Should judges be allowed to be adult scout leaders?

[Sentinel947 1205]

Possibly. Since there isn't a right to be a judge' date=' they might. [/quote'] Can California ban atheist judges? Or gay judges? Where does federal employment standards and the first amendment come into play?

[NJCubScouter 1389]

Sentinel: A state could not have a law prohibiting atheists from being judges. That would violate both the First Amendment and the "religious test" clause, I am sure Merlyn knows what Article that is in, I just know it is in there somewhere. As for gay judges, at this point there is no federal constitutional restriction on a state government barring gay persons from employment. Some state Supreme Courts have interpreted their own state constitutions to give persons "equal protection of the laws" regardless of sexual orientation. I know that New Jersey's has; not sure about California; and I know that some have not. However, I think it is fairly safe to guess that California DOES have a state statute forbidding discrimination in employment (including employment by the state) on the basis of sexual orientation. New Jersey does (and a different section of that same NJ statute is what led to the Dale case.) Some states do not. As for federal employment standards, I am not sure how those would apply to state judges, but at this point the federal statutes forbidding discrimination in employment on the basis of race, sex, religion, etc., do not include sexual orientation in the list.

[Sentinel947 1205]

So California cannot create a list of religious affiliations that can be judges and a list that cannot be? Because Merlyn said "Possibly. Since there isn't a right to be a judge, they might."

[TAHAWK 1420]

So can they make it so Christians cannot be judges if their branch of Christianity practices "invidious discrimination?"

 

 

Possibly. Since there isn't a right to be a judge, they might.

 

Didn't we have a problem once with only one religion being allowed to hold office? Had to be C of E? Revolution? Bill of Rights? Civil Rights?

 

Where's the ACLU when we need them?

[Peregrinator 85]

The Founders listed the Quebec Act (which, among other things, allowed Catholics to hold public office in Quebec) among the Intolerable Acts in the Declaration of Independence. So one shouldn't make too much of the Founders' adherence to the principles of religious liberty.

[TAHAWK 1420]

1776 vs. 1789

 

And while prejudice against Catholics was certainly a factor, that's not all that aroused hostility to the Quebec Act:

• The province's [Quebec's] territory was expanded to take over part of the Indian Reserve, including much of what is now southern Ontario, Illinois, Indiana, Michigan, Ohio, Wisconsin, and parts of Minnesota.- much of which had been previously granted to the Colonies.
  
• It restored the use of the French civil law for private matters, except that in accordance with the English common law, it granted unlimited testamentary freedom. It maintained English common law for public administration, including criminal prosecution.
  
• It restored the Catholic Church's right to impose tithes
  
• The governor was to rule the province with no elected legislature.
  

"The English colonists could not accept that London would grant territorial rights to their former enemies of New France against whom they had fought some 15 years earlier, not to mention would acknowledge the presence of "Canadian papists on British soil." The merchants of New York and Albany were incensed to see their westward expansion blocked and to forfeit the Great Lakes fur trade to Montréal, just as prior to the Conquest of 1760. The English colonists could not tolerate that the Québec Actappeared not only to set aside any plans to assimilate the French Canadians, but to legally assert the existence of a French civilization in America. They immediately denounced the "Anglo-Canadian collusion." A Boston lawyer wrote at the time: "Well now! We Americans, have we spent our blood and wealth in the service of Great Britain in the conquest of Canada, so that the British and the Canadians might now subjugate us?"

 

[AZMike 173]

It's getting heated.

 

Here are the proposed changes from the California Supreme Court Advisory Committee on Judicial Ethics: http://www.courts.ca.gov/documents/SP14-02.pdf

 

As the Boy Scouts were declared to be a "religious organization" in a federal court decision in California brought by the ACLU, it would certainly give dissenting judges maneuver room.

 

It's also interesting that the proposed changes include "eliminating the military organization exception because the U.S. military no longer restricts military service by gay, lesbian, and bisexual personnel" - the military does continue to exclude transexuals from military service, so I don't know how that slipped by the Guardians of the New Public Morality. Machts nicht to me, though.

