Solemn Solomon Prediction

As just about everyone in the law school world knows by now, the Supreme Court granted cert in Rumsfeld v. Forum for Academic and Institutional Rights, the case arguing for the constitutionality of the Solomon Amendment. BuzWords is asking for predictions, and Prof. Yin and Prof. Kerr oblige, predicting a solid reversal.

Much as I'd like to agree with them, I predict that the court upholds the Third Circuit's opinion. I think the reasoning behind the case is stretched and tenuous, but I thought that about Lawrence, and I also don't believe we've heard the last from Justice Kennedy. I wouldn't even be surprised to see Romer work its way in here.

My reading of the tea-leaves? Five-four decision, Kennedy writing the opinion. Expect a broad reading of the facts, a broader reading of the law, and a Scalia dissent.


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Are you in First Amendment yet? I wanna hear about your encounters with our dear (not ironic) Prof. Monaghan. I think Dale v. Boy Scouts is more apposite than Lawrence. Or Dole v. South Dakota. I'm not super familiar with the contours of "unconstitutional conditions," but I'm vaguely aware that it requires an independent constitutional limitation (no restriction on speech, etc.).
TtP: As legal precedent, Dale v. Boy Scouts is more apposite. However, I expect a Lawrence-style decision: one that makes history up out of whole cloth and stretches existing legal precedent to reach the "right" substantive position. A precedent of style, if you will.
Aha. I have a somewhat grand theory about that, that Lawrence was only made necessary by the hole left by Bowers, but that both were correctly decided---Bowers because the Court simply couldn't go on expanding fundamental liberties, and Lawrence because the different treatment had become unsupportable (real word?) after homosexuality was mainstreamed. You simply can't say the right to privacy encompasses the right to abort a baby---next to murder, in the eyes of many---but not to commit sodomy unless you have a very dim view of sodomy. And while that may have been a tenable judgment in 1984, no longer. So my own view is that Lawrence was an oddity a long time comin'. But it's also kind of harmless: as a confrontational NYU student recently expressed inartfully, there is simply no interest in banning consensual sex acts; no one really is hurt if the state cannot criminalize ... well, I'm not going to say it out loud. But once you leave the area of private sexual conduct, the presumption that any judicial error is harmless is less obvious. And when deciding what the government may do, especially as relates to military affairs, I simply find it unlikely that the Court will engage in the kind of literary judging, the sort of jurisprudence through telling stories, that they feel (rightly) entitled to use when talking about fundamental rights. Just sayin'.

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