Solomon Amendment Upheld

The Supreme Court, in a unanimous decision written by Chief Justice Roberts, upheld the Solomon Amendment, thus forcing universities to permit the military to recruit on campus even if the military continues to violate their anti-discrimination rules. I think the decision is probably right–I agree that the amendment is constitutional, and while I found the innovate statutory interpretation put forth by the Harvard faculty appealing, it was a stretch in terms of Congressional intent and at any rate would have been only a temporary reprieve until Congress could change the statute anyway.

While I don’t have time to go into this in detail, however, there are some serious potential contradictions in this issue, particularly with respect to the conservative positions. I think this case was right because I think Boy Scouts v. Dale (which didn’t allow New Jersey to apply its civil rights statutes to the Boy Scouts) was wrong. I think states should be given wide latitude to pass civil rights legislation, and given some discretion to balance social egalitarianism with freedom of association. Like Marty Lederman and iocaste, I don’t think it’s easy to distinguish between this case and Dale, and getting the Court into the business of determining what values are central enough that restricting them violates their “freedom of expressive association” leads to the kind of outcome-oriented reasoning we see in these two cases, where the unpopular minority draws the short straw on both ends. Today’s decision was right, but it should raise serious questions about the workability of the doctrine in which it’s embedded.