I find it funny that the court used the Supreme Court argument which allowed Boy Scouts to bar gay troop leaders - talk about taking conservative ideology and turning it on its end!
Court halts penalty for barring recruiters
Law allows government to withhold funds to colleges
From Terry Frieden
CNN Washington Bureau
Monday, November 29, 2004 Posted: 11:16 PM EST (0416 GMT)
WASHINGTON (CNN) -- A federal appeals court barred the government Monday from blocking funds to colleges and universities that deny access to military recruiters because of the Pentagon's policy banning openly gay men and women.
In a 2-1 ruling, a three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia, Pennsylvania, said a 10-year-old federal law that allows the government to block such funds violates the schools' First Amendment right to prohibit on-campus recruiting in response to the Pentagon policy.
The Justice Department promptly criticized the ruling, but it did not immediately announce plans to appeal.
The case challenging the law known as the Solomon Amendment was brought by more than a dozen law schools but applies to all institutions of higher learning.
The two-judge majority said the law abridged free speech rights under the First Amendment.
"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives," the decision said.
Judge Ruggero John Aldisert issued a sharp dissent.
"We cannot conclude that the mere presence of a uniformed military recruiter permits or compels the inference that a law school's anti-discrimination policy is violated," Aldisert said.
In Washington, the Justice Department agreed and issued a statement saying officials were "examining the opinion and reviewing our options."
"The United States continues to believe the Solomon Amendment is constitutional," the statement said.
"As we argued in our brief, we believe Congress may deny federal funds to universities which discriminate, and may act to protect the men and women of our armed forces in their ability to recruit Americans who wish to join them in serving our country."
The ruling reversed a lower court ruling that said those who challenged the law probably would not succeed in a trial, The Associated Press reported.
It was the first time a court has barred the government from enforcing the law, the AP said.
The majority based its ruling partly on a U.S. Supreme Court decision that allowed the Boy Scouts of America to prohibit gays from being troop leaders or scouts, the AP reported.
The judges argued that if the Boy Scouts could disallow homosexuals based on a core belief that their behavior is illegitimate, then other groups could enforce an opposite restriction if they believed it is wrong to discriminate because of sexual orientation, the AP reported.