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The last bulwark
The federal courts continue to defend free expression and personal liberty — but a proposed Republican power grab threatens that

THE CRUCIAL ROLE that the federal courts play in protecting our rights of free expression and personal liberty is rarely more evident than it has been this week. In three separate rulings, the courts decided:

• Not to interfere with the right of same-sex couples to marry in Massachusetts, a right guaranteed a year ago by the Massachusetts Supreme Judicial Court in its landmark Goodridge decision.

• To prohibit the MBTA from refusing advertisements submitted by a pro-marijuana advocacy group, even as the Supreme Court was hearing arguments about the constitutionality of a California law that allows marijuana to be used for medicinal purposes.

• To stop the Pentagon from enforcing a law that requires universities and colleges to allow military recruiters on campus — a significant victory for Boston College Law School professor Kent Greenfield, a leader in the fight to overturn the law.

Of these, the least surprising was the Supreme Court’s refusal to hear an appeal of Goodridge. Filed by the Liberty Counsel, a far-right organization based in Florida, the challenge appeared more an attempt at political grandstanding than a serious legal argument. The Massachusetts courts clearly have jurisdiction over our state’s constitution, and the Supreme Court’s routine rejection of the case was a tacit recognition of that. Still, the fact that the civil and human rights of gay and lesbian couples will not be fought out before the highest court in the land represents a welcome break from the culture wars, which have only accelerated since the presidential election. (See "Freedom Watch," This Just In, page 7.)

The MBTA decision, by the US Court of Appeals for the First Circuit, in Boston, was the most intriguing of the three, as it stood in contrast to the very real possibility that the Supreme Court will overturn California’s medicinal-marijuana law. With an assist by the ACLU of Massachusetts, a pro-marijuana group called Change the Climate had fought the MBTA’s refusal to accept three ads it had submitted, even though the T — a governmental, taxpayer-funded agency with an obligation to promote diverse viewpoints — accepts alcohol ads and government-sponsored anti-drug ads (see "MBTA Must Say Yes to Drugs," This Just In, page 7).

In a strong affirmation of the First Amendment, the appeals court’s ruling observed that "the MBTA is in a position to control 40,000 advertising spaces for the dissemination of information to a large segment of the region’s population. It is disquieting, to say the least, that the majority would allow the government to control the content of the information to which the public is exposed through these advertising spaces." Unfortunately, it is also disquieting that the Supreme Court appears ready to ignore its own federalism principles by denying California the legal right to allow its citizens to use marijuana for recognized medical purposes. (Needless to say, this would not be the first time the high court has made a mockery of federalism. Witness its legally insupportable order to stop the Florida recount in 2000, and thus to award the presidency to George W. Bush.)

The military-recruitment decision involves a law called the Solomon Amendment, passed in 1996, which places colleges and universities at risk of losing federal funds if they refuse to allow military recruiters to visit their campuses. The problem is that the armed forces’ "don’t ask, don’t tell" rule, which discriminates against gay men and lesbians, violates the anti-discrimination policies in effect at many institutions of higher learning. Yet because no college or university can afford to reject federal funding, institutions such as Harvard and Yale have had to give in.

"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom," the US Circuit Court of Appeals for the Third Circuit, in Philadelphia, said in its ruling. (Though the Solomon Amendment applies to all colleges and universities, the battle to overturn it was led by law schools.) To be sure, there is an unsettling aspect to this: in academia, in particular, the free expression of ideas should be guaranteed, and officials who would bar military recruiters from their campuses should rethink their position. The military’s discriminatory policies should be the subject of vigorous discussion and debate; simply banning the military from campus violates those ideals. Still, the appeals court properly recognized the Solomon Amendment as an unacceptable form of coercion.

All these decisions underscore how vital it is that George W. Bush be pressured to name judges to the federal courts who are not knee-jerk, overtly ideological right-wingers. The Senate will be dominated by a solid majority of 55 Republicans when it reconvenes next month, so it would be too much to hope that Bush will name judges who are anything other than conservative. But at a minimum, the Democratic minority must insist on what George Washington University Law School professor Jeffrey Rosen has described as "principled conservatives," who defer to precedent and legislative intent, and reject "conservative activists" who seek to undo 70 years of social legislation dating back to the New Deal.

Incredibly, though, there is serious talk in Washington of undermining the only tool the Democrats have to slow down or stop bad judicial appointments: the filibuster, by which the Senate is constrained from voting as long as any one of its members is speaking. A filibuster may be cut off if 60 senators vote to do so; the Republicans will be five votes short. The Republicans have bitterly complained about the filibuster for some time, even though the Democrats have used it sparingly.

The filibuster is part of representative democracy. If voters had wanted the Republicans to control all the levers of power, they presumably wouldn’t have elected a closely divided Senate. When neither party enjoys a strong mandate, politics and common sense dictate that important nominees, such as federal judges, be broadly acceptable to both parties.

Ordinarily, the Senate could change the 60-vote rule only with a two-thirds vote, which the Republicans obviously cannot muster. But the Republican majority is said to be considering what some call the "nuclear option" — allowing Vice-President Dick Cheney, as the presiding officer of the Senate, to rule that filibusters of judicial nominees could be ended with a simple majority vote. This would be a catastrophic breach of democracy; but, sadly, it would be all too typical of Bush’s Republican Party, whose hunger for power and contempt for anyone standing in its way seemingly knows no bounds.

As this week’s judicial decisions demonstrate, the federal courts are the last protectors of liberty — an indispensable bulwark against the tyranny of the majority. Four more years of Bush, combined with a Republican Senate, will put that bulwark to the test. The Democrats must stand firm. This isn’t the time for go-along-to-get-along politics. This is the time to fight.

What do you think? Send an e-mail to letters[a]phx.com.

Issue Date: December 3 - 9, 2004
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