There is no First and Second. We jump straight to the Third. Inspired by Isaac Newton. Because he was a top guy in his field, and I admire that.
Newton's Third Law of Motion postulates that "for every action there is an equal and opposite reaction."
This is true in Constitutional Law, too, at least as to unsettled questions.
After they become settled, we forget that there could even BE an opposition, so completely do we (usually) accept the outcome.
Slavery, for instance. Who could be in favor of that? No one, today, but yesterday? There were lots of people who figured it was okay.
Jim Crow? How would you like to argue in favor of racial discrimination today? You'd probably have a big problem. Brown v. Board had a lot of opposition then and later. Today it's settled law. You can't keep people out of public school on account of race. This doesn't mean that there aren't a lot of all white and all black schools in this country, because of residential patterns (themselves often, but not only, the result of discriminatory pressures in all sorts of ways, and fields, from real estate sales to private and government sponsored lending practices). There is a tendency to want to be around people like you. The expression is "preferring to stick to your own kind."
But we were talking about the Constitutional Law equivalent of Newton's Third Law.
This is the one which means that if you pick up a weight, to the degree you are lifting, your feet are pressing into the floor to an equal degree. Whether you say you are picking up or pushing down, the effect is the same, equal and opposite.
The example on the link, above, has a rowboat next to a dock. If you have one foot on the dock and the other in the boat which is free to move, you are going to be doing a split as the boat goes one way and the dock stays here. Equal and opposite feet.
We're leading up to something. Unsettled law. To make a point.
There's a case that's going to be argued in the Supreme Court at the end of November and I'll bet you won't be able to tell me what the issue is even after I explain it to you, and that won't be from my lack of ability to explain issues.
The name of the case is FAIR v. Rumsfeld, he being the Secretary of Defense and they being a gay rights activist group that opposes the military's "Don't Ask, Don't Tell" policy. That's the one that Pres. Clinton fall back on when he was unable to push through his first policy initiative of allowing gays openly to serve in the armed services of their country.
Because we are not now using the draft, the military needs to go onto campuses to recruit new members, especially now that we are fighting overseas, as we frequently do.
But gay activists oppose the military coming onto campus to recruit for employment in organizations that bar them because they're gay. So they've persuaded some schools, and in particular my alma mater, New York University Law School to ban military recruiters from coming on campus.
The military and some Congress-people have reacted by passing something called the Solomon Amendment, named after the late Congressman Solomon, a Republican from upstate New York. It provided that if a school banned military recruiters, it should not remain eligible to take federal funds in support of its educational mission. Don't take the money if you won't cooperate is the idea. Money does not come without strings, and ours is that you take the money, we come on campus to recruit. Seems only fair.
So, NYULS forfeited a million bucks, $1.3 million to be exact, putting its money where its principles were. But then the gummint got smart and said, hold on, if your law school bans our recruiters, it isn't just the law school that is going to lose out on the $1.3 million, the whole university is going to lose out, and now we're tawkin' $130 million. So John Sexton, the former dean of NYULS, and now the head of the whole shebang, the HUGE NYU covering all the schools, calls up Ricky Revesz, the new dean of the law school, his successor, and says Rick, it's nice to have principles for $1.3, we can afford that, but Jeezus! $130 million, we're tawkin' real money here that the university needs. You're going to have to hold your horses. So Ricky says okay. Like what choice does he have. $130 million is a lotta clams, even for New York, and the recruiters are allowed to recruit on campus.
You know, we WANT good lawyers in the military. We want NYU trained lawyers to say to the West Point trained generals, Hey look, we have this thing called the Due Process clause. It's what you're fighting for for crying out loud. You can't treat people like that in Abu Ghraib and Guantanamo. Didn't you see "An Officer and a Gentleman?" oops, I mean "A Few Good Men?" Jack Nicholson was the BAD guy in that movie and he was a gentleman. Tom Cruise, the Ivy League lawyer, was the Good Guy. Even the private soldiers got the message there, after they were convicted. "We were supposed to use our superior strength to protect the weak..." (That's pretty close; you could look it up.)
So the NYU gays and civil rights crew are opposed to military recruiting when if they took a longer view they might see their way clear to INVITING the military to recruit NYU trained lawyers. Some of 'em are pretty good.
