At first blush, the San Francisco Superior Court judges'
unanimous vote last month to require judges to swear not to associate with
the Boy Scouts seems absurdly heavy-handed. It is nasty, but it's not as
outlandish as you might think.
For one thing, Angela Bradstreet, the president of the Bar
Association of San Francisco, who pushed the measure, admits the resolution
is not enforceable. (Only the California Supreme Court can change the Code
of Judicial Ethics, the rules that dictate judges' conduct.)
Bradstreet also agrees that the San Francisco judges' measure
singled out the Boy Scouts (because the group refuses to admit gays and
lesbians). But she rightly points out that the measure only did so because
the Code of Judicial Ethics had given the Boy Scouts a loophole. The code
says, "A judge shall not hold membership in any organization that practices
invidious discrimination on the basis of race, sex, religion, national
origin or sexual orientation." It then exempts membership in religious
organizations, the military and "a nonprofit youth organization" -- to wit:
Boy Scouts -- in order to "accommodate individual rights of intimate
association and free expression."
So the San Francisco bench's decision is consistent. If a judge
can't join a club that discriminates against gays, why spare the Boy Scouts?
Alas, it is a dangerous consistency.
For one thing, the judges' new policy remedies a non-problem. I
asked Bradstreet if judges associated with the Boy Scouts have behaved badly
in court. Not in San Francisco, she answered. (So you know the new policy is
more political than remedial.)
Bradstreet cited a 2001 Judicial Council of California study
that found that "a significant number" of gays and lesbians who had contact
with state courts "felt or perceived they were being discriminated against."
(The report also found that a majority of homosexual respondents said "they
were treated the same as everyone else.")
Would the aggrieved gays and lesbians feel comfy in courtrooms
presided over by judges who were not Scoutmasters? That's not clear -- but
the judges passed the ban anyway.
One California judge wrote to me, enraged at the suggestion that
a Boy Scout leader/judge couldn't be impartial with homosexual litigants.
Judges have to be impartial when presiding over the trials of repeat
child-molesters and other violent offenders that they and the rest of
society may abhor. Sometimes the law requires that they keep previous
convictions from jurors -- and they do it, because they follow the law.
And if an San Francisco judge wasn't impartial with gays, noted
San Francisco employment attorney Jim Hargarten, that judge should expect to
pay for it. Aggrieved parties can file complaints of misconduct. Also,
voters can boot bad judges off the bench during retention elections.
The justice system is supposed to punish judges who rule based
on prejudice or discriminate illegally. That's behavior, Hargarten noted --
"but that's not telling me what to think."
Bradstreet argued that the issue isn't quite impartiality. "The
whole issue," she explained, "is to avoid the perception that there's not an
even-playing field for every litigant who appears before a judge."
Oh, the perception.
Not the reality.
And Goddess forbid that any litigant should feel uncomfortable
Though, apparently, it's not a problem for a Boy Scout to feel
jumpy, because the San Francisco bench just "86'-ed" them from the bench.
Brad Dacus of the Pacific Justice Institute is convinced that if
the judges pull this off, religion is next.
No way, Bradstreet countered. Women, for example, may not be
able to be Catholic priests, but they can attend church services. There's no
reason to target religion. But when I asked Bradstreet, who is a lesbian,
how she would feel standing before a Muslim judge from an anti-homosexual
mosque, she answered, "You have to start somewhere."
So maybe religion is next.
Boy Scouts first. Catholics later.
Bradstreet added: "Under that argument, we shouldn't have ethics
rules at all. We should just say that judges should be able to join whatever
organizations they want."
What a novel idea, freedom of association. Maybe someone could
write a law about it.