 

More interesting are the comments, pro and con, from the community as published in the Daily Journal, a California law journal: http://www.dailyjournal.com/DJEditor...ttachments.pdf

 

Some of the more interesting comments include:

COMMENT:

I respectfully oppose the proposed changes known as SP14-02 that would require California judicial officers to renounce membership or affiliation in the Boy Scouts of America. Ensuring that judges do not discriminate from the bench is imperative to assuring the fair and equitable justice, but rooting out judges based on extra-judicial affiliations such as the Boy Scouts in a judge’s private life goes too far and penalizes the right to freedom of association, free exercise of religion, and freedom of speech. Judges of integrity can be capable of performing their official duties with impartiality notwithstanding their membership the Boy Scouts. The rules permit judges to be members of traditional churches that hold views similar to the Boy Scouts, and rightly so given the First Amendment guarantees of free exercise. Those same guarantees permit judicial officers to be members of youth organizations that, for religiously motivated reasons, hold similar views regarding the practice of homosexuality. There is no compelling or even rational basis to justify an attack on a judicial officer's First Amendment rights to freedom of association, speech, and free exercise of religion associated with membership in the Boy Scouts. I urge that this proposed rule be rejected.

 

 

 

COMMENT:

I am a practicing attorney and a parent of a Cub Scout. I oppose your proposed ban on judges holding membership in Boy Scouts of America for the reasons stated below.

The rationale language under the "Discussion" section of the proposed ban, Section 1B, is disingenuous and untrue. "Eliminating the exception would not have any effect on a judge's family member who could still join or continue to be members of the BSA" is incorrect. A parent (judge or otherwise) is required to participate in Cub Scouts (i.e. mandatory to be present at all functions), and is expected as the child ages into Boy Scouts activities. The parent is expected to attend events, camping, weekly/monthly sessions, and assist the other leaders in weekly and monthly presentations and activities to help all the scouts earn their badges. When the child is at Boy Scouts level, the mothers are no longer able to participate and it is only the fathers, or other male family member, who can participate with the scout. Many judges are Eagle Scouts, or have otherwise participated in the meaningful BSA programs when they were youths. They wish to share the same experience with their sons. I disagree that the ban would allow "other family members to participate" because mothers, sisters, aunts, and family pets are not able to do so. Since the majority of judges in California are male, this adversely affects the male judges who serve on the bench.

 

The statement made in the Summary of the proposed rule change states that the "committee proposed retaining the exception for religious organizations", however the BSA is a faith-based youth organization. One of the 12 Core Values for Cub Scouts is "Faith-Having inner strength and confidence based on our trust in God". This means that families participate with BSA because of the non-denominational religious practices that are supported in BSA activities. The religious practices include prayers at meetings, Scout oaths and promises which include references to God, celebration of holidays with other members based on the religious beliefs (not commercially accepted practices), and practicing Biblical principles. Banning judges from participating in BSA does restrict a judge from allowing his or her child from participating in a faith-based organization so it does limit a judge and the judge's family from exercising their religious freedom and right to assemble.

 

If parents do not want to belong to a group that supports inter-faith beliefs, there are plenty of other secular groups to which they and their families can belong. Some examples are AYSO (soccer groups), youth sports teams, and so forth. Parents pick BSA because of its beliefs, not in spite of them. Parents and their children are prohibited from expressing their religious beliefs in most other organizations, including public schools and secular affiliations, but the religious beliefs are a part of BSA and all activities.

 

The sacrifices the public asks of its judges are many, including safety risks, limiting their First Amendment rights as it relates expressing their opinions, financial sacrifices by giving up private practice, and so forth. The proposed BSA ban, however, goes too far, and unconstitutionally limits not only the judge, but also the judge's son in the son's choice of groups with whom he

may associate. It is hard to believe that when a judge takes an oath of public loyalty that he or she intended to limit, rather than to expand, the opportunities for his or her sons.

 

The argument that "...prohibiting judges from being members of or playing a leadership role in the BSA would enhance public confidence in the impartiality of the judiciary" is unsupported. It is expected that if a case arose before a judge that involved BSA that a judge would disclose the conflict of his membership and/or disqualify himself if the facts required such disqualification. It is insulting to imply that a judge's membership in BSA prevents a judge from hearing any matter having anything to do with sexual orientation.

In conclusion, I oppose your ban on judges holding membership in BSA."

 

 

(This poster noted the disproportionate impact this would have on Mormon judges, who do not have the option NOT to have their sons participate in Scouts - something that hadn't occurred to me: )

 

COMMENT:

1. Many of the judicial officers and potential judicial officers participate in the BSA in connection with the religious organizations in which they are members, specifically the Church of Jesus Christ of Latter-day saints. Participation is done by calling or assignment by church leaders. It is generally accepted that such a "call" is by divine direction and rejection of such a calling would not be appropriate. To place enact this change would substantially impact and impinge on the religious freedoms and rights of such individuals.

