Saturday, December 21, 2002
WWTD: What Would Trent Do?Given all the talk of segregation lately, an interesting story: the California Supreme Court (which regulates judicial conduct in the state) is deciding whether to forbid judges from joining the Boy Scouts, because of the Boy Scouts' anti-gay policies. This poses a clash of principles. On the one hand, the Boy Scouts have the constitutional right to discriminate. (I should clarify that: if there were a constitutional right to discriminate, then many civil rights laws, such as ones that bar job discrimination, would be unconstitutional. The Boy Scouts' right falls under the First Amendment right of expressive association. That is, if you're associating with other people for the purpose of making a political statement, then your association is protected. The government cannot force the KKK to admit blacks, because that would destroy the entire purpose of the KKK. The reason job discrimination isn't protected in the same way is because employment is considered economic, not a political statement. You're not hiring a janitor to send the message that only people of a certain race can use Windex; you're hiring a janitor to keep your building clean.)
So if the Boy Scouts have a constitutional right to exclude gays, if they're just expressing their views, shouldn't judges have that same right? Well, if we were talking about bankers, or actors, or doctors, or athletes, the answer would be an unqualified yes. If we were talking about politicians, the same -- at least until the voters had their say. But judges are different. A judge, by virtue of his position, is limited in his acceptable behavior by a Code of Judicial Ethics. He must avoid not only impropriety, but the appearance of impropriety, and must not act in a way that casts "reasonable doubt on the judge's capacity to act impartially." So we circumscribe the ways in which a judge can conduct himself. For obvious reasons, a black party or attorney might not feel he could get a fair hearing before a white supremacist judge. But does the same apply to the Boy Scouts and gays? The Scouts do claim to stand, in part, for the message that homosexuality is unclean. But that's a minor part of their message, and I assume most members of the Scouts don't spend a lot of time pondering the issue. Should a judge not be allowed to be associated with an organization that's primarily about camping (I guess)? How closely do a judge's associations need to be scrutinized?
[Full disclosure: I spent a couple of years in the Cub Scouts. Other than the Pinewood Derby races, I didn't think much of it.]
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