In recent opinions, 2 judicial ethics advisory committees responded to inquiries from judges about a resolution that would prohibit a judicial association from holding conferences in states that repeal protections for lesbian, gay, bisexual, transgender, or queer individuals or that enact discriminatory LGBTQ laws.
A judge who is a longtime member of the National Association of Women Judges asked the Florida Judicial Ethics Advisory Committee whether they could participate in NAWJ’s deliberations on a “Resolution Regarding Future NAWJ Conferences in Jurisdictions Where LGBTQ Protections Are Repealed or Where Discriminatory LGBTQ Laws are Enacted.” Florida Advisory Opinion 2021-11. The resolution will “be deliberated and potentially adopted by the membership of NAWJ at an upcoming general membership meeting, conference, or vote.” (According to the association’s website, the 2021 NAWJ annual meeting will be October 6-9, 2021, in Nashville, Tennessee.)
The resolution denounces laws that “void or repeal state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression” and laws that authorize, mandate, or condone that discrimination, including laws that create exemptions from anti-discrimination laws to permit discrimination on that basis. If the resolution passes, NAWJ may not select “‘any future site for an annual or midyear meeting without first taking into careful consideration’ whether the site is located in a jurisdiction that has enacted the aforementioned laws.” The resolution lists 12 states that have enacted the kind of measures at issue: Alabama, Idaho, Iowa, Kansas, Kentucky, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas. The inquiring judge noted that Florida would likely be added to the list soon.
The committee noted that NAWJ is clearly an organization “devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.” The opinion stated that “such associations do important work to help advance the rule of law, public confidence in the judicial system, and judicial engagement with the communities judges serve,” but noted that, at times, “these same groups may assume political positions or advocate for substantive changes in the law.”
The committee stated that the proposed resolution was plainly “a political statement on a current political issue” and that its “directive to ‘first tak[e] into careful consideration’ whether to schedule future conferences at any of the purportedly offending states appears to be a call for a boycott, which is a widely recognized method of expressing a political view or effectuating a political change.” However, the committee concluded that no ethics rule prohibits judges “from discuss[ing] and debat[ing] the proposed resolution within the confines of NAWJ’s membership. Because the inquiring judge assures us that the deliberations and discussion on the resolution’s vote will remain within NAWJ and not be disseminated to the public, the judge is free to voice the judge’s views and opinions among NAWJ’s membership.”
Similarly, the New York Advisory Committee on Judicial Ethics stated that a judge who belongs to a national judicial association may participate in a vote on a resolution that would prohibit the association from holding conferences in jurisdictions that repeal protections for LGBTQ individuals or enact discriminatory LGBTQ laws. New York Advisory Opinion 2021-81. (The New York opinion does not identify the specific judges’ association that was the subject of the inquiry.)
The committee noted that its previous opinions on diversity issues had advised that a judge may:
- “Participate in a job fair to encourage members of the LGBTQ community to pursue careers as court officers and promote diversity in the court system” (New York Advisory Opinion 2009-151);
- “Join with officers of an ethnic bar association to meet with a district attorney-elect’s transition team to discuss increasing diversity at the district attorney’s office, provided there is no impermissible political activity and the judge does not recommend specific individuals be hired” (New York Advisory Opinion 2017-179);
- “Promote diversity by encouraging litigators to provide knowledgeable junior colleagues significant speaking or leadership roles in the courtroom” (New York Advisory Opinion 2018-36);
- “Meet with law school deans and various executive and legislative branch officials to express a bar association’s concern about the downward trend of minority representation and to advocate for increased diversity in the legal profession” (New York Advisory Opinion 2007-170);
- “Establish a judicial mentoring program to help promote diversity in the judiciary” (New York Advisory Opinion 2016-151); and
- “‘Promote diversity by encouraging individuals from particular backgrounds to enter the legal profession’” (New York Advisory Opinion 2017-12).
The New York committee concluded that, “to the extent the proposed resolution can be seen as political or quasi-political, . . . it relates to the improvement of the law, the legal system and the administration of justice . . . , as it attempts to reduce or eliminate bias based on an individual’s sexual orientation, gender identity, or gender expression, consistent with a judge’s obligations under the Rules . . . . [V]oting on this issue will not create an appearance of impropriety or cast reasonable doubt on the judge’s ability to perform judicial duties impartially.”
For the same reason, the New York committee also advised that judges can continue to belong to the judicial association if it adopts the resolution and will not have to resign their membership.
In contrast, the Florida committee stated that passage of the resolution “could potentially pose issues for a member judge,” depending on the final wording of the resolution and the publicity about it. The committee emphasized that “maintaining the appearance of impartiality is a paramount concern when we examine these membership inquiries” and that “‘the changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.’”
The committee recognized that NAWJ “is obviously not a political organization,” but also stated that “unlike civic groups, bar associations, and other law-related groups, when NAWJ publishes a statement, anyone who hears or reads it will associate the statement with a group of judges.” It explained:
We would have to believe that NAWJ’s statements about legislation on political topics would likely enjoy a special platform of public consideration. The inquiring judge would have to carefully monitor the extent to which NAWJ’s resolution, should it pass, becomes a feature of public discussion or awareness, and whether the judge’s membership could be construed as evidence of partiality on topics to which that resolution pertains.
The Florida committee stated, if the “laws that are the subject of the proposed resolution were ever challenged in a court proceeding, any judge who is a member of a judicial group that has actively advocated against such laws would seem to be in a position where the State may legitimately question the appearance of that judge’s impartiality,” requiring the judge to consider whether their “impartiality might reasonably be questioned.”
The Florida committee acknowledged the New York opinion but stated that the other committee’s approval of continued membership rested on the “tacit assumptions that: (a) the laws in question (whatever their content) are pejorative and discriminatory in their operation and intent; and that, therefore; (b) advocating against such laws would necessarily constitute an improvement in the law or legal system.” The Florida committee opined:
Framing NAWJ’s potential advocacy in that manner seems a tad stilted and, we fear, could lead an advisory committee such as ours into political waters on political questions (where laws with which the committee may happen to disagree are deemed “ethical” to advocate against, while other laws with which the committee agrees become “unethical” for a judicial officer to publicize any disagreement with).
At its annual business meeting, the National Association of Women Judges passed a “Resolution in Support of our LGBTQ members” that states:
RESOLVED, That the National Association of Women Judges will not sponsor or hold any mid-year or annual meetings or conferences in states that have voided or repealed state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or have enacted laws that authorize or mandate discrimination on the basis of sexual orientation, gender identity or gender expression.
There is a list of 18 states that currently meet those criteria attached to the resolution, and the resolution directs that the list “be updated as necessary” and “conform to the lists maintained by those states which track the enactment of such legislation, including, but not limited to, the State of California Attorney General’s office.”