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Calif. Judges Possibly Banned from Scouting Activity

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WOOHOO, I beat Eisley to the punch on this one! I found this on CNN's website today.


California to Review Whether Judges Can be Boy Scouts


Saturday, December 21, 2002 Posted: 4:59 PM EST (2159 GMT)


SAN FRANCISCO, California (AP) -- The California Supreme Court is considering prohibiting state judges from being members of the Boy Scouts because of its refusal to admit gays, the chief justice said.


The move, announced Thursday, comes months after San Francisco's judges and others cut ties with the organization for the same reason. The San Francisco Bar association and other groups recently asked the high court to revamp the rules.


California judicial canons, controlled by the Supreme Court, already demand that judges divest themselves from groups that discriminate against women and minorities.


Rules adopted seven years ago also forbid membership in organizations that discriminate against lesbians and gays but allow "nonprofit youth organizations," an exception for the Boy Scouts.


"The court had an extensive discussion about this matter and has decided to take up the matter at a future administrative conference after it undertakes a further study of the proposals," Chief Justice Ronald M. George said in a brief statement.


George did not indicate when the justices would reach a decision.


Boy Scouts spokesman Gregg Shields called the proposal "wrong, inappropriate and unconstitutional."


"The proposed policy would be just as inappropriate as a policy forbidding judges from being Roman Catholic or Baptist or Orthodox Jewish or any of numerous faiths which share the Boy Scouts' views," he told The New York Times.


Two years ago, the U.S. Supreme Court upheld the Boy Scouts' policy against homosexuals. The scouts argued that their code, requiring members to be "morally straight" and "clean," excluded homosexuals. The court said the scouts were entitled to define their own principles.



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Without getting into a whole legal dissertation, I highly doubt that Gregg Shields, the ever-present BSA spokesman, is correct in his statement that a ban on judges' involvement with the Boy Scouts would be "unconstitutional." The states are generally free to regulate the conduct of judges as they wish, and in terms of constitutional rights, it is probably the most heavily regulated "profession" there is. For example, most states prohibit judges from engaging in any partisan political activity (with limited exceptions for their own election campaigns in states where they are elected), a prohibition that would be absolutely unconstitutional if applied to anybody else. I took a quick look at New Jersey's Canons of Judicial Ethics, and judges here are prohibited from being members of organizations that discriminate on various grounds, though sexual orientation is not on the list as it apparently is in California. Again, such restrictions would be unconstitutional if applied to persons other than judges.


All of this is justified because being a judge is not only a privilege (rather than a "right,") but a very high privilege, and precluding someone from a judgeship does not preclude him/her from practicing law. (Being an attorney also is considered a privilege rather than a right, but the Supreme Court has held that you don't give up your First Amendment rights by being a lawyer. Clearly, when you become a judge, you do give up a chunk of your First Amendment rights, as the price for staying a judge.)


Personally, I have not supported the various efforts by other opponents of the BSA policy to reduce the BSA's funding, membership, affiliations, availability of meeting places, etc. My attitude is that if people within the BSA who oppose the policy cut their ties with the BSA, any chance of ever reversing the policy will be lost. (Actually, my prediction is that within 50 years, the policy will have been changed, but I'd prefer that it happen a bit faster than that.) However, I think the California Supreme Court would be correct in requiring judges not to be members of organizations that discriminate (with the exception of religious organizations, and I'm fairly sure the California rules contain that exception even though the story doesn't say so; the New Jersey rules do.) At the very least, if I were an attorney representing someone who was bringing a lawsuit claiming discrimination on the basis of sexual orientation, for example, I would sure like to know whether the judge was a member of an organization that supposedly believes that homosexuality is immoral.


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Kwc says:


Gee, I wonder if all of the judges who are members of Augusta are going to have to give up golf?


Not entirely, but at Augusta, probably yes. The basic canons of judicial conduct prohibit judges from being members of organizations that discriminate. I did a little looking around and found Georgia's rules, and there is a comment that makes it unclear how this would be be applied to a "private club." There also is a comment that basically says that if in doubt, a judge should refrain from activities that might be called into question. So I would say that a judge who belonged to Augusta National probably would at least be risking becoming the subject of an ethics complaint, though how the Georgia Supreme Court would decide the case is unknown. I would guess that in New Jersey, a judge would stand about a 75 percent chance of being found in violation if he was a member of a golf club that excluded women.

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NJ: At the very least, if I were an attorney representing someone who was bringing a lawsuit claiming discrimination on the basis of sexual orientation, for example, I would sure like to know whether the judge was a member of an organization that supposedly believes that homosexuality is immoral.


KWC: I understand your statement and agree with it. However, the problem is that regardless of whether a judge is a member of some organization or not, he may already harbor certain sentiments and you'd never have any idea. You may get a judge who just went thru a nasty divorce and has a bitterness towards women as a result. You probably wouldn't want him hearing your client's divorce case either. On the other hand, you may get a judge who is honest and can seperate his personal feelings from his judgement and find in your client's favor against his own personal feelings. I think this happens more than people realize.

