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Boy Scouts
Fairness required on and off bench

Jeff Bleich


In this state, judges are entrusted with the ultimate power over people's lives. They can imprison people, sentence them to death, institutionalize them, take away their children, impound their property, declare them incompetent, and hold them in contempt. This power depends upon public confidence that our judges are fair and impartial. Judges know this when they take on the job of judging.

California ethical rules require judges to treat all people appearing in their courtroom equally, regardless of many factors, including sexual orientation. Judges also must act — both on and off the bench — in a manner that assures us all that our case will be decided only on its merits, and not based on any prejudice.

Every judge who takes the bench understands that he or she may not thereafter belong to an organization that discriminates on the basis of race or gender or sexual orientation or various other factors, and judges not infrequently must resign from organizations in order to take the bench, such as all-male clubs, or country clubs that exclude people on the basis of race or religion.

Because of the importance of eliminating the appearance of bias, the judges of the San Francisco Superior Court last year clarified that the duty not to cast doubt on their impartiality towards gays and lesbians required that no judge of that court may remain active in a social club that declares gays or lesbians to be "unclean" and "not morally straight." This applies to all social groups, including the Boy Scouts.

Other courts are now considering passing similar resolutions. And last December, the California Supreme Court announced that it will consider whether existing ethical rules make this point sufficiently clear to all California judges, and if not, whether the state's ethical canons need to be changed.

The ethical norms barring discrimination against gay and lesbian lawyers and parties are not new. For nearly a decade, the state's ethics rules have provided that judges should not participate in organizations that discriminate against gays and lesbians, and should not engage in any other social activities off the bench that would call into question their impartiality towards gays and lesbians. California Code of Judicial Ethics in Canon 2C provides that no judge shall hold membership "in any organization that practices invidious discrimination on the basis of . . . sexual orientation."

As the Advisory Committee Commentary notes, membership by a judge in such an organization "gives rise to a perception that the judge's impartiality is impaired." While Canon 2C creates an exception for membership in "a nonprofit youth organization," it does so only to the extent that such membership does not "cast reasonable doubt on the judge's capacity to act impartially."

Under these rules, it should be obvious that a judge may not participate in a social organization that holds as a core value that gays or lesbians are unclean, morally crooked and unsuited for any position of responsibility, because those sorts of views would naturally cast doubt on the judge's capacity to act impartially.

The reason that this straightforward application of a straightforward rule is disturbing to some is that many people believe in scouting, and want judges to be able to participate in the Scouts.

I sympathize with this. I was a Boy Scout; my father-in-law is an Eagle Scout; and both of my sons are Scouts in a council that has disavowed the national policy. So, personally, I'd like to see the Boy Scouts be able to enlist the help of the best people it can find, including this state's judges. But the decision to exclude judges from participating is ultimately up to the Boy Scouts. The Boy Scouts have, since at least 1999, taken a public position that can't be reconciled with the judicial duty of impartiality.

In 1999, the Scouts' leadership announced that one of its core purposes is to discriminate against and exclude gay boys, teenagers and adult troop members solely on the basis of their sexual orientation. The Scouts explained in filings to the United States Supreme Court that it believes gay youth and adults are not "morally straight" and are not "clean."

Since the national leadership of BSA announced this message, some Boy Scout councils and troops around the country have disavowed the policy of BSA's national leadership. However, the message of councils that continue to subscribe to the national policy is unmistakable: these councils believe gays and lesbians are morally unfit, unclean and unqualified for leadership roles solely by virtue of their sexual orientation.

This has forced some organizations, such as the United Way and the Los Angeles Police Department to sever their ties with the Scouts. Unfortunately, it also requires that the Scouts forfeit the services of the state's judges.

There should be nothing controversial about judges honoring their sworn promise to treat all people — gay, lesbian, straight — in the same manner and to make sacrifices in their personal lives to assure those appearing in our courts that they will get a fair shake. For us to place our fates in the hands of judges, we really can expect no less.

Jeff Bleich is president of the Bar Association of San Francisco and a partner in Munger, Tolles & Olson LLP.

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