The victories were not total. The panel rejected the idea that mandatory membership by itself violates constitutionally protected freedoms of speech and association. In the Texas case, the panel held that compelled bar membership can be seen as constitutional under current law and Supreme Court precedent if the bar association is engaged in funding or lobbying for activities that are germane to the regulation of the legal profession.
For instance, the bar association's lobbying to change the definition of marriage in the Texas Constitution and for the creation of civil unions was not germane, Judge Jerry Smith wrote for the panel. However, other controversial issues could be, he added, citing diversity initiatives conducted by the Texas Bar's Office of Minority Affairs aimed at serving minorities, women and LGBT attorneys and enhancing employment opportunities in the legal profession for those groups.