Okay, suppose you were going to bring a lawsuit to determine whether the military could come on campus to recruit. What would your principle be?
Let's say you were representing the gay students who opposed recruiting for an employer who discriminated against gays. That seems like a fair enough proposition to warrant writing to your congressman favoring a change in the law, and maybe even walking a picket line around the school if you want. Meanwhile the recruiters come on campus and recruit and everyone is happy except the gay activists. Well, we can't make everyone happy, can we. We're a democracy and we contain multitudes, to paraphrase Justice Whitman. That would be Walt Whitman, the poet who wrote in plain English, on self-contradiction.
But the gay activists sued to defeat the Solomon amendment and won in the Third U.S. Circuit Court of Appeals in Philadelphia.
The 3rd Circuit ruled that the Solomon Amendment violated a new provision of Constitutional Law.
And what is that, pray tell?
Well, do you remember when the Boy Scouts of America banned young Mr. Dale, an Eagle Scout and troop leader who was also homosexual and let everyone know about it? The Supreme Court said that it was okay for the Scouts to throw Mr. Dale out because the Scouts was an "expressive organization" in the sense that it was in business to send a message to boys. That message was contained in the Boy Scout Oath: On my honor I will do my best to do my duty to God and my country. I promise to be honest, loyal, thrifty, morally straight, clean, brave and reverent."
Engaging in homosexual activity failed to square with the Boy Scout motto and oath. So Mr. Dale had to go. Sorry.
Then there was the Boston Parade case, where the Irish of Boston threw a parade every St. Patrick's Day, March 17. Hurley wanted his gay group to march in the parade but the straights opposed and this case went to the Supreme Court. Was the St. Patrick's Day parade in Boston an expressive association like the Boy Scouts of America?
No.
So many different groups had been allowed to march in the parade that you couldn't really say that the parade organizers were an expressive group whose message would be diluted if they allowed the gays to march. I can see the green kilts.
So the question is going to be whether a university is the Boy Scouts or a Gay Pride Parade.
That's not quite how the military sees things. The government says, "Hey, you want the money, it comes with strings." Or as the Brits might say, "You take the king's shilling, you obey the king's rules." Or the queen's, as the case may be. Traditionally the redcoats got a shilling for enlisting, or maybe that was just part of their salary.
Under the Spending Clause, Congress can offer highway money to the states on the condition that the states impose the 55 mph speed limit, or lower the DUI/BAC level to 0.08, down from 0.10 or the earlier 0.15. So why can't it condition education funds to allowing military recruiters.
Thus we have the government's constitutional argument under the Spending Power (Art. I, Sec. 8) pitted against the constitutional right of expressive association which says that if you are a church you don't have to hire any rabbis. It would send the wrong message and the freedom of conscience protected by the First Amendment includes the fight not to be forced to sing hymns in which you do not believe, except when it comes to the Pledge of Allegiance, of course, except in the Ninth Circuit; Newdow. This is an exception to the exception. The Court didn't rule in Newdow that you couldn't be forced to recite the Pledge if you were a student. It did that in 1943 in Barnette, when it said, Justice Jackson writing, that no official high or low could impose on you some official orthodoxy in matters of politics, morals, or religion because there was no official orthodoxy to impose. We're free to believe and say what we want, not words that someone puts in our mouths.
The gays feel that allowing military recruiters on campus violates someones right of expressive association, I'm not sure whose, theirs or the university's. I don't think I'd mistake a military recruiter for the university any time soon.
But the gays have a better argument than that.
Theirs is that by allowing on campus employers who discriminate, the university is endorsing the message that discrimination on the basis of sexual orientation or gender preference is okay when it's not. It would be like allowing on campus recruiters for the KKK who espouse white supremacy. The KKK, presumably, could use good lawyers, too. If NYULS allowed KKK recruiters on campus, the world would come to an end, right?
Is this discriminating against discriminators because of the content of their message, or is it discriminating against discrimination? Are government sponsored agencies, and universities that accept federal money allowed to discriminate on the basis of the content of the message of speakers within their precincts? May museums that accept government money discriminate against art that they find distasteful or subversive?
This is getting complicateder and complicateder.
