By: Eric G. Young, Esq.
On January 23rd, the California Supreme Court unanimously decided that state judges can no longer belong to the Boy Scouts of America. Under a statewide judicial ethics provision, California’s judges are prohibited from belonging to an organization that “practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.” (Canon 2C, California Code of Judicial Ethics.)
Until the Court’s decision, this ethics provision was mitigated by two exceptions. First, California judges are permitted to belong to religious organizations notwithstanding those organizations’ discriminatory practices. Second, judges were permitted to belong to nonprofit youth organizations, an exception implicitly benefiting the Boy Scouts and its member affiliates.
The Court eliminated this second exception, characterizing the Boy Scouts as an organization that practices “invidious discrimination” because it prohibits openly gay Scout leaders from participating in the organization. In reaching this conclusion, the Court adopted the recommendation of the California Advisory Committee on the Code of Judicial Ethics and the California Judges Association. The decision also brings California in line with a similar prohibition included in 1990 as part of the American Bar Association’s Model Code of Judicial Conduct.
Though unstated in its decision, the underlying rationale for the Court’s decision is, apparently, a concern that state judges retain at least the appearance of impartiality in their conduct. Such conduct includes the organizations in which state judges declare membership.
On its face, the Court’s decision seems well-founded. Judicial fairness and impartiality are of paramount concern to society. Without these, a core function of the judiciary is lost – the ability to follow the rule of law unscrupulously despite the pressures of political will. And, it is not far-fetched to argue that a judge’s membership in a discriminatory organization like the Boy Scouts gives the appearance that the judge might not be fair and impartial, at least under certain circumstances.
The problem with the California Supreme Court’s approach is that, no matter how laudable its intentions, it may be trampling on state judges’ First Amendment right to free association. Although not expressly mentioned in the First Amendment, the right to free association was recognized by the U.S. Supreme Court in National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958). The Court also stressed the importance of the right of free association in Roberts v. United States Jaycees, 468 U.S. 609 (1984) , writing:
“Implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”
As an article in BloombergView pointed out, me, you, all of us have a right to join whatever organizations we see fit. Consequences may result from our decision to join an organization that discriminates against others. Nevertheless, the freedom of association protects our right to make that decision. Should the rule of law be different for state judges? Might it depend on the organization the judge has joined? For example, what if the case involved a judge who was a member of the Ku Klux Klan?
The answers to such questions are not necessarily clear in a case involving judges. The U.S. Supreme Court has limited government employees’ First Amendment rights under certain circumstances. See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) [district attorney had no free speech protection for statements made pursuant to his public duties]. The Court might well decide that similar limitations ought to apply to state judges – particularly when judicial impartiality is at issue – and leave regulation of such conduct up to the states.
On the other hand, in the first campaign finance case to involve the judiciary, the U.S. Supreme Court heard oral arguments on January 20th in Williams-Yulee v. The Florida Bar. Williams-Yulee raises the issue whether state judicial candidates have a First Amendment right to solicit campaign contributions. As an NPR article observed, 30 states currently have laws banning such solicitations. Like the ban announced by the California Supreme Court, the reasoning behind laws prohibiting judges from soliciting campaign contributions is to preserve judicial impartiality.
State laws banning campaign solicitations by judges, however, presumably have no more force than state ethics provisions pertaining to judges. Therefore, if the U.S. Supreme Court disapproves of campaign finance bans and recognizes a First Amendment right among state judicial candidates to solicit campaign contributions – despite impartiality concerns – then state judges may have some right to free association under the First Amendment notwithstanding impartiality concerns. If that is the case, then California’s ban may be of dubious constitutionality.