The cultural struggle over homosexuality is being fought in two arenas with quite different results.
The first is the arena of public opinion, and here, thanks to generally favorable media attention, gays and lesbians are experiencing great success.
The recent protest against Colorado Springs-based Focus on the Family produced the usual lopsided media coverage. On one side were fetching photos and references to gays and lesbians; on the other was a series of hateful quotes uttered by the most ignorant “supporters” of Focus on the Family.
This familiar formula isn’t likely to change anytime soon, but there is another arena where the same cultural and social issues are being contested, and here the results are much more mixed. That arena, of course, is the courts.
On Monday, the U.S. Supreme Court announced it will review a lower court ruling issued late last year which held that Congress could not withhold federal funds from law schools that refused to allow military recruiters on campus.
That decision – made by a split three-judge panel in the 3rd Circuit Court of Appeals – if allowed to stand, would doubtlessly spawn fresh policy disputes at hundreds of other colleges and universities.
The fact that the Supreme Court will hear the case is decidedly not good news for the coalition of law schools and faculties that dreamed up the rather novel arguments presented to the 3rd Circuit.
The law schools claimed that their First Amendment associational rights were violated by the mere presence on campus of military recruiters. The law professors claimed that because their schools had employment policies that barred discrimination based on sexual orientation, their rights of association were violated when government recruiters came looking for military judges and lawyers who, under military policy, could not be openly homosexual.
The dissenter in this case pointed out that the court majority failed to even address whether Congress has clearly enumerated constitutional obligations to finance the military and provide for the “common defense.” The same article of the Constitution authorizes Congress to “raise and support armies.”
The Denver-based Mountain States Legal Foundation, in a friend-of-the- court brief urging the Supreme Court to review the case, made the same point. The foundation also emphasized the government’s right to condition financial grants and pointed out that under the Constitution, the federal government could completely withhold funds from educational institutions. Thus, the brief said, it can hardly be argued that law schools are entitled to federal money, absent any restrictions.
The current case isn’t just about the power of Congress or the specific language of the Constitution, factors that on the surface favor the government’s position. It’s also a part of the cultural conflict and an example of the effort by academic elites to use courts to produce political and cultural shifts that they could not achieve through legislation.
The law professors who fashioned the complaint and the subsequent arguments were quite clever in their approach. They persuaded the appellate court majority to issue a decision that was very favorable to gay and lesbian interest groups based on two prior Supreme Court decisions that were decidedly unfavorable to these same groups.
That’s quite a trick, but was it too clever?
The first case involved the Boy Scouts’ right to exclude homosexual members and leaders. This time around, however, the law professors argued that the law schools are akin to the Scouts and that military recruiters on campus interfere with the associational rights of faculty and students.
The second case cited was the Supreme Court decision upholding the exclusion of gay and lesbian groups from the Boston St. Patrick’s Day Parade on the grounds that their presence altered the message which the parade organizers intended to deliver. This time, the lower court actually said that the message of the law schools (whatever that is) may be similarly altered by military recruiters.
These are ultimately flimsy arguments. What the case comes down to is whether the sensitivity of the law schools on social matters must trump the ability of Congress to raise taxes, appropriate funds and provide for the common defense. Sensible people would think not, but are there still five sensible people on the U.S. Supreme Court?
Al Knight of Fairplay (alknight@ mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
