Polsby: "Barely a First Amendment Case at All"

I don't get it. The Solomon Amendment leaves professors, law schools and universities free to teach, say and write whatever they please on whatever subject. The statute sets up a minimal, easy-to-comply-with regulation of behavior, not speech. Rumsfeld v. F.A.I.R. as a "core first amendment" case simply does not scan.
The law schools - I am trying to reconstruct the argument as best I can -- say, "We're an expressive association, like the War Veterans Council in Hurley v. IAGGB (the St. Patrick's Day Parade case); we're like the Boy Scouts in the Dale case. Just as a state could not use its public accommodations laws to force the Boy Scouts to appoint a gay rights activist as a scoutmaster, or to force the war veterans council to make room for gay rights protesters to march in its parade, it follows that Congress could not use its powers to raise and support armies and to provide for the common defense and general welfare, to force us to receive military recruiters."
That's plaintiffs' case in a nutshell. And everything is wrong with it.
1. When the Congress tells the schools that they have to hire a warmonger to run their peace studies programs, only then their will their situation begin to resemble that of the Boy Scouts in the Dale case. When Congress prescribes universities' curriculum, and decides that every course must (or for that matter no course may) contain a gay, lesbian, transgendered and bisexual module, then they may complain that their rights under Hurley were violated.
2. Assuming law schools are "expressive associations," it remains for the plaintiffs to demonstrate, not merely assert, that, because the first amendment forbids a state to command a certain result under its public accommodations laws, therefore the first amendment forbids the Congress to command that same result using the raise and support armies clause and the spending clause. The point isn't obvious. The decisions of Congress, when it is acting under Article I, section 8, clause 12, receive more than ordinary deference.
3. As I mentioned yesterday, the Solomon Amendment does not "force" anyone to do anything - unlike the public accommodations statute in Dale, which would have resulted in a direct court order to the Scouts to appoint the plaintiff as a scoutmaster.
4. And further, even if the threat to withdraw incentives did amount to "coercion," the Solomon Amendment does not coerce law professors and schools into anything like the personal contact with JAG officers that scoutmasters have with the boys in their troops, nor does it affect the content or curriculum of anything taught in law schools or universities.
I appreciate the plaintiffs' desire to make what use they can of Hurley and Dale, the Supreme Court precedents most hated by gay rights litigators, to further what is seen as a gay rights objective. But those precedents simply don't fit the facts of the Solomon Amendment case, which is barely a first amendment case at all.
After all, no one in this litigation has questioned schools' constitutional right to shun the military. The question is whether they may assert that right and then insist that the very fact that they have asserted that right awakens yet a further constitutional right, namely the right to receive government money. The second constitutional claim is something of an Ezekiel's Wheel - way up in the middle of the air. If you aren't entitled to government money in the first place, you cannot become entitled to it simply because -- by behavior and actions, and not by speech and persuasion -- you seek to frustrate a duly enacted and concededly lawful congressional policy. Think of it this way: a state could give money to the Boy Scouts on the condition that they admit gays. The Scouts would either take the money and comply or not take the money. Does anyone think that they could take the money and, as a matter of first amendment right, still exclude gays?
F.A.I.R.'s brief to the Supreme Court uses a tantrum word, "bigot," to describe the U.S. military. Their counsel of record has used this term again and again in public to refer to the armed forces. F.A.I.R.'s members must surely be aware that it is not the military that is actually making the policy that they don't like. It isn't up to the armed services to determine who is eligible to serve and who is not. "Don't ask, don't tell" is a statute -- the law of the land. The law schools, if they are morally serious, should boycott the organizations actually responsible for that law. Neither they nor their universities should take money from the unclean hands of Congress, which passed the law. They should not allow the Department of Justice, which enforces the law, to interview on campus. And they should certainly decline to supply law clerks to the judiciary, which has repeatedly upheld the law.
Of course the schools say that they can't do these things. Actually, they can. It's just that they don't want to.
Read the post by William Eskridge to which this post is a reply. Or read William Eskridge's response to this post.