Sunday, February 8, 2015

Blacklisting Boyscouts



California State Supreme Court recently passed a bill prohibiting state judges from being members of the Boy Scouts of America. The Court’s reasoning behind this was that the Boy Scouts discriminate against homosexuals and promote heterosexuality as a norm. In 2000, in a case entitled ‘Boy Scouts of America v. Dale,’ the Supreme Court held that the Boy Scouts of America, a private organization, has the constitutional right to exclude a person from membership when ‘his or her presence affects the group’s ability to advocate public or private viewpoints.’ The BSA does allow homosexuals to be members of the organization, however there are restrictions for Scout leaders and other volunteer positions. The Boy Scouts have a strict religious policy maintaining that ‘no member can grow into the best kind of citizen without recognizing an obligation to God.’ Atheists and agnostics are excluded from the BSA.

California judges must abide by a code of ethics that dictates their professional and personal lives. One section of this code speaks directly to this issue: “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.” The Court argues that prohibiting BSA membership will ‘promote the integrity of the judiciary’ and ‘enhance public confidence’ in the system.

I believe that preventing California State Supreme Court judges from participating in the Boy Scouts of America is a blatant infringement on their constitutional rights of free association, free speech, and the free exercise of religion. California judges should not be prevented from being leaders in the BSA. These judges are permitted to gain membership to organizations such as The National Rifle Association, the Council on American-Islamic relations and even the North American Man/Boy Love Association. Many of these permitted organizations have strong political and social values just as the BSA does.

As we have discussed in class, being a member of an organization does not necessarily mean that all of your values are determined by that organization. For example, just because you are a Catholic does not mean that a juror will disagree with the death penalty. Being a leader in the Boy Scouts does not mean that a judge will be biased against homosexuals in their court.

Additionally, California’s code of conduct contains exceptions for some organizations that discriminate- namely religious ones. For example, Californian judges can be members of the Catholic Church even though it discriminates against women by preventing them from becoming priests. Likewise, Orthodox Jews ban women from becoming rabbis. However, judges in California are permitted to gain membership to these churches and congregations. Despite these discriminatory practices, the state does not believe that membership with these organizations will make judges biased based on gender. Clearly, the ban on organizations that discriminate on the basis of gender has some exceptions.

To me, this almost seems like the state government is preferencing religion over non-religion. To make such blatant exceptions to this discrimination rule shows a partiality to religion. While the Boy Scouts of America have values deeply connected with religion, it is not a religious organization. It doesn’t seem fair to grant exceptions to religious institutions but not to private organizations.

Furthermore, a person’s values do not necessarily change depending on which organizations they are a part of. Judges are expected to be fair and impartial at all times. These attributes should be clear and unquestionable before they are appointed as judges. If a judge is somehow homophobic, restricting his or her admission to the Boy Scouts of America will not change his or her mind. This could also lead to a slippery slope for judges and their restrictions. If we prevent them from joining an organization that has an unpopular opinion, what is to stop the government from preventing judges from joining a certain political party or volunteering for a nonprofit organization that works to empower women, for example? Many organizations take stances on issues such as gender and race. Would we bar judges from joining these organizations because of this?

The Boy Scouts of America are legally protected in prohibiting homosexuals from being leaders in their organization due to their religious preferences. Though it is an extremely unpopular opinion to many, the BSA is exercising its freedom of religion right granted in the First Amendment. This issue is extremely important because judges are the ones that society expects to be upholding constitutional rights. Instead, they are having their rights restricted in order to keep their jobs.

Do you think the government has a right to restrict its judges from joining certain organizations based on their values?

11 comments:

Nina N. said...

Initially, I did not see the problem behind this rule. But as you pointed out, Californian judges are still allowed to be members of other organizations that discriminate on the basis of other characteristics. There is definitely a parallel between this and the Catholic juror blog post, and I agree that being apart of an organization does not mean you uphold all of their values. Laws cannot be made to regulate everything, and while I do believe this rule was put in place with good intentions, it seems to cause more trouble and contradictions than needed. Hopefully, judges are educated and mature enough to use fair judgment in the cases they hear.

Nate McGuinness said...

I'd like to think that I have enough faith in judges in general to not take too much offense at what clearly has the potential, one could argue almost deliberate aim, to be offensive/discriminatory. However, in my mind refusing membership to a private group is much different than being able to refuse service from a private company, like the cake example in class where I came down on the opposite side of the issue as I do now. Although I definitely don't argue with this practice, utilizing the judiciary in this manner to regulate the law and its implementation seems to be logically legal to me, and denying membership seems to only affect ones hobbies or interests, not access to services or food etc.

Alex L. said...

I do not believe the government has the right to restrict judges from joining certain organizations based on their values. Judges are the centerpiece of our legal system and it seems inconsistent to trust them to rule on some of the toughest issues facing our society and then somehow deny them the ability to join the Boy Scouts. Most organizations hold positions yet this seems to be an unbashful targeting of the Boy Scouts of America. Frankly, I believe the politics of this issue have really entered the courtroom in this instance.

