The California Supreme Court is considering a measure to prohibit state judges from being members of the Boy Scouts of America because the Boy Scouts discriminate against homosexuals.
This sorry saga began in July, when San Francisco Superior Court judges voted unanimously to bar judges from being Scout members. The vote had no force, however, because only the state Supreme Court can change the Code of Judicial Ethics. Later, the Santa Clara Bar Association climbed aboard, and the Los Angeles Bar asked the California Supreme Court to support the S.F. rule.
The Scout-bashers have one leg to stand on. The judicial code prohibits judges from belonging to groups that practice "invidious discrimination on the basis of race, sex, religion, national origin or sexual orientation." An exemption for "nonprofit youth organizations" clearly was a loophole for the Boy Scouts.
Then again, the First Amendment establishes freedom of religion. That's a loophole, too.
Angela Bradstreet, the past president of the Bar Association of San Francisco, is the mother of the Scout ban. When I asked her last year if she thought a Muslim judge from an anti-homosexual mosque could be impartial with her, a lesbian, she answered, "You have to start somewhere." Translation: Boy Scouts first, religions that aren't politically correct next.
And don't expect an assist from civil libertarians; the local ACLU has no position on the Scout ban.
Some judicial watchers are convinced that the state Supreme Court, led by Chief Justice Ron George, will adopt the ban statewide. "People who are saying that don't know what they're talking about because we don't know what we're going to do," George told me. First, an advisory committee has to weigh in, then the justices will rule, probably within six months. As the Big Bench considers the rule, justices might notice that there is no problem in the first place. We don't know of any rogue S.F. Scout/judges making anti-gay decisions.
(Of course, how would one know if a judge is a Boy Scout member? Maybe Bradstreet and company can push next for a measure requiring them to wear badges to alert those in the courtroom to the Scouts among us.)
Yet with the absence of any problem, Bradstreet justified the ban by arguing that judges must appear impartial. Again, religion pops up. If a Scout can't appear impartial, neither can someone whose religion says homosexuality is a sin. Or a Republican judge with Democratic defendants.
Except judges make impartial rulings every day. As San Francisco Law School Dean Joseph Russoniello noted, the chances of a litigant being injured by a bad Scout judge are "virtually nonexistent." So, he asks, "What's behind this? Is it an attempt to be purists? Or is this an attempt of a political activist group to push their agenda?"
Russoniello fears the day when judges are asked: "Are you now or have you ever been a member of the Boy Scouts of America?" It's like the McCarthy-era loyalty oath that forced teachers to stipulate they weren't communists.
This isn't about impartiality. It's about making sure judges are partial to a political view. It's an attempt to marginalize a youth organization that for the most part does good.
Those who don't like it shouldn't join. Judges who disagree with Scout policies can avoid the organization -- start a rival club, even. But they have no business using the California Supreme Court to isolate their ideological adversaries.