INTRODUCTION/BACKGROUND: In the interest of full disclosure, here's a brief statement of my background in this issue. I was (technically still am) a Boy Scout. I did the whole program, from Cub Scouts (Arrow of Light) on up, earning my Eagle Scout badge at a rather young age, one week before my 14th birthday. I also participated in the Order of the Arrow and was awarded the Vigil Honor after 3 years of membership. My political/social view is pro-gay rights (e.g. pro-gay marriage). All of this may (likely will) be relevant in the ensuing discussion.
THE STORY: I came across this post over at The Volokh Conspiracy and it piqued my curiosity. The post links to an article at Christianity Today entitled "Will the American Bar Association Bar Judges as Scout Leaders?" The Volokh post itself is rather lengthy and discusses, in depth, the author's (Eugene Volokh's) take, not so much on this consequence of the ABA proposed rule change, but on sexual orientation discrimination by social groups (e.g. The Boy Scouts of America, a.k.a. BSA) and the arguments for and against this.
Here is the proposed change to the ABA ethics code, the changes being underlined:
3.03 Affiliation with Discriminatory Organizations. A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or, national origin, ethnicity, or sexual orientation, and shall not use the facilities of such an organization to any significant extent.To go along with this proposed change, here is the proposed note:
Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired. Whether an organization's practices are invidiously discriminatory is often a complex question. An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, national origin, ethnicity or sexual orientation individuals who would otherwise be admitted. Rule 3.03 does not prohibit a judge's membership in any United States military organization, an organization dedicated to the preservation of religious, ethnic, or legitimate cultural values of common interest to its members, or one that is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited.A small historical matter before the commentary. Back in 2000, SCOTUS (a.k.a. The Supreme Court Of The United States) handed down a decision in Boy Scouts of America v. Dale, allowing the Boy Scouts to disallow participation by avowed homosexuals. (Article by Christianity Today on that decision here, synopsis and SCOTUS decision in HTML here, BSA press release in response to the favorable SCOTUS decision here.)
According to the synopsis:
The Boy Scouts asserts [sic] that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior.I'm not particularly happy with the BSA's stance on this issue since I strongly disagree that homosexuality implicates any of those aspects of the Boy Scout Oath and Law. In addition, I think there's a big difference between "promoting... conduct" and respecting that conduct. (e.g. I do not promote homosexuality but I do respect it and believe that its members should retain similar rights as available to heterosexuals.)
Note that I do agree with the SCOTUS decision since forced allowance of membership would create problematic situations in other exclusive groups. What's good for the goose...
But that's not significant here. I mention the SCOTUS case as a backdrop for the ABA code change. Since the Boy Scouts do discriminate (and legally can discriminate) based on a person's sexual orientation, were the ABA code change to go through, judges would either be prohibited from or discouraged from participating in the Boy Scouts.
It's interesting to note that, unlike my above statement in response to the SCOTUS decision, when it comes to the proposed change what's good for the goose is NOT good for the gander. Judges may (of course) still participate in "any United States military organization." So membership in the U.S. military, even though it similarly discriminates against homosexuals, remains unaffected. Furthermore, a judge may belong to any "organization dedicated to the preservation of religious, ethnic, or legitimate cultural values of common interest to its members." This preserves a significant portion of other social groups, such as church groups and ethnic societies. Notwithstanding that such membership may "[give] rise to perceptions that the judge's impartiality is impaired." Amazing.
This only leaves a few groups, ones that slip through the cracks into the nebulous gray area between the National Guard and the Southern Baptist Church. Enter the Boy Scouts, a strong candidate for that nebulous region. The BSA has no particular religious or cultural affiliation. An argument could be made (vacuous legal phrase, minus one point) that the group does preserve "cultural values of common interest to its members," especially by virtue of the SCOTUS decision, but such an argument is tenuous at best given the lack of a common cultural identity.
So what does this ABA code change really effect? What seemingly improper memberships will it curtail given the ones it won't? What kind of message does this send about the ABA's view on ethical violations? To be honest, I don't know the answers to those questions and I'm not sure the ABA does either. I'll see if there's any further information I can find on this proposed ethics code change and the "reasoning" behind it but I sincerely doubt that I'll find sufficient answers to my queries. It's positively surprising how an enterprise undertaken with the best of intentions can turn in the wrong direction. Though I suppose with all of the lawyers running around it's not all that shocking.