Brian and Garrett Fahy

There is no public office in California that is off limits on the basis of holding views consistent with the BSA. For instance, if a BSA member could become governor or secretary of state, then why not serve as a judge? But this proposed change is not about the BSA; it’s about mandating compliance with a specific viewpoint on sexuality through the threat of employment discrimination.

Further, what of the many Jewish, Mormon, Christian, Catholic, and other religious judges who happen to agree with the BSA? Will they be disrobed and publicly excoriated for holding to a belief that within the course of just a few years has become politically verboten? Will they be branded as invidious bigots? It’s hard to see how that day is not coming, when it appears there is no room in the judiciary for a difference of perspective on the issue of sexual orientation, an issue rarely raised in civil proceedings.

Taken further, this may be the first step on the road to disqualifying attorneys, and perhaps others who make the law or enforce the rule of law from public service on the basis of their views regarding sexual orientation.

Moreover, the dearth of authority upon which the Council pronounces that a difference of opinion on sexual orientation constitutes invidious discrimination should serve as a warning to all. If such a determination is to be made, it should be made by the people, from whom all governmental sovereignty and legitimacy originates. Most alarmingly, the people, whom the judiciary is meant to serve and protect, have no recourse if the proposed change is made.

The purported reason for the foolish change, “confidence in the judiciary,” is hardly increased if someone who agrees with the BSA knows that a judge currently serving is removed because he or she is a member of BSA. Citizens and litigants will have no confidence that the system will give them a fair shake.

The hypothetical scenarios this situation suggests are not hard to imagine. Envision a religious plaintiff suing for religious discrimination or harassment because, on the basis of her religious views, she dared to speak out against gay marriage. That plaintiff, if she happens to hold views consistent with the BSA, might reasonably feel that the court views her as a benighted bigot because the California judiciary has pronounced such views tantamount to invidious discrimination. The proposed change would thus diminish the public's confidence in an impartial judiciary.

Moreover, it is ironic that a right to publicly disagree on the issue of sexual orientation is a protected free speech right under the federal and state constitutions, but this proposed change would effectively carve out a huge free speech exception for judges, and serve as a warning to others in public office. It is understood that public officials’ free speech rights are somewhat curtailed, but this proposed change goes too far by impugning the fitness of otherwise qualified judges on the basis of nothing more than a disagreement on the issue of sexual orientation.

If such disagreement is a bridge too far for the California judiciary, the Judicial Council will effectively sanction sexual orientation-based partiality as a condition of judicial service. Henceforth, all religious persons, or nonreligious persons who agree with the BSA on sexual orientation, need not apply to be judges in California.

The implications of the rule show its stupidity. If the proposed change is enacted, conservative Catholics like Supreme Court Justices John Roberts, Antonin Scalia and Samuel Alito, assuming they held views consistent with the BSA, would be unfit to be judges in California. How patently ridiculous is a rule that would disqualify an otherwise qualified judge on the grounds that he or she finds himself on the wrong side of the political thought police.

Yet, that may be the new reality in California. If this effort is successful, don’t be surprised if this approach is replicated in other states where traditional marriage is under legal assault. The gay rights “mafia” is on the attack. The open question is whether anyone is willing to fight back.

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.