Solomon Amendment likely to survive
on Dec 6, 2005 at 11:44 am
Congress’ demand that law schools give military recruiters equal access to their students, despite the military’s policy of barring homosexuals from service, appeared to have survived quite easily its constitutional test in the Supreme Court on Tuesday, at least if oral argument reflects the Justices’ actual leanings. Aside from Justice Ruth Bader Ginsburg and, possibly, Justice David H. Souter, the so-called “Solomon Amendment” appeared to draw no serious opposition from the bench.
Chief Justice John G. Roberts, Jr., made it clear in several instances that he sees the case as solely one in which the law schools can pursue their desire to exclude the military’s recruiters simply by giving up federal funds. Other Justices, while making somewhat more nuanced comments, seemed to be troubled by the prospect that a major First Amendment ruling in favor of the law schools would open the way for individuals to resist obeying all kinds of laws — including federal anti-discrimination laws — by claiming their refusal to obey was a matter of their beliefs or conscience.
And, with some concessions by Solicitor General Paul D. Clement, some of the Justices — especially Sandra Day O’Connor — appeared to be satisfied that the law schools can get across their anti-discrimination message even while allowing military recruiters on campus and giving them equal access. Clement went quite far in saying that the Solomon Amendment would permit university and law school officials to engage in robust protests against military recruiters — including jeering when they walk into the room at a jobs or career fair.
Clement, in fact, was so expansive about the kind of protests he said the Solomon Amendment would not block that Justices Antonin Scalia and Anthony M. Kennedy voiced some concern that this might actually obstruct the military’s chances of any successful recruiting. The Solicitor General, however, did not yield, saying that military recruiters “were not afraid to confront speech” in opposition to their efforts.
The counsel for the law schools, New York attorney Joshua E. Rosenkranz, made reasonably well most of the points to be made on his side of the case, but to no apparent avail. And, by accepting somewhat extreme hypotheticals about extensions of his First Amendment protest argument, Rosenkranz opened the way for Clement, on rebuttal, to stress that there was “no limit to their argument” so that “more is at issue here than the exclusion of homosexuals.” The Court should be worried, Clement said, about law schools next objecting to military recruiters on a wide array of other grounds — objections to the military’s exclusion of women from combat positions that are the route to leadership, opposition to the war in Iraq, or to the war in Afghanistan. And, he said, “we have to worry about this coming back in the context of Title VI and IX.”
It was no surprise that the Solomon Amendment’s most avid supporter on the Court was Justice Scalia. He mildly scolded Clement for basing much of his argument on Congress’ power to attach strings to federal funds’ receipt, and not on Congress’ power “to raise and support armies.” Recruiting officers on college campuses, Scalia suggested, was a constitutionally endowed activity of the military. “We have said the judicial deference [to Congress] is at its apogee when Congress acts to raise and support armies. That’s precisely what we have here,” Scalia said.
But Justice Kennedy was also equally fervent in his support of the Solomon Amendment, as he openly fretted that “resistance to any statute could be justified as expressive speech.”
