This week’s New Yorker has an article by Jeffrey Toobin (I always confuse him with Jeffrey Rosen) about an upcoming Supreme Court case, FAIR v. Rumsfeld, that touches on gay rights. Strictly speaking, it’s not a gay-rights case; it involves the constitutionality of the Solomon Amendment, under which federal funding is withheld from any university that contains a law school that bans the military from on-campus recruiting. Many law schools include sexual orientation in their non-discrimination policies, and because gays aren’t allowed to serve openly in the military, the schools ban the military from recruiting on campus, just as they ban any law firm that discriminates on the basis of sexual orientation. The law schools claim the Solomon Amendment violates their free speech, while the government claims it has a right to attach conditions to federal funding. The federal appeals court ruled in favor of the law schools, and the Supreme Court is hearing arguments on the case next term.

I think I would side with the government on this. One, I don’t think this is a free-speech case; the law schools are free to vehemently speak out against the military’s policy, organize protests, whatever they want. Two, the government is not forcing any policy on the schools; they are free to choose between accepting federal funds and banning military recruiters. But this is a weaker argument, because (a) we’re talking about withholding federal funds from entire universities – $130 million in the case of NYU – and (b) if it were really a free-speech issue, I don’t think the federal-funding excuse would pass muster.

I was going to make a third point that the military is probably different from a law firm, but if I were a judge writing the opinion, I’d probably leave that part out, just because I wouldn’t want to go there.

Incidentally, the article also has some predictions about how John Roberts would vote on the case if he were confirmed.