In a February 7 story in Cal Catholic, the California Supreme Court’s ethics committee was quoted as advising the court to ban all state judges from affiliation with the Boy Scouts of America.
The committee, chaired by Richard Fybel, an appeals judge from Orange County, is pushing for a repeal of an exemption to the ban on judges serving in groups that discriminate based on gender or sexual orientation. Currently the California courts exempt the Boy Scouts from this ban.
In its invitation to comment on repealing the exemption, the committee asserted that 21 states already ban judges from belonging to the Boy Scouts.
One of our correspondents emailed the following to Cal Catholic on April 16:
“Given the press of time, I did not have time to fully explore the assertion that 21 states already ban judges from belonging to the BSA. It doesn’t say it that succinctly, but that is definitely the import of what it is saying. However, I can find no evidence of any other state which bans judges from belonging to the BSA. If you Google ‘Judges prohibited [or barred] from membership in Boy Scouts,’ you get almost nothing but hits about California. The few other documents I have managed to pull up from other states came down on the other side on this issue.”
A Cal Catholic reporter called Judge Fybel on April 16 to ask about this disparity. Fybel returned the call. When asked why he made his claim about the other 21 states, Fybel claimed all he said in the invitation to comment was that the other states do not have an exemption for the Boy Scouts in their anti-discrimination language.
On April 21, the correspondent sent Cal Catholic a follow-up email:
“Did I send you this link that I got from the staffer on the Committee? I think this takes care of the 21-other-states myth. The linked opinion from the Connecticut judicial advisory committee, which was written AFTER the Fybel recommendation, sums up what is going on in other states. Answer: no other state bans judges being members of the BSA, though this CT committee is recommending it for CT. I am not sure how official this CT committee’s opinion is or what effect it has.
“….Basically, the Fybel committee wants to impose a new rule that membership in the Boy Scouts, per se, is such a black mark on the judge’s overall character as a practicer of ‘invidious discrimination’ that he should not be allowed to hold the office while being a member of the BSA. And that this will ‘enhance public confidence in the impartiality of the judiciary.'”
On April 15, Catherine Short of the Life Legal Defense Foundation submitted a comment in response to the Fybel committee’s recommendation. Excerpts:
“The Committee’s invitation ignores the fact that the change also encompasses other youth organizations whose membership is limited on the basis of gender, e.g., the Girl Scouts, as well as the military, which continues to practice ‘discrimination’ on the basis of gender.
“Perhaps this is not an unintended consequence and the Committee indeed means to prohibit membership by judges in organizations like the Girls Scouts and military reserve, though there is no indication of such result in the Invitation. Or perhaps the Committee believes that such discrimination by the Girls Scouts and the military is not ‘invidious,’ as opposed to the ‘invidious discrimination’ practice by the BSA in excluding those of openly homosexual orientation from adult leadership positions.
“….Indeed, the Committee’s application of Canon 2C to the BSA is arbitrary. The BSA does not ‘exclude’ homosexuals from membership. As the Invitation itself explains, it prohibits them only from serving as troop leaders, i.e., a specialized function within the BSA structure….
“As this Committee is undoubtedly aware, the label of ‘discrimination’ is extremely potent, one might even say toxic, in our society today. The label brings into play an entire existing framework of statutes, ordinances, regulations, professional codes, licensing criteria, funding limitations, human rights commissions, etc., not to mention the social stigma attached to being on the receiving end of an accusation of bigotry. Because of the huge pay-off, there is a tremendous incentive for one side of an ideological debate to tar its opposition with engaging in ‘discrimination.’ If the label sticks, the battle is largely won….
“By promoting a hierarchy of politically-favored ‘victim’ status through pointlessly impugning the integrity of members of a venerable American institution, the proposed Amendment will communicate to the public that judges are being told by the California Supreme Court what to think, whom they may associate with, and what are permissible opinions to hold, and that only those who toe the line will be allowed to sit on the bench. The public can hardly expect impartiality from the judiciary in such a climate of intolerance.”