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Kwc, you have a point, you usually don't know what a person is actually thinking. But, like a baseball manager deciding whether to send in a righty hitter against a lefty pitcher, you generally play the percentages. This comes into play more in picking a jury, and there are stories about lawyers who excuse a potential juror based on their profession or other characteristics, lose the case, and then find out later that the person probably would have been in their favor. It does sometimes factor in when deciding whether to try to get a judge disqualified from a case -- which is very difficult.


Ironically, if I were a judge, an attorney representing a gay person, who found out that I was a Cub Scout leader, might very well want me off the case. The lawyer really would have no way of knowing that I oppose the anti-gay policy -- not that my feelings would influence how I would deal with a particular case.

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I think the logic comes from 'the appearance' argument. If a woman lost a case and the judge was a member of say Augusta the charge of bias could be made. You can't prove a negitive so the charge would stick. As society gets more PC this appearance argument will, I beleive, get more and more complicated. At some point a scouter could make a charge to a Judge that he is biased because he does not belong to a character building youth group.


BTW NJ I agree with you the only way to make changes in the BSA is from within.

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My son's first Pack was sponsored by UCLA's Graduate School of Education's laboratory elementary school. Had been for years - we were the area's Pack 1.


And after Dale, we wrote letters to Executive, decrying the policy, promoting local determination, and letting them know our doors were open, etc.


We never got a response, and if the University had let things be, we would have been there as a resource for the next court challenge. "Look, here's this activist Cub group at UCLA with gay families and atheist families in their membership, and they've told you about their policies and you've done nothing. Isn't that de facto acceptance of atheists and gays - isn't that community standards in practice and fact?"


BUT - instead - UCLA, reacting to the decision, withdrew permission for use of facilities from the Troop we fed, and then - the next year - sponsorship from the Cub Scouts.


Who did they send a message to? Well, not to the BSA - by stifling this group, they did the old-liners a favor! A HUGE favor. No, they just sent a message to some kids that there's no value in trying to change the system.


And since the Girl Scouts still meet on campus, I suppose there's the girls-are-better-than-boys message.


NJ, I agree that the change will have to come from within, but those sponsoring organizations that themselves want change need to realize that too, and should really think through their actions before withdrawing sponsorship from any activist group...

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ya know, I bet the bigger better question is when will the BSA start doing a purge of their alcoholics! do you really think there are NO alcoholics in scouting? whew... ding! wrong, but thanks for playing our game!


so now that's bee clarified, do you have suggestions as to how we can start ferreting these out? you know, identify them so we can kick them out?


(oh, and smokers, too!)


share awareness, y'all!



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Alcoholics was only an example. My point is homosexuality is a lifestyle! It's not like a being born Black or Indian or autistic. It's a lifestyle! Nothing more. I know I know there have been studies that homosexuals are born not made but there is no scientific proof this condition exists at birth.


A blessed Christmas to all!


Ed Mori


Troop 1

1 Peter 4:10

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I'd like to ask you to play a little what-if with me. I'll understand if you don't wish to - no problem there.


here's the what-if - what if it IS shown that some gays are born to be gay? what if it were to be shown to be set prior to birth, even if not genetic?


what impact would this have on your perception of gay America? given such a thing, would you feel they might THEN have a right to Scouting?


you know - just as a what if?

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I am no advocate for homosexuality. I do however have a sister who is a lesbian and one of my very best friends is gay. Their "orientation" was not a choice. My sister was married for 17 years and my friend who was studying for the ministry along side me in college dated many girls while we were in school. They both tried to play by society's normal "rules" and ended up losing. They both will tell you that their attraction to the same sex and aversion to sex with the opposite sex was not a choice. The choice they DID make early on was to try to fit into the norm of society against their instincts and they were miserable for it. I do know some gay men that in an effort to follow their religious beliefs have remained "asexual" and have chosen not to engage in sex at all. But they are not too happy either. Homosexuality is a "lifestyle" just like being a scouter or a cowboy or a football tailgater is. But I can say sincerely from my experience with gay friends that they did not just choose one day to be homosexual instead of heterosexual. Do you think you could do that? I'm assuming that you are married and enjoy your sexual relationship with your wife. Do you think that you could one day say, "hmmmm, I wonder what it would be like to have sex with another man?" and actually desire it and enjoy it? I kind of doubt it! Regardless of what studies have determined or not determined, my gut feeling based on my experience is that they are born this way. There are one or two boys in my son's den that I'd bet cold hard cash on that they will grow up to be gay. I know profiling is not very PC, but there are too many stereotypical indicators in these boys for me to think otherwise. Much of that is based on what I observed in kids I grew up with who turned out to be gay.


Geez, I can see the replys now from both sides for the things I just said! Anyway, Merry Christmas all!!!

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