Editor’s Note: This article is the second in a two-part series discussing judicial membership in the Boy Scouts of America. Part One may be found here.
After the Supreme Court of California’s Advisory Committee of the Code of Judicial Ethics proposed an amendment to the California Code of Judicial Ethics which would prohibit California judges from participating in the Boy Scouts of America, the issue of whether other states would follow suit has come to light. The Advisory Committee is attempting to amend the Judicial Code of Ethics in order to prevent judges from participating in Boy Scouts, due to the Scouts policy of prohibiting homosexuals from holding leadership positions.
Arizona’s Canon 3.6 includes sexual orientation in the list of prohibited discriminatory practices that organizations may not participate in if judges are to be members.
Like California, some states have specifically addressed judicial membership in organizations that bar homosexuals from joining. In 2000 the Arizona Supreme Court Judicial Ethics Advisory Committee found that a Judge may ethically participate in Boy Scouts despite the fact that the Scouts forbid membership based on sexual orientation. This opinion came just after the Supreme Court’s decision in Boy Scouts of America v. Dale, which allowed the Boy Scouts to limit membership and leadership to non-homosexuals. This decision was based on the 2000 Arizona code of Judicial Conduct, which was amended in 2009. The 2000 code generally prohibited the appearance of impropriety. It also included a prohibition from manifesting bias or prejudice based on sexual orientation. Yet the 2000 Code did not include sexual orientation in the list of prohibited types of discriminatory activities that an organization could not participate in. Thus, the Committee found that Judges were not prohibited from participating in Scouts.
However, in 2009 the Arizona Code of Judicial Conduct was amended. Presently, Arizona’s Canon 3.6 includes sexual orientation in the list of prohibited discriminatory practices that organizations may not participate in if judges are to be members. Although sexual orientation is now included in the canons, the commentary provides that the test for whether the organization practices invidious discrimination is complex and “cannot be determined from a mere examination of an organization’s current membership roles, but rather […] how the organization selects members, [and] whether the organization stigmatizes excluded persons as inferior and odious,” among other considerations. Thus, although the Arizona Committee has taken steps to protect homosexuals from discrimination, with the detailed test set out in the comments it is hard to determine whether the Scouts will meet that test without another advisory opinion.
The North Carolina Judicial Standards Commission has not yet weighed in on this issue.
Many other states, including North Carolina, have not yet addressed sexual orientation discrimination in this area. Canon 2(C) of the North Carolina Code of Judicial Conduct, which regulates Judge’s extrajudicial activities, provides that “[a] judge should not hold membership in any organization that practices unlawful discrimination on the basis of race, gender, religion or national origin.” This is distinct from the California Canon because sexual orientation is absent from the North Carolina Canon, and the North Carolina Canon prohibits unlawful as opposed from invidious discrimination. Thus, merely based on the North Carolina Canon language, in order for the Scouts to become a prohibited organization they would have to unlawfully discriminate on one of these enumerated categories, which does not include sexual orientation.
There has only been one recent Formal Advisory Opinion regulating what types of organizations a judge in North Carolina may hold membership. Formal Advisory Opinion 2009-06 discussed the issue of whether a judge may “hold a membership in the Charlotte-Mecklenburg Black Political Caucus.” The commission found that a judge may hold membership in the Charlotte-Mecklenburg Black Political Caucus despite the Caucus limiting membership to “African Americans of Black descent.” The Commission found that this organization was established to better the influence and welfare of the African American community in education, economics, politics, and cultural, social and civic welfare. The Commission found that there was no indication that the organization practiced “unlawful discrimination” by arbitrarily excluding certain members with the understanding that the membership was limited to “African Americans of Black descent.” Thus, without an advisory opinion it is hard to predict how the Judicial Standards Commission would come down on the issue, but considering the Canon on its face, it would likely be an uphill battle for gay rights supporters to ban judges’ participation in the Boy Scouts.