Solomon Amendment
Douglas Laycock
DLaycock at law.utexas.edu
Wed Dec 7 09:01:13 PST 2005
As someone else said, Woolley was a case where the challenged law
compelled something that the Court viewed as speech (rightly so in my
view), so the law was unconstitutional and that was why it could be
violated. It was not that violating the law was protected because the
violation was a way of protesting the law. Woolley covered up the motto
not just (or even mostly) to protest the law, but to avoid continuously
displaying the message.
The SG's concession that schools can protest the military's presence and
put up signs outside the interview room denouncing don't ask, don't tell
flows from the same point -- those protests and signs are clearly speech
in the Court's view (and rightly so in my view), and if the Solomon
Amendment purported to ban such signs in the name of equal treatment for
the government, the Solomon Amendment is to that extent
unconstitutional.
I am confident that in the Court's view, excluding the military from the
campus is conduct and not speech, and of course its view of conduct for
purposes of symbolic expression is very narrow. Think O'Brien and the
even more restrictive later case on sleeping in Lafayette Park.
Of course I agree that the speech/conduct distinction is far from
watertight. But this seems pretty clearly on the conduct side.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (phone)
512-471-6988 (fax)
-----Original Message-----
From: Mark Tushnet [mailto:tushnet at law.georgetown.edu]
Sent: Wednesday, December 07, 2005 5:55 AM
To: Douglas Laycock
Cc: Dellinger, Walter; Sanford Levinson; conlawprof at lists.ucla.edu;
DavidEBernstein at aol.com
Subject: Re: RE: RE: Solomon Amendment
As the time stamps on his and this post indicate, I take Doug's point
about having other things one ought to be doing. But this -- "violating
a law, and being immune from any penalties for that violation, is not a
constitutionally protected means of protesting the law" -- can't be
right either. Wooley v. Maynard, for example, is exactly such a case --
indeed, more so than FAIR, because there those asserting the First
Amendment claim actually did violate the law as a means oif protesting
it. Without thinking the issue through completely, I'm inclined to
think that this is going to be true of all, or at least of a large
subset of all, compelled expression claims (including some [many?]
claims of violation of the right of expressive association).
----- Original Message -----
From: Douglas Laycock <DLaycock at law.utexas.edu>
Date: Tuesday, December 6, 2005 10:26 pm
Subject: RE: RE: Solomon Amendment
> Well, that's the trouble with tossing off short comments when
one
> really should be working on other things. Sorry.
>
> Of course the existence of Article I power does not override
> constitutional limitations elsewhere. So the unstated premise in my
> unfortunately short comment is that there's nothing to the
> constitutional argument -- that violating a law, and being immune from
> any penalties for that violation, is not a constitutionally protected
> means of protesting the law.
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341
> 512-471-6988 (fax)
>
> ________________________________
>
> From: Mark Tushnet [tushnet at law.georgetown.edu]
> Sent: Tue 12/6/2005 9:23 PM
> Cc: Douglas Laycock; Dellinger, Walter; Sanford Levinson;
> conlawprof at lists.ucla.edu; DavidEBernstein at aol.com
> Subject: Re: RE: Solomon Amendment
>
>
>
> And, by the way, surely it isn't the case that Congress's power
to
> raise is, in itself (or coupled with the Supremacy Clause), sufficient
> to displace all constitutional limitations. I thought that was the
> lesson of Burns v. Wilson, among other cases. Would
it
> be constitutional for Congress to exercise its power to raise armies
> by drafting all and only those who voted for the Democratic Party's
> candidate in 2004 (or by accepting into a volunteer army only those
> who voted for the Republican candidate in 2004? The fact that the
> armed forces are involved might affect the standard of review applied,
> but it can't possibly
be
> enough in itself to resolve the First Amendment, etc., claims raised
> in FAIR (unless this country has a Constitution very different from
> the one I thought it had -- not an impossibility, I acknowledge).
>
> ----- Original Message -----
> From: Mark Tushnet <tushnet at law.georgetown.edu>
> Date: Tuesday, December 6, 2005 10:14 pm
> Subject: Re: RE: Solomon Amendment
>
> > I could be wrong. but I thought the point of the amicus brief
was
> > that law schools were in fact complying with the Solomon Amendment
> > properly interpreted (that is, properly interpreted,
> the
> > statute required that law schools give access to military recruiters
> > equal to that provded any other discriminatory employer).