Which textual provision does this case fall under? The Spending Clause? The First Amendment?
It's pretty hard to tell. Each side will give you a different answer.
That's why I posed the challenge that I didn't think you could tell what the issues was even after I explained some of the facts and issues. Jeffrey Toobin was unable to tell, so he just described, in the New Yorker, this week (Aug. 1, 2005) which is where I got the idea. He did a good job of not identifying the issue, or or identifying several of the issues, he just didn't know which would be determinative.
Kathleen M. Sullivan, a leading constitutional lawyer, is writing an amicus brief for the gays. She says:
Government can't have that much leverage.
If we lose this case, there is nothing to stop the government from saying it will take away all federal funds if a university engages in stem-cell research, or gives birth-control to its students, or performs abortions in its hospital."
Wow, that's pretty serious, heavy-duty stuff. A lot is at stake if that's what FAIR v. Rumsfeld is all about.
Another attorney for the plaintiff's puts the issue this way:
The military is saying to the universities,
"We will come onto your campus.
We will discriminate against your students.
And you will help us do it."
Charles Fried, a former Solicitor-General in the Reagan administration, who teaches at Harvard Law School, the NYULS of Boston, that conservative bastion, says this:
But neither the Scouts nor the parade organizers were taking federal money.
When a group takes money from the government, the government is allowed to attach strings.
And allowing military recruiters is a perfectly appropriate string.
If it seems difficult to imagine the Supreme Court protecting discriminatory behavior, look at the cases allowing private discrimination, as opposed to state sponsored discrimination. The leading case on privately allowed discrimination, the one that allows the Augusta Golf and County Club, home of the Masters Golf Tournament, to discriminate in its membership against women members is called Irvin v. Moose Lodge No. 107. As long as the distinction between private conduct and state sponsored conduct remains, private discrimination on racial, ethnic, and gender grounds stands. That distinction was first proclaimed in the so-called Civil Rights Cases after the civil war, when blacks were barred from entering a theater, an opera house, and a train. All privately run. Not state agencies. You could, at that time, discriminate. Now we have anti-discrimination laws in public accommodations in interstate commerce, such as restaurants (Ollie's BBQ) that purchase out of state supplies, and motels (Heart of Atlanta) that have an effect on interstate commerce by deterring travel through racial discrimination.
We have discrimination laws within the state, or some states (in California, the Unruh Act, Civil C. Sec. 50 or 51, et. seq.).
But we don't know yet whether an employer that discriminates on the basis of sexual preference can come onto campus to recruit.
Each side will make a plausible sounding case. For each argument made by one side, there will be an equal and opposite argument made by the other side. Equal, that is, until the Court says otherwise, if it can. Some Supreme Court opinions are so every-which-way that no one can tell which argument won, if one did. Bakke is a good example. Eight conflicting opinions plus Justice Lewis Powell's adopted by a 5:4 vote a generation later in the U.M. cases, Gratz and Grutter (2003). Diversity. That's the big deal in affirmative action, not bring up to speed a stepped on race left behind and trying to catch up. Got it. Diversity. That helps. Sit us all next to one another and by osmosis something good is going to rub off from the advantaged to the disadvantaged. Got it. Thanks.
By a 5:4 vote the Supreme Court will tell us why the losing side is all wet in FAIR. The decision will either be about discrimination based on viewpoint or it won't. It might be about Congressional power, like the Marijuana case, Raich (2005), Gonzales v. If you thought it was about Mj going in, you were misled. No, no, no, it's all about something else, so we don't have to decide tough questions about Mj. Same with "under God." No standing for Newdow, so we don't reach the hard question.
What makes a question hard in Conlaw? The doctrine deciding the outcome doesn't have a constituency. Come back when it has a respectable constituency, a critical mass.
Our reaction to decisions in hard cases?
"Oh, yeah, I can see that, NOW."
How come we couldn't see it before?
Because this is what happens in a made up body of law.
We don't know and won't be able to tell the outcome and its rationale until the end of next term, I fear, and by then, we might have new justice John Roberts telling us. Meanwhile, his guess is as worthless as ours.
Equal and opposite.
Remember that.
Newton.
Until after the case is decided.
Sheridan.