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Former San Francisco Bar Association president Angela Bradstreet
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California Supreme Court limits judges’ membership in Boy Scouts
Court stops short of barring judges from becoming Scout members
Published Thursday, 26-Jun-2003 in issue 809
SAN FRANCISCO (AP) — The California Supreme Court has decreed that state judges who are members of the Boy Scouts of America may have to disqualify themselves from hearing cases involving discrimination based on sexual orientation.
But in a ruling issued June 18 that affects California’s entire 2,000-member judiciary, the state’s top court stopped short of barring judges from being members of the Boy Scouts of America, as several local bar associations had requested.
Legal experts said the move by the seven justices was the nation’s first following the U.S. Supreme Court’s ruling in 2000 allowing the scouts to bar gays from being members or leaders.
“There is no other state that has adopted an express rule like this,” said Cynthia Gray, director of the American Judicature Society’s Center for Judicial Ethics.
California judicial canons already demand that judges divest themselves from groups that discriminate against women and minorities.
Rules adopted eight years ago forbade judges from being members in organizations that discriminated against lesbians and gays, but they allow membership in “nonprofit youth organizations” — an exception carved out for the Boy Scouts.
The issue surfaced three years ago, when the U.S. Supreme Court upheld the Boy Scouts’ policy against gays. The scouts argued that their code, requiring members to be “morally straight” and “clean,” excluded gays. The court said the scouts were entitled to define their own principles.
“What the California Supreme Court appears to be saying is that a judge who is a member of the Boy Scouts may have to disqualify himself in appropriate cases,” said Angela Bradstreet, the former San Francisco Bar Association president who urged the Supreme Court to alter its rules.
Judges would either have to step down or notify litigants in cases dealing with discrimination in the workplace against gays, and “any case involving gay adoptions or cases in which the sexuality of the litigant is an issue,” Bradstreet said.
Beth Jay, Chief Justice Ronald George’s chief attorney, said the high court’s decision was a compromise for those wanting a ban while protecting judges’ right to practice religion, given that many scouting programs are run through religious organizations.
“The court was paying careful attention, both to those who were making the request for change and for those for whom participation in the scouts is an important value for religious, or other reasons, and tried to strike a balance between those interests,” Jay said.
Gregg Shields, a BSA’ spokesperson, said the organization was not immediately prepared to comment. But he said the original proposal to ban scout membership by judges “would be inappropriate and unconstitutional.”
According to the amended code of conduct, even when a judge might not think scout membership is grounds for disqualification, a “judge should disclose the membership to the parties or their lawyers if the judge believes they may consider it relevant to the question of disqualification.”
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