Law schools across the United States got slapped down by the Supreme Court last Monday.
In a unanimous opinion, the Court ruled that the Solomon Amendment, which bars federal funding to any university refusing to allow military recruitment on campus, was fully constitutional. The law schools contended that the Solomon Amendment violated their First Amendment rights by forcing them to accept military recruitment; the law schools disapprove of military recruitment because they despise the "don't ask, don't tell" policy.
The Supreme Court rejected that contention. "In this case, [the law schools and their allies have] attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect," wrote Chief Justice Roberts for the Court.
The Court didn't rule on the simplest argument in favor of the Solomon Amendment: that attaching strings to federal funding (which is palatable) is not the same as forcing people to say what you want them to say (which is not).
The law schools are free to refuse federal money if they wish to bar military recruitment. And they are free to criticize the military's "don't ask, don't tell" policy and keep federal funding as long as they allow military recruitment. This has, in fact, been the preferred tactic of Harvard Law School since the passage of the Solomon Amendment.
Each year, the military recruits, and each year, Dean Elena Kagan sends out an e-mail to the Harvard Law community denouncing "don't ask, don't tell" as "deeply wrong -- both unwise and unjust."
Instead of stating that the Solomon Amendment was constitutional because there is a difference between attaching strings and forcing speech, the Supreme Court waded through a dense underbrush of First Amendment doctrine to reach its conclusion.
Bear with me as we explore that underbrush along with our guiding lights, the members of the illustrious Court. There is a point to all this -- I promise.
The Solomon Amendment was acceptable, the Court ruled, because forcing a law school to send out recruitment e-mails on behalf of the military (as it would for any other "nondiscriminatory" employer) is not like requiring students to say the pledge of allegiance (ruled unconstitutional in West Virginia Bd. of Ed. v. Barnette, 1943); nor is it like requiring drivers in New Hampshire to display the slogan "Live Free or Die" on their license plates (ruled unconstitutional in Wooley v. Maynard, 1977).
Compelling law schools to host military recruitment on penalty of losing federal funding is acceptable, the Court ruled, because it is not like forcing conservative parade organizers to admit a homosexual activist group to the parade (ruled unconstitutional in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 1995); nor is it like a statute requiring a newspaper to print a politician's reply to criticism (ruled unconstitutional in Miami Herald Publishing Co. v. Tornillo, 1974).
The Solomon Amendment is acceptable, the Court ruled, because pushing law schools to admit military recruiters does not force law schools to engage in "expressive conduct." The Solomon Amendment is not like anti-flag-burning statutes (ruled unconstitutional in Texas v. Johnson, 1989). Nor does Solomon violate freedom of expressive conduct -- allowing military recruitment is not like forcing the Boy Scouts to admit gay scoutmasters (ruled unconstitutional in Boy Scouts of America v. Dale, 2000).
Why do I bother reciting this litany of incomprehensible gibberish and hairsbreadth distinctions? Because this is what constitutional law has become. Yes, the Court decided rightly in this case. But they decided rightly for the wrong reasons. It would be blind at best and unprincipled at worst to accept yet another Court decision twisting and turning the words of the Framers simply because the outcome is correct. This is what happens if you hand over a relatively simple document to a bunch of Ivy League-educated lawyers: It becomes gobbledygook.
The First Amendment is not very mysterious.
It is all of 45 words, and the portion that is relevant here -- "Congress shall make no law … abridging the freedom of speech" -- is 10 words long.
But apparently, this tiny phrase, "freedom of speech," countenances thousands of pages of legal opinion distinguishing Boy Scouts from Junior Chambers of Commerce and flag burning from cross burning. Meanwhile, fellow lawyers in Congress sit by, patiently awaiting edicts from on high, so that they can rewrite their legislation accordingly. It now seems that John Adams was deadly serious when he remarked, "I have come to the conclusion that one useless man is a disgrace, two men are called a Law Firm, and three or more are called a Congress." Nine are called a Supreme Court.