That
> > argument may be too cute, but if you were attracted to it, the
> fact
> > that Congress has the power to raise armies, etc., wouldn't
> have
> > anything to do with the case. If Scalia's intervention was
> > sufficient to deflect the argument, it can't be that the justices
> > discussing the amicus argument were all that serious about the
> > argument.
> > Content-class: urn:content-classes:message
> > Content-Type: multipart/alternative;
> > boundary="----_=_NextPart_001_01C5FAD9.D9BAB0A1"
> >
> >
> > ------_=_NextPart_001_01C5FAD9.D9BAB0A1
> > Content-Type: text/plain;
> > charset="iso-8859-1"
> > Content-Transfer-Encoding: quoted-printable
> >
> > Isn't Scalia right? I have long wondered why the power to
raise
> > armies, =
> > together with the Supremacy Clause, isn't the end of the case.
> > =20
> > Douglas Laycock
> > University of Texas Law School
> > 727 E. Dean Keeton St.
> > Austin, TX 78705
> > 512-232-1341
> > 512-471-6988 (fax)
> >
> > ________________________________
> >
> > From: Dellinger, Walter [WDellinger at OMM.com]
> > Sent: Tue 12/6/2005 5:59 PM
> > To: Marty Lederman; Sanford Levinson; Douglas Laycock; =
> > DavidEBernstein at aol.com; conlawprof at lists.ucla.edu
> > Subject: RE: Solomon Amendment
> >
> >
> > I will weigh in when I can. for now, here's is Dahlia -- she links
> > to = the HLR brief if you go to Slate.=20
> >
> > Justice Stephen Breyer cites one of the amicus briefs = <"
> > target="l">http://www.law.harvard.edu/news/2005/09/
> 21_brief.pdf>
> > in the case that =
> > suggests that the law schools have not discriminated against
> > military = recruiters, but rather have adopted an evenhanded policy
from
> which
> > the =
> > military seeks an exemption <"
> > target="l">" target="l">http://www.slate.com/id/2131465/> . For
a =
> > few moments several justices are in the thrall of the amicus
> brief, =
> > until Scalia reminds Clement that the Constitution grants
> Congress
> > the =
> > power "to raise and support armies." Scalia wonders why that
> isn't
> > the =
> > end of this case.
> >
> > =20
> > Walter Dellinger
> > O'Melveny & Myers
> > 1625 Eye Street, NW
> > Washington, DC 20006
> > TEL: (202) 383-5319
> >
> > ________________________________
> >
> > From: Marty Lederman [marty.lederman at comcast.net]
> > Sent: Tue 06-Dec-05 5:36 PM
> > To: Sanford Levinson; Douglas Laycock;
> DavidEBernstein at aol.com; =
> > conlawprof at lists.ucla.edu
> > Subject: Re: Solomon Amendment
> >
> >
> > I think Sandy's broader point is an important one -- namely,
that
> > the =
> > government has been pitching this, and virtually the entire
press
> > corps =
> > has been reporting it, as a case in which schools are discriminating
> > = against the military and denying them equal access. I think it's
> > almost = certain the Court will uphold the law; but I think it's a
> salutary =
> > development that at least some of the Justices seem to
> understand =
> > clearly that what the SA condition coerces is not equal
treatment
> > (as in =
> > title VI), but an exclusive pro-military privilege -- an exemption
> > from = the rules that bind everyone else. Put that way, perhaps the
> > public = support for the law --the "Military Gets an Exemption From
> > the Basic = Rules That Apply to Everyone Else Act of 2001" -- would
> > be a
> bit
> > more =
> > equivocal.
> > =20
> > P.S. I should have noted that the very first challenge to
Clement
> > on =
> > the "equal access" question was from Justice Scalia, followed
> by =
> > Justices O'Connor, Kennedy and Breyer, and then Scalia
again,
> > insisting =
> > that Clement had had them "off galloping in the wrong
direction"
> by =
> > stressing "same access": "The statute requires much more
> than
> > that." =
> > Here's a link to the audiotape:
> > =20
> > rtsp://video.c-span.org/archive/sc/sc120605_rumsfeld.rm
> >
> > ----- Original Message -----=20
> > From: Sanford Levinson <')"
>SLevinson at law.utexas.edu>
> =20
> > To: Douglas Laycock <')" >DLaycock at law.utexas.edu> ;
=
> > DavidEBernstein at aol.com ; marty.lederman at comcast.net ; =
> > conlawprof at lists.ucla.edu=20
> > Sent: Tuesday, December 06, 2005 4:54 PM
> > Subject: RE: Solomon Amendment
> >
> > Doug concludes his posting by writing:
> >
> > =20
> > So I think the objection to the government's equality
> > argument is = not that it is false, but that it assumes the
> > conclusion.
