Bad argument makes strange bedfellows

My colleague Peter Swanson is the proprietor of Swanblog. This past May Peter noted that the Supreme Court had agreed to hear the government’s appeal of the Third Circuit decision holding the Solomon Amendment unconstitutional in a post with a Carnac the Magnicent-sounding title: “Selective standards, Solomon and SALT.” Imagine him pulling the card from the envelope, putting the card against his temple and announcing:

One of the plaintiffs in the Solomon Amendment case is the Society of American Law Teachers (SALT). SALT was formed in 1973 because, among other reasons, the American Association of Law Schools was not liberal enough (!) for some law professors…One of SALT’s recent projects was a friend-of-the-court brief in the Boy Scout case. SALT argued that the New Jersey’s anti-discrimination statute did not infringe on the First Amendment rights of the Boy Scouts. In the Solomon Amendment case, SALT relies on the Boy Scout ruling. And the group’s reasoning, by implication, calls into question other government funding with strings attached, such as Title IX.
SALT’s position is not completely inconsistent, as its brief seeks to distinguish the First Amendment expression of the law schools from that of the Boy Scouts. But the arguments in combination do lead one to scratch one’s head. Consider these excerpts from the SALT Boy Scout brief:

The Boy Scouts are not like the Ku Klux Klan. They are not an organization whose central self-definition requires exclusion of openly gay youth and men….
In this regard, the Boy Scouts are usefully contrasted with the Ku Klux Klan. The latter group is expressly organized around an exclusionary principle of white supremacy. To require the Klan to admit blacks would substantially undermine the Klan’s central expressive purpose. But to their credit, the Boy Scouts, a huge inclusive organization numbering millions of members, are not the Ku Klux Klan….

So the Boy Scouts are not like the KKK? Gee, thanks. But does this mean that law schools are like the KKK?

Yesterday Peter also addressed the “are you now or have you ever been?” issue regarding John Roberts and the Federalist Society: “Federalists, founders and opposing views.”


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