In the decade-and-a-half since the infamous decision in Bowers v. Hardwick, the Supreme Court again ruled against gays in two major cases. The first of these was Hurley, in which Irish-American gays sought the right to march alongside other Irish-Americans in the St. Patrick's Day Parade in Boston. And more recently, in Dale, in which a gay scoutmaster fought to retain his position in the Boy Scouts of America. In both those cases, gays lost, the Court ruling in favor of an association's right to discriminate.
These earlier decisions are suspect, as Madhavi Sunder has powerfully demonstrated in two Stanford Law Review pieces, an article called Cultural Dissent (2001), and her student note entitled "Authorship and Autonomy: The Intellectual Propertization of Free Speech in Hurley" (1996).
But whatever the intellectual basis for the earlier decisions, it does seem a delicious irony that last week those decisions were deployed in favor of gay rights, now permitting universities to refuse any employers who discriminated against gays, including the U.S. military. The case is FAIR v. Rumsfeld, decided last week by the Third Circuit Court of Appeals.
Thanks to all those who argued the case, including Bill Hohengarten and Walter Dellinger, whom I'm fortunate enough to consider friends.