Tuesday, November 30, 2004
I share my friend Rob's enthusiasm for the principle of subsidiarity, and for the principle's diversity- (or, "divisions"-) enhancing effects. I am sympathetic to Rob's efforts, on this blog and in his important published work, to distinguish "subsidiarity" from devolution, federalism, or the agenda of the political right. Clearly, Rob is right to remind us that to embrace the principle of subsidiarity is to embrace the possibility of misguided local policy experiments and offensive private associations.
Nonetheless, I am not sure I agree with Rob's claim (below) that those of us who believe in subsidiarity, or who believe that the Boy Scouts case was rightly decided, must or should therefore "embrace" the Third Circuit's ruling in the Solomon Amendment case. First, I tend to doubt whether our elite law schools are, in fact, "functioning as subversive wrenches in the top-down enforcement of contested moral norms." In fact, I am confident that the same groups and advocates who are challenging the Solomon Amendment on "expressive association" grounds also support efforts by the state to impose -- in "top-down" fashion -- their own "take" on "contested moral norms." Indeed, I am quite familiar with the anti-Solomon Amendment case that was filed by Yale Law School professors and students. In that case, the Amendment was strongly challenged -- on Dale and "expressive association" grounds -- by eminent legal scholars who in other contexts forcefully reject the claim that private expressive associations have a First Amendment right to opt out of state-imposed anti-discrimination norms. My point, I suppose, is that those who genuinely embrace subsidiarity might not want to take comfort in the fact that, in this particular litigation, the side invoking subsidiarity-sounding arguments won.
Second, I think it is relevant that, in the Solomon Amendment context, we are dealing with conditions that the government is attaching to its own spending. That is, as I understand it, the Solomon Amendment does not, in fact, force law schools to endorse a message with which they disagree. Instead, it requires universities that accept funds under certain government programs to refrain from discriminating against the military when it comes to student employment. There is, of course, a subsidiarity lesson here: Private, expressive associations that hope to challenge or subvert the dominant orthodoxy should be careful about coming to depend almost entirely on government funding. As Justice Scalia put it, concurring in NEA v. Finley (1998), "avant-garde artistes such as [performance artist Finley] remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie pay for it."
UPDATE: Professor David Bernstein has this post up over at the Volokh Conspiracy, in which he observes that "this seems like a good time to remind readers of the inconsistency of those law professors who strongly opposed giving the BSA an expressive association right to exclude gay scoutmasters, but became born-again believers in freedom of association when the Solomon Amendment case arose." See also this post, by Professor Orin Kerr, also at the Volokh Conspiracy. Professor Kerr states, "[w]hile I disagree with the existing law banning gays and lesbians from military service, I find myself rather puzzled by today's ruling by the Third Circuit that the Defense Department cannot enforce the federal law withholding funds from schools that ban on-campus military recuiting (aka the Solomon Amendment)."