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.