First published December 8, 2004, in the Chicago Free Press.
Two current court cases go far to illuminate the old adage "Be Careful What You Wish For" because, no matter whether it's welcomed by liberals or conservatives, a decision they won yesterday may come back to haunt them today or tomorrow.
A few years ago in a case called Boy Scouts of America v. Dale, the U.S. Supreme Court upheld the right of the Boy Scouts to expel Scout leader James Dale because his homosexuality conflicted with what the Boy Scouts suddenly discovered was their fundamental value of heterosexuality. The court said that organizations may legitimately exclude people whose conduct or beliefs conflicts with the organization's values and its public message.
Many conservatives welcomed the decision because it enabled a popular organization to uphold its values by excluding people (gays and atheists) whom conservatives, too, regarded as immoral.
But then on Nov. 29, the Third Circuit Court of Appeals in Philadelphia ruled in the case of FAIR v. Rumsfeld that the so-called "Solomon amendment," which prohibited colleges and universities from receiving federal funds if they bar military recruiters from campus because of the military's anti-gay policy, violated the schools' First Amendment right to exclude groups they considered discriminatory.
The precedent the court cited was Dale: "Just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout Oath, the law schools (that brought the case) believe that employment discrimination (as by the military) is inconsistent with their commitment to fairness and justice," the court said.
In short, law schools have a right, in the first place, not to associate with discriminatory organizations like the military. But in addition, the court ruled, pressuring the schools to allow such discriminatory groups on campus interferes with the schools' ability to convey the message that discrimination is wrong.
So of course conservatives who had been gleeful about the Dale decision are upset that the precedent Dale established was being used to give other organizations the same freedom from government interference that they wanted for the Boy Scouts.
Then on the same day, the U.S. Supreme Court heard oral argument in the case of Raich v. Ashcroft, involving the right of patients to use marijuana for medical purposes when recommended by their doctor and state law allows the practice. Medical marijuana is not an inherently gay issue, but enough gay men with AIDS find marijuana helpful that it is of gay interest, at least.
This particular case was brought by two women who used medical marijuana, one who grew her own, the other who received it free from friends.
The Ninth Circuit Court in San Francisco held that since the women's activity was not commercial nor did it cross state lines, it was not covered by Congress's constitutional authority to regulate interstate commerce, so federal efforts to prohibit the women's activity were unconstitutional. That decision was welcomed by liberals, who are generally sympathetic with medical marijuana, if not full drug decriminalization.
The women's case was argued before the Supreme Court by distinguished libertarian law professor Randy Barnett of Boston University. Using the same argument that was successful with the Ninth Circuit, Barnett told the court that the prohibition of "activity that is non-economic and wholly intrastate" was not essential to the federal government's regulatory functions.
But according to the New York Times, the justices seemed doubtful about that argument and seemed to accept the federal government's claim that the case was similar to a notorious 1942 case called Wickard v Filburn, which held that under the Commerce Clause the government could regulate the amount of wheat a farmer grew for his own use on his own farm.
As the argument went, all wheat production took place within a "national market" and if the farmer had not grown his own wheat, he would have to buy it from someone else, which would be commercial activity. So by not engaging in commerce, the farmer was engaging in commerce. Judicial sophistry has seldom risen to such heights. George Orwell, call your office.
To be sure, we could say that the Court was gripped by wartime hysteria. And we can recall that the Supreme Court had been thoroughly cowed by President Roosevelt's court packing threats of a few years before. But the Wickard decision was gleefully welcomed by liberals as confirming the right of the New Deal to centrally direct people's economic activity.
But sadly for medical marijuana users, Wickard is still the law. Barnett was probably itching to tell the Court frankly that it should once and for all overrule Wickard, as indeed it should. But Barnett's obligation as the women's advocate was to make the most palatable case to the current mix of justices and that required trying to evade Wickard by distinguishing his case from that one.
If, as likely, the women lose, liberals who once celebrated a ruling that increased government control of people's lives may well rue a decision now used to prohibit activities they sympathize with.
The Supreme Court should affirm both appeals court decisions. Unfortunately, the present Court will probably find ways to reverse both.