And yet another fine example of the distinction between judicial/legal philosophy and moral/ethical values, with a bit of “he who pays the piper calls the tune” thrown in for good measure.
If not already clear from various other writings on the topic here, I find the “Don’t Ask, Don’t Tell” way of handling the issue of gays in the military to be a worst of both worlds. It allows discrimination, does little to actually discourage witch hunts, and encourages folks to be deceptive, all in the name of what seems to me to be baseless homophobic fears.
Now, a number of institutions of higher learning have declared that they think that the official military policy on gays is discriminatory, and have used that as a justification for restricting or banning military recruitment on campus. To do otherwise, they declare, would be tantamount to condoning the “Don’t Ask, Don’t Tell” policy.
Along came the Solomon Amendment in 1994, though, which basically said, “Hey, you don’t allow military recruitment? You don’t get any federal money going to your law schools.”
Which, in turn, has led to law suits and court cases claiming in turn that this infringes on Free Speech (on the part of the academic institutions), by coercing, via purse strings, these institutions to act in violation of their principles. One of these, Rumsfeld v. FAIR, is on its way to the Supreme Court.
Now, first off, do such institutions have a Free Speech right? Individuals do, of course, but do academic institutions?
But even leaving that aside, is it a violation of those rights to require a quid pro quo for monetary support? Nothing keeps those institutions from continuing to lambaste, in the loudest and most vociferous tones, the military policy on gays, and of making it clear that the “Don’t Ask, Don’t Tell” policy is discriminatory and wrong. But if a school is going to accept Federal money, they have to expect some strings on it; to claim such money is a “necessity” and that withholding it is tantamount to censorship and oppression seems to be a matter of protesting too much. And since the Solomon Amendment doesn’t require special treatment, only parity with other recruiters, the argument seems even flatter; if University X decided that it didn’t like Wal-Mart, and refused to schedule Wal-Mart recruiters at the campus, would they still be justified in howling if Wal-Mart withdrew scholarships and other support?
But it gets even more complicated than that. While a number of academic groups are supporting the universities in the name of civil rights and free expression, other liberal groups are concerned that if the Solomon Amendment is overturned, it might (gotcha!) hurt Federal laws coercing behavior based on the pocketbook that they like — such as Title 6 (the Civil Rights Act of 1964) and Title 9 (which prevented sex discrimination in federally funded educational programs).
In other words, liberals have found it convenient and positive to have the Feds coerce via purse strings causes that they like, but are disgruntled over similar coercion for causes they don’t like. (The opposite hypocrisy can be lodged at conservatives, some of whom wailed about oppressive government when it came to federal anti-discrimination legislation, but are now willing to use the same tactics for their own ends.)
And that’s where the distinction between the law and the good becomes so important. If you decide that a particular course of action, a particular exercise (or restraint of exercise) of legal power, is acceptable, then it remains acceptable no matter what the ends or goal of the action is. Free speech can’t be just for good free speech; it has to be for all free speech, even if it’s speech about something horrid. And if you decide it’s okay to use central authority in a certain way, even for a laudable end, you create the precedent for using it toward ends that you may not consider so laudable. (This is a trap that liberals have long laid for themselves, and, ironically, conservatives are blindly following them along without having learned the lesson — indeed, with seeming to have thrown the lesson away for the sake of convenience.)
It may be that the “higher” goals and protection against racial and sexual discrimination, derived from the Constitution, may give Federal laws like Titles 6 and 9 more protection than the Solomon Amendment will be granted by SCOTUS. But it’s yet another example of how ends being used to justify means can lead to unexpected consequences to those means down the line — something that lawmakers of all ideological stripes really should have learned by now.