RICHARD THOMPSON FORD has a cogent piece in Slate about Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), the case that will decide whether colleges and universities can be denied federal funds if they bar the military from recruiting on campus as an expression of opposition to the military's "don't ask, don't tell" policy regarding openly gay members. The Supreme Court agreed on Monday, May 2, to hear the case in its next session, which begins in October.

The great irony of this story is that the central argument FAIR makes in Rumsveld v. Forum for Academic and Institutional Rights -- that punishing institutions of higher learning (by withholding funding) for protesting the military's discrimination against gays and lesbians (by barring military recruiters) is a violation of the colleges and universities' First Amendment rights -- only works because of a prior Supreme Court decision that upheld the Boy Scouts of America's right to discriminate against gays and lesbians on First Amendment grounds. Thus, a Supreme Court ruling that protected a form of discrimination dear to the hearts of neoconservatives is very likely to become the precedent that forces the Supreme Court to protect a form of discrimination dear to the hearts of liberals. Or, as Ford puts it:

[T]he Solomon Amendment, a law that protects discrimination on the basis of sexual orientation, may be undone by Dale, an opinion that protects discrimination on the basis of sexual orientation.

And Dale did this, says Ford, by finding that the First Amendment protected the right to discriminate -- a right that no court had ever recognized before.

As Justice John Paul Stevens complained in his dissent in the case, before Dale the court had never held that an anti-discrimination law violated the First Amendment. And for good reason. If requiring the scouts to accept gay members violates their First Amendment right to express disapproval of homosexuality, doesn't making a lunch counter serve blacks infringe on its owners' First Amendment right to express disapproval of racial integration?

To put it succinctly, the Dale court legislated from the bench. And therein lies the other rich irony: A case of judicial activism by conservative justices created a legitimate precedent in case law that will require conservative justices in Rumsfeld v. FAIR to strike down the Solomon Amendment (which will mean, of course, that universities can bar military recruiters without losing federal funds) if they want to be seen as strict constructionists.

It's things like this that convince me God is real. And she is laughing in delight.