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Scouts too Evil for CA Judiciary

The faces of intolerable injustice, according to the California Supreme Court (Thomas Hawk/Flickr)

The California Supreme Court has outlawed membership in the Boy Scouts of America for California judges. Excerpt:

The Boy Scouts of America continues to bar gay and lesbian adults from serving as leaders in the organization, even after lifting a ban on openly gay youth.

California’s judicial code of ethics bars judges from holding “membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity or sexual orientation.”

Until this week, California had provided an exception covering nonprofit youth organizations, including the Boy Scouts, the only state in the nation to do so.

California is one of 47 states that bans judges from joining discriminatory groups, and one of 22 that includes a ban on groups that discriminate on the basis of sexual orientation.

An ethics advisory committee to the California Supreme Court proposed the change again last year, saying it would “promote the integrity of the judiciary” and “enhance public confidence” in the judicial branch’s impartiality.

The only “anti-gay” organizations you may still belong to and serve as a California judge are religious ones. For now.

As ever, remember the Law of Merited Impossibility: It will never happen, and when it does, you people will deserve it.

UPDATE: A California lawyer writes:

The idea is that if a judge is a member of an organization that discriminates, maintaining that membership, taints the judiciary.   I suppose the theory is that if a judge belongs to an organization that discriminates, that judge cannot be fair when ruling on matters similar to the discrimination practiced  by that organization.    Of course that is the ostensible reason.  The real reason is to marginalize the boy scouts.

To me there are more than a few issues encapsulated by this decision.

It necessarily means that any effort by the scouts to bar gay troop leaders is irrational and hateful.   I remember when Dennis Prager made the point that he wouldn’t’ want a male heterosexual scout master sleeping in the tent with his girl scout daughter and wouldn’t want  a male homosexual scout master sleeping in the tent with this boy scout son.

Since even with its ban on gay scout masters, the boy scouts are currently fighting suits in many jurisdiction in which boy scouts were sexually molested by gays serving in leadership capacity with the scouts, this seems to be a pretty good rhetorical argument, unless you believe that gay scoutmasters with boys have greater control over their sexual desires than do heterosexual male scoutmasters with girls.

Even assuming the ban is proper, my thoughts have always run along the lines of better to have a judge who has some awareness of his or her personal prejudices and understands the need to take them into account in order to be fair to litigants, than someone who believes they are without prejudices but in fact has them.

Justice should be blind.  That is the reason that the terms environmental justice, social justice, racial justice, economic justice etc cause me concern.  Whatever judge is ruling, that judge should not be influenced by those factors.  That is the reason that Sotomayor’s comments about being a wise Latina disturbed me.   Is a wise Latina a  better judge than a wise Latino, a wise white woman, a wise gay man, etc? All should apply the same standard regardless of their background.

In California Proposition 8 passed affirming that California could bar same sex marriages.  The California Supreme Court upheld the law under the California constitution.  The opponents of the law challenged it in Federal Court in San Francisco and were assigned as the judge Vaughn Walker, a gay man who was in a long term relationship.  (Neither then Governor Schwarzenegger, nor then attorney general (now governor) Brown defended the law, effectively imposing an executive veto an a duly enacted intiative, something without precedent)  Should Walker have been prevented from hearing the case?   Can a committed Roman Catholic who doesn’t believe in divorce preside in a family law court?  Can a supporter of abortion rights, rule on bills restricting abortions to early pregnancy?  Where do we draw the line?  On how many cases would a judge who is a member of the boy scouts face a situation where his role in the organization would prevent him from ruling fairly?

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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