ABA proposed ethics code changes include "sexual orientation" rule

ABA proposed ethics code changes include "sexual orientation" rule
An Associated Press story from late Friday notes that among several proposed changes to the American Bar Association canons of conduct for judges is one prohibiting membership in groups that discriminate on the basis of sexual orientation. Here, according to the ABA's website, is the change (additions are 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.

Associated Press Gina Holland suggests some implications:

It is not known how many judges participate in groups such as the Boy Scouts that have policies against hiring gays or having homosexual leaders, or some veterans groups that restrict membership to heterosexuals. … The ABA is not expected to vote on any changes until next year. It would be the first overhaul of the rules in more than a decade, and any changes eventually could affect thousands of judges. …
The proposed change to membership in groups that discriminate against gays is energized in part by the Supreme Court's ruling a year ago that states cannot "demean" same-sex couples by punishing their sexual conduct. The leader of the ABA commission, Phoenix lawyer Mark Harrison, said that without getting into a political debate about the rights of gay couples to marry, the panel wants to "make sure that judges aren't viewed as bigots."

New York University ethicist Stephen Gillers is quoted in favor of the change, senior U.S. District Judge and University of Maryland senior judicial fellow and lecturer Frederic Smalkin is against it. Activists from the American Family Association and Lambda Legal are quoted on their usual perspectives.

But here's one problem with the report:

Smalkin said it could be difficult to define what organizations are acceptable. "Does that mean a judge could not belong to the reserves or National Guard?" he asked

No, since the proposed changes specifically say they can. Here's the proposed note to go with the new rule:

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.
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So a judge could still serve in the National Guard, belong to a Southern Baptist church, donate to Focus on the Family, or join any host of organizations that gay activists would probably rather prohibit judges from joining.

But what about the Boy Scouts? Is it sufficiently "dedicated to the preservation of legitimate cultural values"? Maybe. But activists would have a hard time making the case that it's "invidiously discriminatory." The New Jersey Supreme Court's ruling that the scouts' ban on gay leaders is based "on little more than prejudice" was overturned by the U.S. Supreme Court back in 2000.

So what group would judges be truly forbidden from joining under this new rule? Dunno. But California has "a 1-year-old rule requires state judges to disclose if they are members of groups like the Boy Scouts," says the AP. The Lambda Legal attorney explains, "It didn't convey the symbolic message that belonging to groups that discriminate based on sexual orientation is always unacceptable for a judge, but it essentially had the effect of making it difficult for judges to continue to belong." Which suggests that the new rule may be less about prohibition and more about pressure.

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