February 5, 2015 (BreakPoint.org) — In late January, the Supreme Court of California ruled that, starting January 21, 2016, judges in that state can no longer be affiliated with the Boy Scouts of America.
I’m not sure what troubles me most about this story: the ruling itself or the lack of attention being paid to it.
California is one of 47 states that bans its judges from belonging to organizations that discriminate against certain groups of people. In more than half of these instances, we are talking about discrimination on the basis of race, religion, national origin, or sex.
In the twenty-two states that prohibit discrimination on the basis of sexual orientation, like California, the issue gets a lot more complicated. In 1996, California’s Supreme Court ruled that judges could not belong to groups that “discriminate” on the basis of sexual orientation, but they carved out three exceptions: the military, religious groups, and youth organizations like the Boy Scouts.
Last year, an advisory panel to the Supreme Court of California issued a report stating that “Because the Boy Scouts of America continues to discriminate on the basis of sexual orientation . . . eliminating the exception and prohibiting judges from being members of or playing a leadership role in the Boy Scouts would enhance public confidence in the impartiality of the judiciary.”
It was this report and its recommendations that the Supreme Court voted to accept in January.
If you’re wondering how prohibiting judges from affiliating with the Boy Scouts “enhances public confidence in the impartiality of the judiciary,” you’re not alone. As Noah Feldman of Harvard Law School recently wrote, while rules prohibiting membership in organizations that discriminate are supposed to “make the judiciary seem fair,” it is “much more likely” that the real “point” is “to express our collective moral disapproval of discriminatory organizations.”
But according to that definition, the Boy Scouts are just such an organization. Ever since the U. S. Supreme Court ruled in its 2000 Dale decision that the Scouts’ right to free association trumped New Jersey’s anti-discrimination law, the Scouts have been under tremendous pressure to change their policies regarding homosexuality.
This time, it’s not only the Boy Scouts’ right to free association that’s under threat, but that of judges as well. And if giving up the right to free association is the price you pay for donning the robes, what other First Amendment right might you be forced to surrender?
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After all, as Feldman noted, the Scouts aren’t the only private organization a judge might belong to that can and has been accused of “discrimination.” To cite but two examples, neither the Catholic Church nor Orthodox Judaism ordains women. And, despite its recent pronouncements on gay rights legislation, the Mormon church is seen as Public Enemy number 1 or 1A by many same-sex marriage supporters.
It’s not that hard to imagine a setting in the not-too-distant future when membership in any of these religious groups will be seen as incompatible with being a judge. This is especially true when you learn that the advisory panel cited “recent developments in the law regarding same-sex relationships.”
While religious groups are still exempt for now, these same “recent developments” have made their First Amendment rights increasingly precarious.
If you think that can’t happen, ask the Boy Scouts.
Reprinted with permission from Break Point.