Discriminatory organizations

In a review of codes of judicial conduct prompted by a recent inquiry, I discovered that 48 states, the District of Columbia, and the federal judiciary have adopted provisions in their codes addressing judicial membership in discriminatory organizations. (The exceptions are Alabama and Illinois.) The 1990 American Bar Association Model Code of Judicial Conduct provided in Canon 2C: “A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin,” moving the reference to the text from a comment (where it had been added in 1980) and changing the provision from hortatory (“it is inappropriate”) to mandatory (“shall not”). In the 2007 revisions to the model code, gender, ethnicity, and sexual orientation were added to the list of categories, now in Rule 3.6.

Eight states do not list categories of prohibited discrimination but prohibit membership in organizations that practice invidious or unlawful discrimination or have a rule with very different language and structure. The provisions in the 42 other states are close or identical to the 1990 or 2007 model code versions.

Of the jurisdictions that have lists, all 42 include race, sex and/or gender, religion, and national origin. In addition, 26 include sexual orientation, 23 include ethnicity, seven include disability, four include age, four include marital status, two include socioeconomic status, two include color, and one includes creed. New Mexico has the most extensive list, including all categories that are on other lists (except creed) and several unique to its provision: ancestry, gender identity, spousal affiliation, political affiliation, and serious medical condition. Washington adds “other classification protected by law,” and D.C. adds “any discriminatory practice prohibited by the law of the District of Columbia.”

Most jurisdictions also have a caveat, in text or a comment, similar if not identical to the statement that “a judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule,” in comment 4 of the 2007 model.


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