Sauces for Goose and Gander

Just a few days after the United States Supreme Court holds in FAIR v. Rumsfeld that the federal government may condition funding of universities on law schools’ willingness to accept military recruiters on campus, the California Supreme Court holds that the city of Berkeley may refuse to provide subsidies to the Boy Scouts and other groups that discriminate against gays or atheists.

The CA Supremes are no dummies; they wait for the US Supremes to rule on whether government may condition spending on whether entities adhere to other laws, and as soon as it comes down from DC that this doesn’t violate these entities’ free speech rights, then the state supreme court follows. This isn’t exactly a profile in judicial courage, but ever since 1986, when a right-wing recall campaign kicked out three justices for their pro-plaintiff rulings in tort cases, the California Supreme Court has pretty much been afraid of its own shadow.

In typical fashion, an amicus brief for the Scouts was filed by the odious Pacific Legal Foundation, which usually is in the business of trying to destroy environmental regulations on the altar of private property rights. Now, it has decided the most important free speech issue it can find is the right to discriminate.

But PLF’s and many other conservative libertarians’ positions come with a deeper corruption. In writing about Fair v. Rumsfeld, many libertarians took the position, “See? This is what you get when you support a big welfare state. You’ve become dependent upon them. If you don’t want government funding decision affecting you, don’t take money from the government.” Many of them triumphantly pointed to Hillsdale College, a right-wing institution that refuses to take federal money, as an example of conservatism’s flinty, tough, self-reliance.

But what happens when their ox is gored? They get one of their very well-funded foundations to cry that the lack of a subsidy from the city of Berkeley is infringing on their free-speech rights. Libertarians are so committed to small government that they cannot go without a subsidy from perhaps the most left-wing city in the country.

We shouldn’t be surprised at this, of course. Many of the most Republican districts in the country essentially live on federal subsidies; the South was pulled out of decades of backwardness with Washington’s money; former Senator Phil Gramm, who could never resist the temptation to lecture the poor on their lack of self-reliance, never held a private sector job in his life. But we should keep pointing it out.

The whole issue is actually fiendishly complex. Our instinct tells us that the government can condition its spending quite freely: if you don’t like the terms, don’t take the money. But if that’s the case, could the government do it with a tax credit, too? Well, sure: the government often spends money through tax credits. But if that’s the case, could the government choose to tax some entities based upon their policies or political positions? No, you say: that would be discrimination. The power to tax is the power to destroy. But as scholars have long pointed out, one can always decide to “spend” through the tax system and tax through the spending system. (A recent example of this scholarship can be found here.).

There is no simple solution to this problem; I’m doubtful if there is one at all. But at the very least, we might decide to avoid the legal obfuscations and see that this is really a problem of politics. Let’s stop the nonsense about free speech rights: the right wants to discriminate against gays, and the left wants to stop discrimination against gays. Tocqueville was right but missed the point: it’s not so much that every American poltiical issue eventually becomes a legal one, but rather that every major American legal issue is essentially a political one.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.