A Stitch in Haste

Back in December, when the Supreme Court held oral arguments in Rumsfeld V. FAIR, No. 04-1152, I noted the following:

The real question now is not what will become of Rumsfeld v. FAIR, but rather what will become of Boy Scouts v. Dale, 530 U.S. 640 (2000). The Supreme Court will have to somehow reconcile the (anti-gay) Dale case in order to uphold the (anti-gay) Solomon Amendment. That doesn't mean Dale will be overturned, but it could mean that it will be rendered a precedential dead-end. So theoretically we could see a time when we don't have a robust Dale-inspired line of anti-gay cases and also no "Don't Ask, Don't Tell" or Solomon Amendment. I could live with that.

Well, here's the "somehow" --

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.
...
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."

I find that reasoning wholly unpersuasive. It's arguably completely backwards. The Court is essentially saying that someone who is outside an organization by choice somehow has greater claims against that organization than someone who is outside by forced exclusion. Colleges have less control over their prospective visitors than over their prospective students, faculty or staff? That cannot possibly be right.

Would a lawyer who doesn't want to join a law firm have greater legal standing against that firm for wrongful discrimination than the lawyer who does want to join and is denied for an improper reason such as race or gender? Would the retiree who wants to take a single non-credit course at the local college have greater legal protection than the recent high school school graduate wrongfully denied full-time admission? Does a tenant owe his roommates less accommodation than his roommates' visitors? Would the Boy Scouts have less of a right not to buy its uniforms from a particular apparel manufacturer than it would to keep out gays as members?

I say again: that cannot possibly be right.

The very fact that the military "are by definition, outsiders" is precisely why the colleges should have a greater prerogative to exclude them than, say, the Boy Scouts of America should have to exclude gays. If the Court wants to argue (as it did) that "the military is different," then so be it. But the military is different because it's the military, not because it's an "outsider." To the extent that the military gets special treatment, it's despite their "outsider" status, not because of it.

Chief Justice Roberts' non-reconciliation of the Solomon Amendment with Dale is clearly the weakest part of the decision. I don't think it's unfair to call it embarrassing.

In any event, let's hope the whole issue quickly becomes moot via the inevitable abolition of Don't Ask, Don't Tell.