WASHINGTON - The clash at the Supreme Court Tuesday morning wasn’t one that will determine American victory or defeat in Iraq, but it will result in a victory for one side or the other in the culture war the court entered nine years ago with its initial gay rights ruling.
In his first skirmish in that war, Chief Justice John Roberts signaled he’s on the Bush administration’s side in defending the federal law that requires universities to provide military recruiters with the same access to their campuses as they offer other recruiters.
A group of several universities — who abhor the military ban on gays openly serving in uniform — stand to lose hundreds of millions of dollars in taxpayer subsidies if the court upholds the law.
Yale University, for example, would lose $300 million in taxpayer subsidies.
Attorney Joshua Rosenkranz, representing the schools, urged the justices to strike down the 1994 Solomon Amendment, which says that colleges and universities that accept federal funding must provide access for military recruiters on their campuses. The schools, he said, had made “a morally-based and conscience-driven decision” to curb military recruiters’ access to campus.
Even though the controversy began at law schools it would effect funding for entire universities. “The government cuts off almost every penny of federal money to the law school and to any department within the university from Astrophysics to Zoology," Rosenkranz said in his brief.
Congress squelching speech?
Rosenkranz told the justices that Congress wanted “to squelch even the most symbolic element of the law schools’ resistance” to the Pentagon’s policy on gays.
But Roberts had no patience with that argument. The Solomon amendment “doesn’t insist that you do anything,” Roberts crisply told Rosenkranz. “It says that if you want our money, you have to let our recruiters on campus.”
“This is conduct — denying access to the military recruiters,” Roberts told Rosenkranz, it is not an exercise of free speech and therefore, Roberts implied, it’s not protected by the First Amendment.
Roberts asked Rosenkranz “what about South Dakota against Dole?” He was referring to the 1987 Supreme Court ruling which allowed federal highway funds to be withheld from states that did not raise their legal drinking age to 21. The court held that the federal government can impose conditions when it hands out money.
Rosenkranz answered that the First Amendment was “a superseding constitutional right.”
Rosenkranz said that by hosting military recruiters, universities were being forced to spread a message of anti-gay discrimination.
And when Rosenkranz complained that their own students didn’t believe the law schools when they proclaim their opposition to discrimination against gays, Roberts drew a laugh from the crowd in the courtroom by replying, “the reason they (the students) don’t believe you is that you’re willing to take the money,” the millions in federal funds.
The price of conscience
Roberts implied that if the law schools truly wanted to be conscientious, they would be willing to give up their federal funding to show their commitment to their anti-discrimination beliefs.
Justice Anthony Kennedy also seemed skeptical of Rosenkranz’s argument, which he said “would allow schools to exclude anybody in (military) uniform from the (school) cafeteria,” as long as the schools claimed they were doing so as an exercise of their First Amendment right to speak their conscience.
But apart from Justice Antonin Scalia, it was Roberts who gave Rosenkranz the roughest treatment.
The law schools argue that people might mistakenly think they are endorsing the Pentagon policy on gays. Roberts swatted away this argument, saying, “Nobody thinks that the law school is speaking through those employers who come on to its campus for recruitment…. Nobody thinks the law school believes everything the employer is doing or saying.”
Solicitor General Paul Clement warned that the law schools’ attempt to invoke free speech rights to overturn the Solomon Amendment “would extend to any basis for criticizing the military — whether it was not liking the war in Iraq or the war in Afghanistan or the discriminatory hiring policy” of not permitting gays to serve openly in uniform.
Sympathy from Souter
The one justice who seemed most sympathetic to the universities was David Souter. He, like Rosenkranz, portrayed the issue as protection of free speech: the universities’ right to be free from cooperating with an anti-gay Pentagon. “In effect, you are forcing them to underwrite your speech,” Souter told Clement. “You are forcing them to change their own message, you are forcing them into hypocrisy.”
As she often does, Justice Sandra Day O’Connor sought a reasonable middle ground where the two sides might compromise: Does the Solomon Amendment allow the law schools to “distance themselves from the military’s views? Can there be signs up at every recruitment office saying ‘our law school doesn’t agree with any discrimination against gays?’”
Yes the schools could do that, Clement said.
Along the same lines, Justice Ruth Bader Ginsburg asked, “What can the law faculty do to disassociate itself... to say that we don’t tolerate discrimination of any kind’?”
Justice John Paul Stevens asked whether Yale’s policy of having military recruiters use the undergraduate campus for its recruiting of Yale law students was good enough to square with the Solomon Amendment.
“Sort of ‘separate but equal’?” wise-cracked Scalia, invoking the court’s infamous 1896 Plessy v. Ferguson decision that allowed racial segregation.
Schools organizing protests
Clement suggested that even under the Solomon Amendment the law schools remain free to organize student protests making clear they objected to the the military ban on open gays.
That idea startled Kennedy, who asked incredulously, “They could organize a student protest at the hiring interview room so that everybody jeers when the applicant comes in the door?”
Once against Scalia was quick to supply the comic relief, asking Clement, “You’re not going to be a military recruiter, are you?”