If there is one recent court ruling causing major heartburn in conservative circles, it has to be the one handed down in Philadelphia earlier this week on the Solomon Amendment.

They're talking about it about these days in Washington, and the conversation has the edge of anger.

The Solomon Amendment, named after the late Rep. Gerald Solomon, R-N.Y., and enacted by Congress in 1996, punishes institutions of higher education that prevent military recruiting or Reserve Officers Training Corps access on campus.

The punishment comes in denying those institutions grants or contracts from the Defense Department, the Department of Education and other federal agencies.

A panel of the U.S. Court of Appeals for the 3rd Circuit ruled 2-1 Monday that the law violates the free speech rights of colleges that reject military recruiting on campus specifically because of the Defense Department's policy of refusing to let gays and lesbians serve openly in uniform.

In other words, the college policy is a political expression directed at Defense Department policy, and the panel majority said the law unconstitutionally suppressed that expression.

Though the case is not yet fully on the radar screen for the general public, the Defense Department will certainly appeal the ruling to the full 3rd Circuit or to the Supreme Court of the United States, or both, and the decision will enter that pantheon of grievances listed under the category of runaway activist courts.

In other words it will become political fodder for the left and the right.

Emotions are high on either side.

The ruling comes at a time when members of the military are serving in considerable danger in Iraq and Afghanistan, and when respect for service members is high.

On the other hand, faculty members at the law schools and academic legal organizations that make up the coalition that led the challenge -- the Forum for Academic and Institutional Rights, or FAIR -- feel strongly about the issue as well.

The coalition includes New York University, which has lost federal funding for years because of its policy. The school's newspaper, Washington Square News, quotes School of Law Professor Silvia Law, who was an individual plaintiff in the suit, as saying she was thrilled after Monday's appeals court ruling.

We've been fighting this for years, she said. The government has to have a very good reason to trample our First Amendment rights -- and they didn't.

In fact, the Defense Department has told a score of law schools that they would lose federal funding if they did not admit recruiters to campus.

FAIR sued the Pentagon and other government departments in September 2003, attacking the Solomon Amendment through the don't ask, don't tell policy of the military.

A federal judge in New Jersey ruled for the government in November 2003, refusing to issue an injunction against the implementation of the law. The judge reasoned that the Solomon Amendment was a valid exercise of congressional power to spend funds and raise military forces, as authorized by the Constitution, and did not violate the free speech rights of law schools or the other plaintiffs.

The law operates primarily to compel or limit conduct, not speech or expression, the judge said.

The appeals court majority reversed the judge on First Amendment grounds, in part basing its decision on a 2000 Supreme Court decision that upheld the right of private groups to ban gays and lesbians.

In that 2000 case, James Dale lost his position as a scoutmaster when the Boy Scouts of America learned he was an avowed homosexual and gay rights activist.

Dale took his case to the New Jersey courts, where he was eventually reinstated. The New Jersey Supreme Court said the policy of the Boy Scouts of America to exclude homosexuals violated the state's public accommodations law, which bans discrimination based on sexual orientation.

The Supreme Court of the United States in turn reversed the state court.

In Boy Scouts vs. Dale, the high court split along its usual ideological divide, with Chief Justice William Rehnquist leading conservatives and moderate conservatives to form a 5-4 majority. The court's four liberals dissented.

Rehnquist held that applying New Jersey's public accommodations law to force the Boy Scouts to admit a homosexual violates the Boy Scouts' First Amendment right of expressive association.

Government acts unconstitutionally, the chief justice said, when it intrudes into a group's internal affairs by forcing it to accept a member it does not desire.

If the Solomon Amendment case reaches the Supreme Court, it will be interesting to see whether the conservative and liberal justices maintain the positions they held in the Dale case, or whether the two sides switch.

One problem with basing a ruling in the Solomon Amendment case on the Dale precedent, of course, is that the latter deals with a private group, the Boy Scouts, while the former deals with public institutions.

Nevertheless, the Solomon Amendment case is bound to draw even more attention as it approaches the Supreme Court, and is yet another example of why control of the federal judiciary will be one of principal struggles of the second Bush term.

(Please send comments to [email protected].)