A Stitch in Haste

Recently I blogged about how the Boy Scouts, the (nominal) victors in Boy Scouts v. Dale, were now forced to live with that decision on the downside, namely that they, as the private association they sued to be treated like, could no longer receive special treatment from the military.

Well, the Dale ruling has backfired against those opposed to gay rights yet again -- this time used by a federal appeals court to hold that the hideous Solomon Amendments, which require colleges and law schools to extend to military recruiters all the same access and assistance that they offer to other recruiters despite the military's "Don't Ask, Don't Tell" discrimination policy, are unconstitutional:

In Dale, the Supreme Court recognized that “[t]he forced inclusion of an unwanted person in a group” could significantly affect the group’s ability to advocate its public or private viewpoint. Just as the Boy Scouts believed that “homosexual conduct is inconsistent with the Scout Oath,” the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that “homosexuals do not provide a role model consistent with the expectations of Scouting families,” the law schools maintain that military recruiters engaging in exclusionary hiring “do not provide a role model consistent with the expectations of” their students and the legal community. Just as the Boy Scouts endeavored to “inculcate [youth] with the Boy Scouts’ values -- both expressively and by example,” the law schools endeavor to “inculcate” their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies. And just as “Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,” the presence of military recruiters “would, at the very least, force the law schools to send a message,” both to students and the legal community, that the law schools “accept” employment discrimination “as a legitimate form of behavior.” [Citations omitted].

In other words, be careful what you wish for, especially when it involves anti-gay discrimination.

I'm not sure the Third Circuit is entirely correct in the ruling overall or that the holding will survive an appeal to the Supreme Court. First, the Spending Power, from which the Solomon Amendments are derived, is essentially plenary. Second, the Supreme Court has always shown great deference to the military. Still, seeing Dale used to actually champion a gay rights cause definitely has a certain enjoyable irony to it.

Meanwhile, let the op-eds start flying.

Related Posts:
Gay Marriage: Any Lessons from the Boy Scouts?
Supreme Court Turns Away Massachusetts Gay Marriage Challenge