> > =20
> > =20
> > But isn't this the thrust of Peter Westen's "emptiness"
> argument,
> > that =
> > all equality arguments assume their conclusion (i.e., that one
> has
> > a =
> > right not to be discriminated against on grounds of race,
religion,
> =
> > gender, etc., as against a widely shared perception that it is
> > perfectly = all right to discriminate against people on grounds of
residence,
> > age, =
> > attractiveness, etc., etc., etc.)? My initial posting was that
> the =
> > NYTimes was "misleading," not that it was necessarily "false."
> The
> > term =
> > "equality" is too capacious to generate easily identifiable "true"
> > or =
> > "false" arguments (or perhaps I should omit "easily"). =20
> > =20
> > sandy
> >
> >
> > ------_=_NextPart_001_01C5FAD9.D9BAB0A1
> > Content-Type: text/html;
> > charset="iso-8859-1"
> > Content-Transfer-Encoding: quoted-printable
> >
> > <META HTTP-EQUIV=3D"Content-Type"
CONTENT=3D"text/
> html; =
> > charset=3Diso-8859-1">=0A=
> > =0A=
> > <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0
> Transitional//EN">=0A=
> > <HTML><HEAD>=0A=
> > =0A=
> > <META content=3D"MSHTML 6.00.2900.2769"
> name=3DGENERATOR>=0A=
> > <STYLE></STYLE>=0A=
> > </HEAD>=0A=
> > <BODY style=3D"FONT-SIZE: 10pt; FONT-FAMILY: Arial;
> BACKGROUND-
> > COLOR: =
> > #ffffff" =0A=
> > bgColor=3D#ffffff>=0A=
> > <DIV id=3DidOWAReplyText27712 dir=3Dltr>=0A= <DIV dir=3Dltr><FONT
> > face=3DArial color=3D#000000
> size=3D3>Isn't
> > Scalia =
> > right? I =0A=
> > have long wondered why the power to raise armies, together
> with the =
> > Supremacy =0A=
> > Clause, isn't the end of the case.</FONT></DIV>=0A= <DIV
> > dir=3Dltr><FONT face=3DArial color=3D#000000 = size=3D3></FONT>
> > </DIV></DIV>=0A= <DIV id=3DidSignature67902 dir=3Dltr>=0A=
> > <DIV><FONT face=3DArial color=3D#000000
> size=3D2>Douglas =
> > Laycock</FONT></DIV>=0A=
> > <DIV><FONT face=3DArial size=3D2>University of Texas
Law
> =
> > School</FONT></DIV>=0A=
> > <DIV><FONT face=3DArial size=3D2>727 E. Dean Keeton
> > St.</FONT></DIV>=0A=<DIV><FONT face=3DArial
> size=3D2>Austin, TX
> > 78705</FONT></DIV>=0A=<DIV><FONT face=3DArial
> size=3D2>512-232-
> > 1341</FONT></DIV>=0A=<DIV><FONT face=3DArial
> size=3D2>512-471-6988
> > (fax)</FONT></DIV></DIV>=0A=<DIV dir=3Dltr><BR>=0A= <HR
> > tabIndex=3D-1>=0A= <FONT face=3DTahoma size=3D2><B>From:</B>
> > Dellinger,
> Walter =0A=
> > [WDellinger at OMM.com]<BR><B>Sent:</B> Tue 12/6/2005 5:
59
> =
> > PM<BR><B>To:</B> =0A=
> > Marty Lederman; Sanford Levinson; Douglas Laycock; =
> > DavidEBernstein at aol.com; =0A=
> > conlawprof at lists.ucla.edu<BR><B>Subject:</B> RE: Solomon
> =0A=
> > Amendment<BR></FONT><BR></DIV>=0A=
> > <DIV>=0A=
> > <DIV id=3DidOWAReplyText61057 dir=3Dltr>=0A= <DIV dir=3Dltr><FONT
> > face=3DArial color=3D#000000
> size=3D2>I will
> > weigh =
> > in when I =0A=
> > can. for now, here's is Dahlia -- she links to the HLR brief if =
> > you go to =0A= Slate. =0A= <P>Justice Stephen Breyer cites one of
> > the href=3D"http://www.law.harvard.edu/news/2005/09/
21_brief.pdf"
> =
> > target=3D_blank><FONT =0A=
> > color=3D#0066cc>amicus briefs</FONT> in the case that
> suggests that =
> > the law =0A=
> > schools have not discriminated against military recruiters, but
> > rather = have =0A= adopted an
> > http://www.slate.com/id/2131465/"><FONT =0A=
> > color=3D#0066cc>evenhanded policy from which the military
> seeks an
> > =0A=exemption</FONT>. For a few moments several justices
> are in the =
> > thrall of =0A=
> > the amicus brief, until Scalia reminds Clement that the Constitution
> > = grants =0A= Congress the power "to raise and support armies."
