The most interesting counterpoint is the Dale case, which involved the SCOTUS striking down a New Jersey law that, by operation, required the Boy Scouts of America to not exclude gays from participating as scoutmasters, ruling the law was an unconstitutional infringement upon the Boy Scouts' First Amendment rights.
Chief Justice Roberts stated that:
FAIR argues that the Solomon Amendment violates law schools' freedom of expressive association. According to FAIR, law schools' ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools' obligation to assist them. Relying heavily on our decision in Dale, the Court of Appeals agreed. 390 F. 3d, at 230-235.
In Dale, we held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law, which required the organization to accept a homosexual as a scoutmaster. After determining that the Boy Scouts was an expressive association, that "the forced inclusion of Dale would significantly affect its expression," and that the State's interests did not justify this intrusion, we concluded that the Boy Scout's First Amendment rights were violated. 530 U. S., at 655-659.
Dale is easily distinguished from the ROTC case, and Chief Justice Roberts does so:
The Solomon Amendment, however, does not similarly affect a law school's associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school " 'to accept members it does not desire.' " Id., at 648 (quoting Roberts, supra, at 623). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra, at 16, so too a speaker cannot "erect a shield" against laws requiring access "simply by asserting" that mere association "would impair its message." 530 U. S., at 653.
Now to be clear, Dale is not a defensible decision period. The exercise is simple enough. Replace black for gay. Moreover, Dale gives no solace to the schools here. The Solomon Amendment, as well as for the reasons Chief Justice Roberts describes, is also different because it is an exercise of the Spending Power, clearly leaving the choice to the schools. They can speak as they choose. They are not entitled to federal money.
Chief Justice Roberts expounded on the difference in Rumsfeld:
[In] Grove City College v. Bell, 465 U. S. 555, 575-576 (1984), we rejected a private college's claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument "warrant[ed] only brief consideration" because "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." Id., at 575. We concluded that no First Amendment violation had occurred--without reviewing the substance of the First Amendment claims--because Grove City could decline the Government's funds. Id., at 575-576.
. . . The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools "could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests"). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say.
If indeed Barack Obama intends to endorse providing funding to faith based organizations that choose to discriminate in hiring, then that is on him. There is no legal escape hatch as the New York Times attempts to argue.
And as I said before, if he does intend to do that, I will not support him nor will I vote for him for President.
By Big Tent Democrat, speaking for me only
