Rumsfeld v. FAIR

I've linked the Boston Globe article on this one. I add the SCOTUSblog link here as well, just so you can see how 'balanced' the BG is on this argument.

No one should be surprised that this is going to make the law schools angry, but from the analysis, it looks like the majority of the court are leaning against FAIR.

The closely-watched case turns on issues of gay rights, free speech, academic freedom, and national security.

Chief Justice John G. Roberts Jr. questioned whether anyone would believe a law school espoused the views of the military just because it permitted recruiters on campus. Justice Stephen Breyer suggested the schools were acting like reluctant taxpayers -- willing to take government benefits and not willing to pay for them.

But Justice David Souter voiced concern that the law, known as the Solomon Amendment, was forcing universities ''in effect to underwrite [the military's] speech" and that the measure's sole purpose was to restrict the schools from expressing their views.

''The Solomon Amendment is directed or is responsive entirely to positions taken by law schools on, among other things, First Amendment expressive grounds," he said. ''So if we are going to address the Solomon Amendment, I think we are addressing an exclusively First Amendment speech expression issue."

And

In her questions, Justice Sandra Day O'Connor focused on the practicalities of the law's enforcement, asking what sort of notices the law schools might post at their recruitment offices to make clear their stance opposing the military's position on gays and lesbians.

''Can [the law schools] come forward with their position on this in every recruitment office without violation of the amendment?" O'Connor asked.

Clement said they could, but added that there is a ''line."

The odd thing is that the BG only discusses the arguments related to free speech. SCOTUSblog tells that there were other arguments that were of concern as well.

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

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's interesting that the court is at least viewing this as the First amendment doesn't trump other constitutionally mandated activities, such as providing for a military. They also appear to be questioning the logic of the First Amendment allowing for the violation of laws because a group or individual disagrees with the context of the law.

With Souter (prat) and Ginsberg being the only ones obviously against this case, it looks at present like it may fall for the government in this case.

This article from Law.com has additional information and commentary.

Roberts said the law, passed in 1994, "doesn't require anything" from universities in terms of support because they can simply choose to refuse federal money. But universities contend that because the law allows the government to withdraw federal funds from an entire university, even if only the law school refuses equal access to military recruiters, that is an impossible choice that amounts to coercion.

Roberts shrugged off that argument Tuesday, implying that if universities really felt strongly about the military's policy regarding homosexuality, they would pay the price of losing federal money institution-wide.

Rosenkranz also countered that under the Court's precedents, the government may not use the threat of cutting off funds to force recipients to surrender their constitutional rights. "All bets are off if there is a superseding right," he said.

Roberts fired back that there is also a "right to raise the military." He and other justices seemed to view the Article I power of Congress to "raise and support armies" as a justification for the recruiting statute that outweighs law schools' First Amendment objections.

I like the coercion argument. In some ways it's quite accurate. Many of these schools take very large amounts of money from the government. If the law school alone forbids access by military recruiters, then the whole school loses. Though I find this a bit hard to swallow when this is approved law that is being tested in the courts. How is it coercion when you are violating the law? Should the government, and thus the citizenry of the US, be forced to give institutions money even when they violate standing law?

The NYTimes has an article with some other quotes of interest:

With both sides clothing their arguments in the language of nondiscrimination, it became clear that the nondiscrimination principle cuts in more than one direction. Justice Breyer suggested to Mr. Rosenkranz that a victory for the law schools might also provide a constitutional basis for others to object to abiding by other federal antidiscrimination laws.

"They also have the same right, Bob Jones University, because they disapprove of social mixing of the races?" Justice Breyer asked, referring to the Greenville, S.C., university that lost its tax-exempt status because of its racial policies in a Supreme Court case 25 years ago.

Mr. Rosenkranz tried to argue that the government could demonstrate a compelling need to eradicate racial discrimination.

But the military has needs of "immense national importance" also, Justice Scalia said.

The discrimination argument strikes me as strange when both parties use it.