Freedom of Association and the Right of Exclusion: The Rights Before All Others, Part 1
What follows is a 2005 exchange between Justice Stephen Breyer of the Supreme Court and Joshua Rosenkranz, an attorney arguing for the unconstitutionality of a law that denied federal funding to law schools that barred military recruiters from campus.[1]
Justice Breyer: — So, in fact, to be clear, you also think schools that are angry at the military because they’re too favorable to gays in the military, they have the same right.
Mr. Rosenkranz: Absolutely, Your–
Justice Breyer: Okay.
Mr. Rosenkranz: — Honor, because–
Justice Breyer: And also the same right Bob Jones University, because they disapprove of social mixing of the races?
Mr. Rosenkranz: — If… to answer the first hypothetical first, if that’s a matter of conscience, absolutely–
Justice Breyer: All right, so–
Mr. Rosenkranz: — if we’re talking–
Justice Breyer: — so, what… and there are a lot of people in the country, they may… there’s few, anyway… may not believe in either affirmative action, they may not believe in… they may not believe in diversity, they may not… they may even believe in racial segregation, for all I know.
I hope there are not too many… I would like an answer to my question, because I’m thinking, as you correctly say, if you have that right, so do all the worst segregationists you can imagine, et cetera…
Rosenkranz lost his case. His client, the law schools, opposed military recruiters on campus because of the military’s exclusion of gays. In other words, they wanted to exclude the excluders. The justices unanimously rejected the argument on grounds that if the law schools accepted federal money, they also had to accept Congressionally-set conditions – which were, in this case, that they had to allow military recruiters on campus (aka the Solomon Amendment). Read more