> > Scalia
> wonders
> > why =
> > that isn't =0A=
> > the end of this case.</P></FONT></DIV>=0A= <DIV dir=3Dltr><FONT
> > face=3DArial color=3D#000000 = size=3D2></FONT> </DIV></DIV>=0A=
> > <DIV id=3DidSignature18519 dir=3Dltr>=0A= <DIV><FONT face=3DArial
> > color=3D#000000
> size=3D2><STRONG>Walter =0A=
> > Dellinger</STRONG></FONT></DIV>=0A=
> > <DIV><STRONG><FONT face=3DArial size=3D2>O'Melveny
> & =
> > Myers</FONT></STRONG></DIV>=0A=
> > <DIV><STRONG><FONT face=3DArial size=3D2>1625 Eye
> Street, =
> > NW</FONT></STRONG></DIV>=0A=
> > <DIV><STRONG><FONT face=3DArial
size=3D2>Washington,
> DC =
> > 20006</FONT></STRONG></DIV>=0A=
> > <DIV><STRONG><FONT face=3DArial size=3D2>TEL:
(202)
> =0A=
> > 383-5319</FONT></STRONG></DIV></DIV>=0A=
> > <DIV dir=3Dltr><BR>=0A=
> > <HR tabIndex=3D-1>=0A=
> > <FONT face=3DTahoma size=3D2><B>From:</B> Marty
> Lederman =0A=
> > [marty.lederman at comcast.net]<BR><B>Sent:</B> Tue 06-
> Dec-05 5:36 =0A=
> > PM<BR><B>To:</B> Sanford Levinson; Douglas Laycock; =
> > DavidEBernstein at aol.com; =0A=
> > conlawprof at lists.ucla.edu<BR><B>Subject:</B> Re: Solomon
> =0A=
> > Amendment<BR></FONT><BR></DIV>=0A=
> > <DIV>=0A=
> > <DIV>I think Sandy's broader point is an important one --
> namely,
> > that =
> > the =0A=
> > government has been pitching this, and virtually the entire
press
> > corps =
> > has been =0A=
> > reporting it, as a case in which schools are <EM>discriminating</EM>
> > = against the =0A= military and denying them <EM>equal access</EM>.
> > I think
it's
> =
> > almost =0A=
> > certain the Court will uphold the law; but I think it's a
> salutary =
> > development =0A=
> > that at least some of the Justices seem to understand clearly
> that
> > what =
> > the SA =0A=
> > condition coerces is not equal treatment (as in title VI), but an
=
> > exclusive =0A=
> > pro-military privilege -- an exemption from the rules that bind
> > everyone =0A= else. Put that way, perhaps the public support for
> > the law --
the
> =
> > "Military =0A=
> > Gets an Exemption From the Basic Rules That Apply to
> Everyone Else
> > Act =
> > of 2001" =0A=
> > -- would be a bit more equivocal.</DIV>=0A= <DIV> </DIV>=0A=
> > <DIV>P.S. I should have noted that the very <EM>first</EM>
=
> > challenge to =0A=
> > Clement on the "equal access" question was from Justice
> Scalia,
> > followed =
> > by =0A=
> > Justices O'Connor, Kennedy and Breyer, and then Scalia
again,
> > insisting =
> > that =0A=
> > Clement had had them "off galloping in the wrong direction" by
> > stressing = "same =0A=
> > access": "The statute requires much more than that." Here's
=
> > a link =0A=
> > to the audiotape:</DIV>=0A=
> > <DIV> </DIV>=0A=
> > <DIV>rtsp://video.c-span.org/archive/sc/
> sc120605_rumsfeld.rm</DIV>=0A=
> > <BLOCKQUOTE dir=3Dltr =0A=
> > style=3D"PADDING-RIGHT: 0px; PADDING-LEFT: 5px;
> MARGIN-LEFT: 5px; =
> > BORDER-LEFT: #000000 2px solid; MARGIN-RIGHT:
> 0px">=0A=
> > <DIV style=3D"FONT: 10pt arial">----- Original Message -----
