Last Tuesday, the Supreme Court heard oral arguments in the case Rumsfeld v. Fair. I have written about this before, but here is a brief synopsis. The Solomon Amendment requires any school receiving federal funding to allow military recruiting on campus. A conglomeration of law schools, FAIR, has objected to this policy on the grounds that it disagrees with the military's anti-gay policy, and forcing the schools to allow military recruiting would be "compelled speech."

SCOTUSblog analyzed the oral arguments and concluded that the Solomon Amendment was probably here to stay. Even the court's more liberal justices joined conservative justices John Roberts and Antonin Scalia in raising an eyebrow at FAIR's opposition to the Solomon Amendment. The other justices "seemed to be troubled by the prospect that a major First Amendment ruling in favor of the law schools would open the way for individuals to resist obeying all kinds of laws -- including federal anti-discrimination laws -- by claiming their refusal to obey was a matter of their beliefs or conscience." Remember: Supreme Court justices must not only consider the impact of a decision on the parties at hand, but also the impact of those decisions on anyone in a similar situation in the future.

We have a situation in which a public organization -- a state-funded university -- is being compelled to do something with which it does not agree. "Compelled speech" is just as heinous a violation of the First Amendment as censorship or anything else the government could do with its power. If the Supreme Court were to rule in favor of the Department of Defense, then it would be saying that compelled speech is okay in the case of state institutions. Or, the court would be saying that it is okay to deny funding to organizations that disagree with a particular government policy or refuse to implement that policy.

Also, the Supreme Court has always viewed money as synonymous with power (cf. McCullouch v. Maryland, in which Chief Justice John Marshall observed that "the power to tax involves the power to destroy," and concluded that since no state body could destroy a federal body, the state of Maryland could not, therefore, levy a tax upon a branch of the Bank of the United States within Maryland), and the withholding of money is synonymous with the withholding of power.

Then again, laws that require states to have a drinking age of 21 are also constitutional. (The federal government withholds highway funds from states with a drinking age of less than 21, thereby creating a de facto national drinking age of 21. A state may disagree with the law, but if it wants its federal highway money, it had better have a drinking age of 21.)