Tuesday, November 30, 2004
I appreciate Rick's misgivings about my embrace of the Third Circuit's Solomon Amendment ruling, but his misgivings generate even deeper misgivings of my own. First, I agree that most law school faculties are not exactly bulwarks guarding against the collective imposition of contested moral norms -- on the contrary, they often function as the vanguard of the collective imposition itself. Nevertheless, I'm happy to welcome their support of subsidiarity whenever I can get it, even if it is unintentional or piecemeal. Whatever else the legal academy stands for, this case is a valuable implementation of subsidiarity.
Second, I agree that government funding can change the subsidiarity analysis, but it can't foreclose the analysis entirely. Especially in areas like education and health care, where government funds are a non-negotiable element of market viability, allowing funding to trump divergent messages and identities will eviscerate subsidiarity. If we're willing to allow the government to use its money to trump a law school's defiance of the military's policy on gays, are we also willing to allow the government to pull its funds from hospitals that refuse to perform abortions? I don't claim to have an easy answer -- indeed, I believe that the government should be empowered to promote or discourage certain messages, and the most obvious tool for doing so is its provision of funds. But if funding can justify otherwise unacceptable top-down impositions of contested moral norms across the board, I'm afraid we've created an exception that will swallow subsidiarity's (already tenuous) rule.