Tuesday, December 06, 2005

What's FAIR Is Fair... Or Is It?

After today's oral arguments before the Supreme Court, many are predicting that Rumsfeld v. FAIR will be overturned in favor of the Department of Defense. The case puts the question of whether the government can withhold funding from universities whose law schools refuse military recruiters equal access to on-campus job fairs. The law schools argue that this amounts to unconstitutional coercion, infringing on their First Amendment rights to expression and association, by forcing them to compromise their own stated anti-discrimination policies (employers are only allowed to recruit on campus if they sign a statement of non-discrimination including sexual orientation among other categories). The trial and appellate courts have so far agreed. The government argues essentially that "he who pays the piper calls the tunes", and that the universities are free not to compromise by choosing not to accept government funds. From the sound of the Justices' lines of questioning today, it seems most of them may agree with the government. Famous centrist casuist Justice O'Connor seemed content that the law school's First Amendment rights were protected so long as they could protest and even jeer the military recruiters.

Mindful of the direct consequences, many gay people and organizations have argued in favor of FAIR (the law school organization). Commentators (e.g., KipEsquire here) have noted the irony that the appellate decision upholding the law school position was based on the precedents of Boy Scouts of America v. Dale, in which the rights of free association of a private organization insulated the Boy Scouts against government intervention when they booted out a gay scoutmaster. A similar precedent involving gays being barred from a St. Patrick's Day parade was also cited. Yet both of these anti-gay cases were used to support the pro-gay position in this case. What this really shows is that trying to judge a case based on a preferred outcome rather than a principle is a double-edged sword. I haven't seen this analogy drawn elsewhere, but the other case that came to my mind was that of the 1998 San Francisco ordinance that prohibited the City of San Francisco from contracting with companies who did not offer domestic partner benefits. Gay advocates certainly cheered loudly when this ordinance was upheld in large part (with some exceptions) when it was tested in court. Yet the same principle that would enable the City of San Francisco to pull its purse strings to whip would-be city contractors into providing domestic partner benefits is the same principle being argued by the Department of Defense. If one is right, then so is the other. Others have observed that some of the federal civil rights statutes are similarly founded.

I would love to see our military's anti-gay discrimination finally and completely ended, and applaud the law schools who protest against it. And I am certainly queasy about the dangers of a government's "piper-paying powers" when we're approaching $2.5 trillion in annual federal spending. Notwithstanding that, I believe that a court case should be adjudicated on its merits and the principles, and not on a desired outcome. I'd love to see the Boy Scouts accept a gay scoutmaster, but I respect their right as a private organization to set their own policies, and I think Dale (as well as the Paddy's Day parade case) were rightly decided. (Note that also protects the right of Christopher Street West to refuse to allow Fred Phelps and his death-eaters to enter a float in the Gay Pride Parade.) And while I like the outcome of the appellate court in this case, I'm not sure I follow their reasoning. The Boy Scouts were a private organization facing court-ordered contravention of their policies, while the law schools are organizations (some private, some state) facing a hard choice of accepting funding tied to making an exception to their policies for the government. That doesn't seem sufficiently analogous to me. If I were a Supreme Court Justice, I don't think I'd be very receptive to FAIR's arguments either. Meanwhile, the law schools should follow up on Justice O'Connor's suggestion and vociferously protest the military recruiters when they let them on campus.

1 comment:

Jeff Hersh said...

The issue isn't free speech, it's the limitation of the power of the Congress.

I reluctantly agree with your First Amendment analysis. I believe a more compelling legal argument is that the federal gov't is improperly attempting to expand its jurisdiction by doing through coercion what it otherwise lacks the power to accomplish. The Congress lacks the power to compel universities to allow armed service recruitment on campuses. If Congress' power is to be expanded, it should be done so via a Constitutional Amendment, not by the usurpation of power by coercion.

We first saw this in the 70s when the federal gov't threatened to pull highway funds from any state that failed to impose a 55mph speed limit. It is a dangerous practice, akin to an unlawful tieing in antitrust law. (Of course, antitrust law is dead in this country.)

What if the Congress passed a law banning federal funds to colleges that have openly gay professors? Or if it threatened to withhold federal funds to force universities to hire more Republicans? What if it ordered the IRS to audit anyone who was in disfavor with the majority at a particular time?

I would like to ask the justices what limits the Congress to impose its will beyond its constitutionally granted powers if such coercive tieing is permissible? I'd like to ask Scalia what principle he may use to invalidate an attempt by the Congress to similarly compel churches to hire gays (e.g., by threatening to strip any such church of its tax-exempt status).