47 states, D.C., and the federal judiciary have provisions in their codes of judicial conduct prohibiting judges from being members of organizations that practice invidious or unlawful discrimination. (The 3 states without any such provision are Alabama, Illinois, and Louisiana.) In approximately 28 jurisdictions (27 states and D.C.), sexual orientation is specifically included in the list of grounds for discrimination to which the rule applies. In other words, those jurisdictions have adopted a version of Rule 3.6A of the American Bar Association Model Code of Judicial Conduct:
A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (emphasis added).
Since 1996, California, one of those 28 jurisdictions, has had an exception for non-profit youth organizations to accommodate judges who were members of or active in the Boy Scouts of America, according to the California Supreme Court Advisory Committee on the Code of Judicial Ethics. In January 2015, the California Supreme Court eliminated that exception effective January 1, 2016. Thus, after January 1, California judges would no longer have been able to be members of the Boy Scouts – except the organization changed.
In July 2015, Boy Scouts of American amended its adult leadership policy to remove “the national restriction on openly gay adult leaders and employees” although local religious chartered organizations “may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality.”
Thus, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, even after elimination of the youth group exception, “judicial membership in a BSA-sponsored eagle scout alumni organization is not prohibited because, due to recent changes, current Boy Scouts of American policy precludes invidious discrimination on the basis of sexual orientation for non-unit-serving volunteers such as the eagle scout alumni members.” California Oral Advice Summary 2015-13.
Similarly, as a result of that recent change in Boy Scout policy, the Connecticut Committee on Judicial Ethics recently advised that a judicial official may participate in the Boy Scouts by teaching ethics courses as a regional or high level volunteer (Connecticut Informal Advisory Opinion 2014-15A) and by serving as a board member of a regional council (Connecticut Informal Advisory Opinion 2014-15B). Prior to the policy change, the Connecticut committee had issued an advisory opinion stating that a judicial officer may not hold adult volunteer leadership positions with the Boy Scouts that gay persons are barred from holding. Connecticut Informal Advisory Opinion 2014-1.
Both the California and Connecticut codes, like the model code, contain exceptions for religious organizations, which, even after the Boy Scouts policy change, can still discriminate based on sexual orientation as a matter of religious belief. Thus, the California committee said that a judge may be a scoutmaster for his church-sponsored Boy Scouts troop if he is satisfied that the troop does not exclude members based on sexual orientation or is dedicated to the preservation of religious values of legitimate common interest to the troop members. California Oral Advice Summary 2015-14. The Connecticut committee advised that a judge may, as the lawful exercise of his religious freedom, be a member of a Catholic archdiocese committee on Scouting. Connecticut Informal Advisory Opinion 2014-15B.
These developments will be one of the topics discussed in the free webinar on the “Top Judicial Ethics Stories of 2015” presented on Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time by the National Center for State Courts Center for Judicial Ethics. The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions. Speakers: Colin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts. The webinar is free, but you must sign up ahead of time. Click this link to sign up: https://attendee.gotowebinar.com/register/1087418470610271489.