Tommy S said...

The comparison between religions that discriminate and the Boy Scouts is interesting but a court cannot bar judges from being in religious groups because that clearly violates the Free Exercise Clause. Barring a judge from joining the Boy Scouts, however, does not infringe on their right to practice their religion and does not violate the First Amendment. I don’t think the California Supreme Court is favoring religious groups, there just abiding by the Constitution.

Morgan Manchester said...

When I first read the case, I did not see the issue with the rule. So long as Judges were not allowed to be a part of any such organizations than it should be okay. Upon reading further, and understanding that judges can have religious afflictions and are allowed to be a part of other organizations that have clear discriminations based on race, religion and other defining features, I think that denying judges from participating in organizations such as the boy-scouts is quite ridiculous and doesnt seem to make sense when they are allowed membership in the National Rifle Association etc. that have made similar such claims. Also, no where in the boyscouts does it say that they must be homosexuals, thus members can be a part of the organization and not espose such values themselves. I think that this overall rule that they cannot hold membership "in any organizations that practice discrimination" is much too much government involved and gives the government too large of a role in deeming what are acceptable organization and which are not.

Nneoma I. said...

I agree with your position regarding the California Supreme Court Judge's right to involve themselves in specific organization. It is naïve to assume that Law officials will not have strong or unpopular political and religious positions. However, in order to be qualified for the job these individuals must separate their own personal bias and treat everyone equally. Taking away their ability to involve themselves in these organizations will not suddenly change their potential discriminatory views. In my opinion, allowing government to dictate which organizations these judges can involve themselves in will lead to more controversial issue in the future. As long as these judges don't discriminate people themselves, I don't see a reason to regulate which programs they support.

Trevor T said...

I agree with the author, the concept that judges are permitted to be apart of religious groups such as the catholic church and the jewish faith, both which technically discriminate against women by not allowing them to be priests, but are not allowed to join BSA is contradictory. I don't support the BSA stance, but they have a constitutional right to take the stance, and judges should have a right to join. Also the BSA are not primarily focused on discriminating, it is an organization that teaches many positive things and judges are being excluded from being apart of it due to one particular belief. I think the role of a judge is to interpret cases objectively and fairly, but if they hold a certain view they will be likely to express it no matter what outside group they may or may not be able to join.

Adam Drake said...

When I first read this post I did not see the issue with barring judges from joining the BSA. However, your point about the judges being permitted to be a part of religious organizations and politically active organizations such as the NRA showed that this ruling was unprecedented and ignorant. I understand the call for judges to be impartial and I do not see how joining a group could affect that impartiality. Judges are intended to be some of the brightest legal minds in our society and hopefully should be able to maintain impartiality without regulations placed on their personal lives. This ruling would set a precedent that the government could bar any state employee from joining certain groups which would send us down the ubiquitous slippery slope once again. .

robert bryson said...

The California state law which prohibits judges to become members of the Boy Scouts of America is absolutely unconstitutional. Although I do not support the BSA myself, Judges should have the equal protection to practice freedom of religion and free exercise just as any other American citizen. There status as a member of the judicial system should not exclude them from any organization that affiliates with a religion. There is no law prohibiting them from participating in a strict Orthodox faith which, in many cases, it would follow that there faith leads them to discriminate in similar ways as the BSA. Understandably, California state would like to ensure that judges do not have any discriminatory biases. However, there are no restrictions which could be placed into law which would eliminate the natural tendency for human beings to hold personal opinions and be involuntarily bias. Therefore, the law is not only unconstitutional but is also pointless.

Nate Hunter said...

Barring a judge from joining the Boy Scouts may not infringe on their right to practice their religion, it does however restrict their rights unnecessarily in my opinion. Like you aptly pointed out, there are other controversial organizations which these judges are allowed to be apart of. Gun issues arise frequently in the judicial system, and one could say that a judge who is a member of the NRA might be biased because of this connection; yet they aren't disallowed membership. Also, a boy scout membership in my opinion would not affect a judges ability to carry out his job, as that judge is going too pursue his religious convictions regardless of whether he is apart of the boy scouts or not. As Robert pointed out, there is no law barring a judge from being a strict orthodox, or any religion for that matter, that could potentially skew their opinions or judgements in the courtroom, which would have a much greater impact then a simple boy scout membership. In my opinion, if we are trying to avoid all forms of bias from our judges, they should be required to be atheist, to avoid any possibility of religious favoritism or biased judgements.

Emily C. said...

I see the prohibition on judges being allowed to be members of the Boy Scouts of America as extremely unconstitutional. As others have mentioned, the fact that the state permits judges to have membership in other religious groups, but not this group that expresses religious values, preferences one religious view over another, not to mention the fact that it inhibits their free exercise. Judges of the California Supreme Court are nominated by the governor, and are confirmed by a Commission that is intended to reflect the social, religious, and sexual diversity of the population. It is up to this Commission to determine if the judge is fit to preside after a public hearing is conducted. If the nominee is qualified, I believe that they should be allowed to serve, regardless of religious affiliation.