Judges in Boy Scouts Could Face Conflict
Court warns about cases involving gays, who are barred by the group.
Los Angeles Times,
June 19, 2003
By Maura Dolan, Times Staff Writer
California judges who belong to the Boy Scouts of America may have to remove themselves from
cases involving gays under a rule approved Wednesday by the California Supreme Court.
Because the Scouting group bans gays, judges must disclose membership when it has "the potential to give an appearance of partiality," the court said in amending the state's Code of Judicial Ethics.
The court added language to the ethics code suggesting that judges disqualify themselves from cases where
membership in an anti-gay group could be viewed as a conflict.
The court's action, taken in a closed session, pleased lawyer groups that had asked the court to reconsider whether judges should be allowed to belong to the Boy Scouts.
Angela Bradstreet, past president of the San Francisco Bar Assn., said the amendment will force judges to step down in cases involving gay lawyers, gay adoptions and
"If the attorneys are openly gay and the litigants are openly gay, this could be potentially an issue, and the judge under the amendment would have a duty to disclose his membership," Bradstreet said.
The Code of Judicial Ethics prohibits judges from belonging to groups that discriminate against minorities, women and gays, but exempts nonprofit youth
Although several bar associations favored removing the exemption for Boy Scouts, the new requirement is still "a very positive step," Bradstreet said.
Miriam Krinsky, president of the Los Angeles County Bar Assn., described the amendment as "heartening."
The change "will lead to more awareness of judicial membership
in these organizations and more thought by the judges about whether they can remain on cases in light of membership in a discriminatory youth organization," Krinsky said.
A spokesman for the Boy Scouts could not be reached for comment. Anthony Caso, senior vice president of the Pacific Legal Foundation, a conservative legal advocacy group, said he was pleased that the court has not forced
judges to resign from the Boy Scouts.
Bar groups "were trying to prohibit judges from being involved with the Boy Scouts at all," Caso said. "That the court declined to take that step is a very positive sign that judges don't have to withdraw from the community."
The U.S. Supreme Court ruled three years ago that the Boy Scouts is a private organization and cannot be forced
by the government to accept gays.
State court clouds issue on Scouts, gays
San Jose Mercury News
June 22, 2003
By Scott Herhold, Mercury News
Many, many moons ago in Tucson, I was a member of Boy Scout Troop 75, led by the good-hearted and potbellied Marion Pryor. In fact, I was an Eagle Scout. I loved hiking and camping in the mountains that surround the city.
In those days, nobody asked about sexual orientation. Most of us didn't know there was such a thing. What we cared about most was beating Pryor to the top of Tucson Mountain, a feat that let us hurl insults at our sweating scoutmaster.
I mention this to establish my credentials. You see, the California Supreme Court last week issued an interpretation
involving the Scouts and judges that's nonsense.
Here's the situation: For years, judges, like many other good-minded people, have helped out as Boy Scout troop leaders, scoutmasters, etc. They've undoubtedly done much good along the way. (For the record, my 12-year-old son belongs to a San Jose troop in which the parental devotion is consistently astounding.)
But there's one big iceberg here, ready to rip through the hull of the judges' good intentions. As a national organization, the Boy Scouts discriminate. In the group's silliest move, it has interpreted the "morally straight" words of its oath to exclude acknowledged gays.
Legally, the Scouts might be entitled to their idiocy. In June
2000, the U.S. Supreme Court ruled 5-4 that they had a right to exclude openly gay men from their ranks.
But given the way a lot of people feel about this, and given the rules for judicial conduct, judges shouldn't be part of it. Painful as it is, this is one tie to break.
California's judicial ethics code forbids judges from belonging to
groups that discriminate on the basis of race, gender or sexual orientation. But the rules have one exemption, fashioned in 1995, that lets judges be part of "non-profit youth organizations" that discriminate. That loophole is widely considered to be there because of the Scouts.
The issue arose recently because the bar associations in San Francisco and Santa Clara County petitioned the California Supreme
Court to get rid of the exemption - in effect, to tell the judges that they shouldn't be involved with the Scouts.
Last week, the court came down with a timid response. It punted. Rather than barring judges from being Scout leaders, it said a judge should disclose membership to litigants if it's relevant.
Incredibly enough, the reaction to this piece of legerdemain
was generally positive. You would have thought that Augusta National Golf Club had just admitted Martha Burke.
"The effect of this amendment is going to cause judges to take a very close look at their memberships," said Angela Bradstreet, a San Francisco attorney who had petitioned for a change. "I'm willing to bet that a lot of judges will resign their memberships in the Boy Scouts."
Bradstreet might well be right. By evoking the possibility of disclosure, the court may have instilled even more caution in the inherently cautious judiciary.
But the ruling falls way short of justice. No, worse: It fails the fundamental issue of clarity. Instead of painting a clear line that could define a judge's conduct, the court threw a gob of goo against
the wall and asked the judges to interpret it.
The court was saying that a judge could belong to an organization that discriminates as long as it would not cause a reasonable person - that great fiction of the courthouse - to doubt the judge's impartiality.
Think about this. What are we saying to people who count on the impartiality of the courts? Would we let someone on the bench
who belongs to a country club that excludes blacks? No way.
The world is a different place from when Marion Pryor was my scoutmaster. We ask uncomfortable questions we didn't ask then. But in the courts, our first duty is to err on the side of equal rights. Maybe the kids will digest the lesson.
Boy Scouts ban eyed for judges : State justices consider edict over gay stance
San Francisco Chronicle
December 20, 2002
Bob Egelko, Chronicle Staff Writer
The state Supreme Court said Thursday it would consider requests by
lawyers' groups to prohibit judges in California from belonging to the Boy
Scouts because of its refusal to admit gays.
The court, which sets ethical standards for judges, passed a rule in
1995 forbidding membership in organizations that discriminate against
lesbians and gays. The rule, however, exempted "nonprofit youth
organizations," an exception designed for the Boy Scouts. The scouts' right
to exclude homosexuals was upheld in 2000 by the U.S. Supreme Court.
In July, San Francisco's Superior Court judges became the first
judicial body in the state to cut their ties with the Boy Scouts,
unanimously adopting a resolution sponsored by the Bar Association of San
Francisco. Bar associations in Los Angeles and Santa Clara counties have
also called for repeal of the Boy Scout exemption, although judges in those
counties have not renounced all affiliations with the scouts.
The State Bar sidestepped the issue last month, canceling a meeting
with San Francisco Bar president Angela Bradstreet, who wants the ban on Boy
Scout affiliations extended statewide. But state Supreme Court Chief Justice
Ronald George met last week with Bradstreet and took up her concerns with
his colleagues Wednesday at the court's weekly closed-door conference.
"The court had an extensive discussion about this matter and has
decided to take up the matter at a future administrative conference after it
undertakes a further study of the proposals," George said in a statement
Thursday. He did not elaborate on the timing or scope of the study.
Bradstreet, a partner in a San Francisco law firm whose term as local
bar president ended last week, said Thursday that George had made no
commitments, but she was encouraged by their meeting and cautiously
optimistic about action by the court.
"I think the Boy Scouts do a lot of wonderful work," she said. "We
are not prohibiting judges' children from belonging. . . . But it does not
create a level playing field (in court) if a judge is a member of any
organization that invidiously discriminates against anybody."