Calif. State Judges Can't Belong to the Boy Scouts Anymore

By Mark Wilson, Esq. on January 27, 2015 | Last updated on March 21, 2019

Ah, the Boy Scouts. They teach you how to use knives, camp in the woods, and make things out of other things. The Boy Scouts have been under fire in recent years, though. Turns out they're a Christian organization that, until 2012, refused to admit openly gay Scouts, and still forbids employing openly gay Scout leaders.

That's enough to make them an organization that practices "invidious discrimination," according to the California Supreme Court, which decided Friday to prohibit state judges from belonging to the Boy Scouts, effective January 21, 2016.

No More Discrimination

Until last week, Canon 2C of the state's Code of Judicial Ethics prevented a judge from belonging to "any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation," with one exception. Judges could belong to a "nonprofit youth organization," clearly a nod to the Boy Scouts and its affiliates, like the Sea Scouts.

Last February, the Advisory Committee on the Code of Judicial Ethics recommended removing this exception. The California Judges Association also endorsed the proposal. There were, however, several judges who didn't like the idea, the Los Angeles Times reported Saturday. Among them was San Joaquin County Superior Court Judge Barbara Kronlund, who said that altering the rules would infringe on her Free Exercise rights.

The change isn't as drastic as it seems, though. In a press release, the Supreme Court noted that the American Bar Association's Model Code of Judicial Conduct already prohibits judges from belonging to discriminatory organizations. The Times pointed out that California's exception for youth organizations put it alone among states that barred judges from belonging to discriminatory groups. (Whether those other states would consider the Boy Scouts to be a discriminatory group, though, is a different question.)

That's What Happens

Back in 2000, the U.S. Supreme Court ruled that the right to freedom of expressive association allowed the Boy Scouts to refuse to admit openly gay Scouts and Scout leaders. Closer to home, that case caused City of Berkeley to stop letting the Sea Scouts berth their boats in the city marina for free, citing a city policy prohibiting discriminatory organizations from getting those perks. The case went all the way to the state supreme court in 2006, when the court ruled that Berkeley's policy didn't violate any of the Sea Scouts' constitutional rights.

Justice Jim Humes, who is both openly gay and a justice on the First District Court of Appeal, said the old Canon 2C exception "incites distrust in judicial impartiality, demeans gay and lesbian judges and is offensive and harmful."

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