 

2. By enactment of this modification the California bench will not have the type of diversity to which it has aspired and which is beneficial to the bench and public. As the Canon's now stand any judicial officer is under obligation to recuse in a case in which their impartiality may be questioned. That is sufficient balance and maintains the integrity of the judiciary. To go further, damages the judiciary by effectively eliminating a group of now sitting and prospective jurists who, in most cases have added significant diversity and value to the bench. Certainly Vaughn Walker was not required to recuse himself. There should be sufficient room for those who privately may hold moral and religious views relative to these very important sensitive topics

 

 

Another poster also noted this. It would seem to be a case of religious discrimination against LDS members.

 

 

I strongly oppose a universal disqualification of judges on the basis of membership or leadership in the Boy Scouts of America.

 

As a member of The Church of Jesus Christ of Latter-day Saints, I have served in multiple leadership positions in the BSA in connection with my church membership. The BSA is an integral part of the LDS church's youth program for boys aged 7 through 18. Members of the church are sometimes assigned (as I was) by their religious leaders to serve in positions of BSA leadership. This participation is regarded as religious church service.

 

Provisions of the canon appropriately exempts membership in religious organizations as constitutionally protected. I respectfully submit that the proposed amendment to Canon 2.C should be accepted as to judges whose participation in the BSA stems from their religious practice which is constitutionally protected. Thus, I urge the Court to adopt an exception applicable to judges whose participation in the BSA is pursuant their religious practice.

 

Thank you for your consideration of this comment.

[AZMike 173]

COMMENT:

I am an attorney living and licensed to practice in California for many years and have looked forward to someday being appointed to serve in the state or federal judiciary in this great State. I am unable to provide my real name in connection with this comment because of the inevitable retaliation that would result against me. I respectfully disagree with the Proposed Amendments to Canon 2C of the Code of Judicial Ethics (“the Codeâ€Â) submitted by the Supreme Court Advisory Committee on the Code of Judicial Ethics (“the Committeeâ€Â) on these grounds:

 

1. The Committee fails to provide supporting evidence to demonstrate that the current version of the Code has failed to accomplish its intended purposeâ€â€for example, evidence that a judge’s service in a youth organization caused an actual or credible perception of bias to taint her decisions. Nor has the Committee provided any evidence to support a reasonable conclusion that actual bias or credible perceptions of bias will taint the credibility of the judiciary if the proposed changes are not made.

 

2. The Committee fails to provide supporting evidence to demonstrate that the proposed changes will have any appreciable effect on eliminating any bias or perception of bias in the judiciaryâ€â€for example, evidence that by renouncing her membership in a youth organization, a judge’s actual bias or a litigant’s perception of her bias would be eliminated in light of her past membership in such an organization.

 

3. In this unique context of amending the Code to eliminate the prior exception, the proposed changes would cast an unconstitutional shadow over a current judge or any candidate for judicial office that previously volunteered with a youth organization.

 

4. While the Committee recognizes “that membership in religious organizations is constitutionally protected,†the proposed changes fail to recognize that active participation in a particular youth organization is often a vehicle of religious expression and worship, such as where a Boy Scout troop is sponsored by a local church and where that troop functions as a vehicle for the religious worship of the youth and leaders in that troop. In such cases, religious activity is inextricably intertwined with membership in a youth organization. Consequently, the proposed changes shouldâ€â€at a minimumâ€â€be amended to recognize that membership in a youth organization would not violate the Code where such membership is intertwined with membership in a religious organization.

 

5. The Committee fails to explain why other, less restrictive, amendments to the Code would not be adequate to remedy the purported problem. For example, in a case where membership in the Boy Scouts may reasonably be perceived to create a conflict of interest or bias, a judge could remedy the problem simply by recusal. Why must the entire judiciary be purged of those who volunteer their time and efforts in a youth organization whose official oath requires its members “to help other people at all times,†whose motto is to “be prepared,†and whose slogan is to “do a good turn daily?â€Â

 

[AZMike 173]

There are a lot of other comments, pro and con, worth reading.

 

Should this issue concern you if you are not a member of the judiciary?

 

Clearly, yes.

 

Many of us are quite open in our professions and careers about our association with the BSA. That was never a cause for concern before, but could be in the future, as BSA membership could cause you to be professionally blacklisted, as some in positions of power are increasingly using their positions as gatekeepers to marginalize you for your choices in the organizations you choose to support, in support of their own social goals.