association, while at the same time insisting on a similar right for themselves:

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."

The ACLU takes hypocrisy to another level, filing a brief in support of the free speech "rights" of the plaintiffs in this case, while doing its best to punish the Boy Scouts for exercising the same rights.  The ACLU is arguing that restricting their access to public funds violates the free speech rights of law professors, while at the same time it is trying to restrict the access of the Boy Scouts to public funds  to punish the Scouts for exercising their own free speech rights.

All of this makes it pretty clear that the liberals are just trying to beat up people people (the military and the Boy Scouts) who think differently than they do about homosexuality. 

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