Brian and Garrett Fahy

In the wake of the imbroglio involving Mozilla CEO Brendan Eich, who was forced out of the company he co-founded after his contribution to the Proposition 8 effort was sufficiently demonized by gay rights agitators, HBO host Bill Maher, no friend of the conservative movement, astutely observed, "I think there is a gay mafia…I think if you cross them, you do get whacked. I really do."

The latest hit is occurring in California as we write. The California Judicial Council, the body that regulates state judges, recently proposed a change to the judicial rules that would bar judges from associating with the Boy Scouts of America (BSA), on account of its views on sexual orientation. If the proposal passes, every state court judge in California that supports the BSA will have to choose between his robe and his beliefs.

While we have no vested interest in the BSA – we were not Scouts and have no affiliation with the organization – as attorneys we have a vested interest in free speech and association, regardless of viewpoint. Moreover, this proposed change is unneeded, unwise, and legally indefensible.

There has not been a single reported case where injustice was wrought at the hands of a judge who also happened to be a member of the BSA on the basis of views consistent with the BSA. No such cases were cited by those advocating for the rule change. Moreover, the judge's oath of impartiality and promise to uphold the state's constitution ensures adherence to the rule of law. Apparently, these assurances aren’t good enough for the new thought police, who are attempting to disqualify from public office those who disagree with their views.

Expectedly, only the San Francisco and Santa Clara bar associations, located in the state’s most liberal counties, have pushed for the change. Yet due to their grievance mongering, judges of differing viewpoints from across the state could be subject to a rule demanded by only two county bar associations.

Absent any real need, or any request for such a change from the judges across the state, it is clear this proposed change has no logical explanation aside from political pressure. It will be a sad day when California pronounces that, on the contrived basis of a perceived increase in "public confidence" in the judiciary, judges who have a difference of opinion regarding sexual orientation are categorically unfit for office.

If this proposed rule passes, California will have unnecessarily and hastily taken sides in a political debate that still rages and drawn a false equivalence between a belief in the Judeo-Christian view of sexuality, which the BSA holds, and impermissible discrimination. This is unwise and leads to absurd results.


Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at BGTownhall@gmail.com.