The Academy and the Solomon Amendment

Bad cases make bad law. I’m giving the last lecture tomorrow in my spring-term constitutional history class, and this theme has reappeared throughout the course. Muller, Schechter, and Bakke exemplify cases whose facts made the rendering of an elegant Supreme Court judgment difficult if not impossible. Today brings news of the latest such bad case, the challenge by a group of law schools and law faculty to the constitutionality of the Solomon amendment, which conditions federal assistance on colleges and universities granting equal access to military recruiters, even though the military’s treatment of gays violates the institutions’ anti-discrimination policies.

The military’s policy toward gays is morally dubious and pragmatically absurd—as we’ve most clearly seen in the discharges of gay linguists. Yet the position of the anti-military faculty critics is far from pristine. Both the anti-recruitment strategy and the anti-ROTC policy from which it intellectually derives have allowed faculty to express their views through initiatives that seem highly unlikely to change the military’s approach but at the same time directly harm some of their institution’s students.

Over the past decade, the Court has taken a three-pronged approach on gay rights. Most prominently in the Boy Scouts decision, it held that the 1st amendment gives private organizations the right to deny membership to gays. On the other hand, in the powerfully written Romer and Lawrence decisions, the Court struck down state laws that discriminated against gays. Finally, the justices have proven reluctant to intervene on matters relating to the military.

By focusing on the intersection of these three patterns, the Solomon amendment case threatens to disrupt the constitutional balance the Court has structured—and it’s hard to see an outcome that will favor gay rights. On the one hand, the Court could uphold the Solomon amendment, probably by a 6-3 margin with Justices O’Connor, Souter, and Kennedy joining the conservatives, thereby blunting the legal momentum gained from the Lawrence and Massachusetts Supreme Court’s gay marriage decisions. Less likely, a 5-4 Court (with Souter and Kennedy joining the liberals) could strike down the Solomon amendment, thereby all but certainly triggering an anti-gay backlash. Achieving gay marriage or decriminalizing sodomy might be worth facing the resulting backlash; inconveniencing military recruiters on college campuses is not.

So, in the end, there are likely only to be two groups of winners from this case. The first, as profiled in this morning’s New Republic by Nathaniel Frank, will be old-guard homophobes in the military. The second will be the professors who can rejoice that they didn’t compromise their principles as they move onto their next cause célèbre and express amazement as to why policymakers pay so little attention to people in the academy.