The issue starts with the bogus argument, advanced by former President of the Bar Association of San Francisco Angela Bradstreet, that judges shouldn't be Boy Scouts because they may not appear to be impartial in cases involving homosexuals. It's a smarmy guilt-by-association argument: The Scouts bar gay Scout leaders, so Scout/judges are suspect -- even if Bradstreet couldn't name a single instance in which a city Scout/judge misbehaved when we talked last year.
That's when San Francisco Superior Court judges, to their undying shame, unanimously voted to bar Scout judges. Other local bars followed suit. The local rules, however, had no legal force, so the anti-Scouts asked the California Supreme Court to bar Scouts from the bench statewide.
Last month, Chief Justice Ron George released what has been touted as a compromise measure: Judges can be Scouts, but they have to disclose their membership or recuse themselves in cases "in some circumstances" -- that is, cases involving sexual orientation.
Before I beat up on the decision, let me give George and the justices who voted unanimously for the compromise their due. They must recognize the Code of Judicial Ethics, which 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." The code then exempts "membership in a nonprofit youth organization" -- a loophole designed to shield the Boy Scouts.
There was, however, good reason to shield the Boy Scouts. The Boy Scouts are prohibited by law from discriminating in hiring, but the U.S. Constitution's protection of freedom of association allows the group to exclude homosexuals as members -- whether the Scouts want to keep sexual tension out of troop activities, or whether the group wrongly believes homosexuality is immoral. (For the record, I disagree with the Scouts.)
The Constitution also protects religions -- many of which discriminate based on gender. There is a religious angle in the Scout case, as many adults participate in scouting through their churches, mosques or temples.
That's why the so-called compromise is a dangerous cave-in. It allows a group of liberal lawyers to isolate judges who don't toe the gay-advocacy line.
Now, once a judge says he's a Scout, he knows his every move can be challenged. Someday, if a Scout/judge can't be trusted to appear impartial, then devout Muslim and Catholic judges won't be trusted, either.