> > </DIV>=0A= <DIV style=3D"BACKGROUND: #e4e4e4;
FONT:
> 10pt
> > arial"><B>From:</B> title=3DSLevinson at law.utexas.edu =
> > href=3D"SLevinson at law.utexas.edu">Sanford =0A= Levinson </DIV>=0A=
> > <DIV style=3D"FONT: 10pt arial"><B>To:</B>
> > title=3DDLaycock at law.utexas.edu =0A=
> > href=3D"DLaycock at law.utexas.edu">Douglas Laycock ;
> > title=3DDavidEBernstein at aol.com =0A=
> >
>
href=3D"DavidEBernstein at aol.com">DavidEBernstein at aol.com ;
> =
> > title=3Dmarty.lederman at comcast.net =0A= =
> >
>
href=3D"marty.lederman at comcast.net">marty.lederman at comc
> ast.net=
> > ; title=3Dconlawprof at lists.ucla.edu =0A=
> > =
> >
href=3D"conlawprof at lists.ucla.edu">conlawprof at lists.ucla.edu
> =
> > </DIV>=0A=
> > <DIV style=3D"FONT: 10pt arial"><B>Sent:</B> Tuesday,
> December
> > 06, =
> > 2005 4:54 =0A=
> > PM</DIV>=0A=
> > <DIV style=3D"FONT: 10pt arial"><B>Subject:</B> RE:
> Solomon =
> > Amendment</DIV>=0A=
> > <DIV><BR></DIV>=0A=
> > <DIV dir=3Dltr align=3Dleft><SPAN class=3D093204921
> -06122005>Doug =
> > concludes his =0A=
> > posting by writing:</SPAN></DIV><BR>=0A= <DIV dir=3Dltr
> > align=3Dleft><SPAN = class=3D531553421-06122005></SPAN> </DIV>=0A=
> > <DIV dir=3Dltr align=3Dleft><SPAN =
> > class=3D531553421-06122005> So I =0A=
> > think the objection to the government's equality argument is
not
> > that =
> > it is =0A=
> > false, but that it assumes the conclusion.</SPAN></
DIV>=0A=
> > <DIV dir=3Dltr align=3Dleft><SPAN =
> > class=3D531553421-06122005></SPAN> </DIV>=0A= <DIV dir=3Dltr
> > align=3Dleft><SPAN = class=3D531553421-06122005></SPAN> </DIV>=0A=
> > <DIV dir=3Dltr align=3Dleft><SPAN class=3D531553421-
> > 06122005><SPAN =0A=
> > class=3D093204921-06122005>But isn't this the thrust of
Peter
> > Westen's =0A=
> > "emptiness" argument, that <EM>all </EM>equality arguments
> assume =
> > their =0A=
> > conclusion (i.e., that one has a right not to be discriminated
> > against = on =0A= grounds of race, religion, gender, etc., as
> > against a widely shared = perception =0A= that it is perfectly all
> > right to discriminate against people on = grounds =0A= of
> > residence, age, attractiveness, etc., etc., etc.)? My
> initial =
> > posting =0A=
> > was that the NYTimes was "misleading," not that it was necessarily
> > =0A= "false." The term "equality" is too capacious to generate
easily
> > =0A= identifiable "true" or "false" arguments (or perhaps I
> should
> > omit =0A=
> > "easily"). </SPAN></SPAN></DIV>=0A= <DIV dir=3Dltr
> > align=3Dleft><SPAN class=3D531553421-
> > 06122005><SPAN =0A=
> > class=3D093204921-06122005></SPAN></SPAN> </
DIV>=0A=
> > <DIV dir=3Dltr align=3Dleft><SPAN class=3D531553421-
> > 06122005><SPAN =0A=
> > =
> > class=3D093204921-
> > 06122005>sandy</SPAN></SPAN></DIV></
BLOCKQUOTE></
> DIV></=DIV></BODY></HTML>=0A=
> >
> > ------_=_NextPart_001_01C5FAD9.D9BAB0A1--
> >
>
>
>
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