Subsidiarity's Lesson for Military Recruiting

The Third Circuit has issued an interesting ruling prohibiting the federal government from enforcing the Solomon Amendment (which barred the federal government from providing funds to schools that obstructed military recruiting).  Writing for the majority, Judge Thomas Ambro relied on the U.S. Supreme Court's 2000 decision in Boy Scouts of America v. Dale, in which the Court held that the Boy Scouts could not be legally required to accept an openly gay scoutmaster:

"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," Ambro wrote.

"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," Ambro wrote.

Likewise, Ambro said, while the Boy Scouts argued that they were aiming to "inculcate [youth] with the Boy Scouts' values -- both expressively and by example," the law schools, too, say they are aiming to "inculcate their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies."

Ambro noted that, in Dale, the justices held that an openly gay man'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 accept homosexual conduct as a legitimate form of behavior."

Likewise, Ambro said, "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.'"

Regardless of one's view of the Boy Scouts' policy, Dale should be applauded as an essential judicial support for the principle of subsidiarity; similarly, regardless of one's view of the legal academy's stance toward the military, it seems that the Third Circuit's ruling should be similarly embraced.  Law schools, just like the Boy Scouts, are functioning as subversive wrenches in the top-down enforcement of contested moral norms.

Rob