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SP14-02
Proposed Amendments to Canon 2C of the Code of Judicial Ethics
All comments are verbatim unless indicated by an asterisk (*).
A
1.
Commentator
Douglas Abendroth
Irvine, CA
Position
Comment
D
COMMENT:
I respectfully oppose the proposed changes known as SP14-02 that would require California judicial
officers to renounce membership or affiliation in the Boy Scouts of America. Ensuring that judges
do not discriminate from the bench is imperative to assuring the fair and equitable justice, but rooting
out judges based on extra-judicial affiliations such as the Boy Scouts in a judge’s private life goes too
far and penalizes the right to freedom of association, free exercise of religion, and freedom of speech.
Judges of integrity can be capable of performing their official duties with impartiality
notwithstanding their membership the Boy Scouts. The rules permit judges to be members of
traditional churches that hold views similar to the Boy Scouts, and rightly so given the First
Amendment guarantees of free exercise. Those same guarantees permit judicial officers to be
members of youth organizations that, for religiously motivated reasons, hold similar views regarding
the practice of homosexuality. There is no compelling or even rational basis to justify an attack on a
judicial officer's First Amendment rights to freedom of association, speech, and free exercise of
religion associated with membership in the Boy Scouts. I urge that this proposed rule be rejected.
2.
Rene Abraham
Redlands, CA
D
COMMENT:
I am a practicing attorney and a parent of a Cub Scout. I oppose your proposed ban on judges
holding membership in Boy Scouts of America for the reasons stated below.
The rationale language under the "Discussion" section of the proposed ban, Section 1B, is
disingenuous and untrue. "Eliminating the exception would not have any effect on a judge's family
member who could still join or continue to be members of the BSA" is incorrect. A parent (judge or
otherwise) is required to participate in Cub Scouts (i.e. mandatory to be present at all functions), and
is expected as the child ages into Boy Scouts activities. The parent is expected to attend events,
camping, weekly/monthly sessions, and assist the other leaders in weekly and monthly presentations
and activities to help all the scouts earn their badges. When the child is at Boy Scouts level, the
mothers are no longer able to participate and it is only the fathers, or other male family member, who
can participate with the scout. Many judges are Eagle Scouts, or have otherwise participated in the
meaningful BSA programs when they were youths. They wish to share the same experience with
their sons. I disagree that the ban would allow "other family members to participate" because
mothers, sisters, aunts, and family pets are not able to do so. Since the majority of judges in
California are male, this adversely affects the male judges who serve on the bench.
The statement made in the Summary of the proposed rule change states that the "committee proposed
1
Positions: A = Agree; AM = Agree if modified; N = Do not agree; NI = Not indicated.
SP14-02
A
Commentator
Position
Comment
retaining the exception for religious organizations", however the BSA is a faith-based youth
organization. One of the 12 Core Values for Cub Scouts is "Faith-Having inner strength and
confidence based on our trust in God". This means that families participate with BSA because of the
non-denominational religious practices that are supported in BSA activities. The religious practices
include prayers at meetings, Scout oaths and promises which include references to God, celebration
of holidays with other members based on the religious beliefs (not commercially accepted practices),
and practicing Biblical principles. Banning judges from participating in BSA does restrict a judge
from allowing his or her child from participating in a faith-based organization so it does limit a judge
and the judge's family from exercising their religious freedom and right to assemble.
If parents do not want to belong to a group that supports inter-faith beliefs, there are plenty of other
secular groups to which they and their families can belong. Some examples are AYSO (soccer
groups), youth sports teams, and so forth. Parents pick BSA because of its beliefs, not in spite of
them. Parents and their children are prohibited from expressing their religious beliefs in most other
organizations, including public schools and secular affiliations, but the religious beliefs are a part of
BSA and all activities.
The sacrifices the public asks of its judges are many, including safety risks, limiting their First
Amendment rights as it relates expressing their opinions, financial sacrifices by giving up private
practice, and so forth. The proposed BSA ban, however, goes too far, and unconstitutionally limits
not only the judge, but also the judge's son in the son's choice of groups with whom he
may associate. It is hard to believe that when a judge takes an oath of public loyalty that he or she
intended to limit, rather than to expand, the opportunities for his or her sons.
The argument that "...prohibiting judges from being members of or playing a leadership role in the
BSA would enhance public confidence in the impartiality of the judiciary" is unsupported. It is
expected that if a case arose before a judge that involved BSA that a judge would disclose the
conflict of his membership and/or disqualify himself if the facts required such disqualification. It is
insulting to imply that a judge's membership in BSA prevents a judge from hearing any matter having
anything to do with sexual orientation.
In conclusion, I oppose your ban on judges holding membership in BSA.
2
SP14-02
A
3.
Commentator
Access and Fairness Advisory
Committee
Hon. Laurie D. Zelon, Chair
Los Angeles, CA;
Task Force on Self-Represented
Litigants
Hon. Kathleen E. O’Leary, Chair
Santa Ana, CA
Position
Comment
A
COMMENT:
The Access and Fairness Advisory Committee (AFAC) and the Task Force on Self-Represented
Litigants (SRLTF) appreciate the opportunity to comment jointly on the proposed amendments to
Canon 2C of the Code of Judicial Ethics, and to convey their support for the proposed changes. In
light of profound societal changes, public policy, and recent case law, discrimination based on sexual
orientation is not only unconstitutional, but also unfair and morally wrong.
The elimination of invidious discrimination by the United States military against gay, lesbian, and
bisexual personnel has involved historic efforts that have reached into all branches of government for
over 70 years. On September 20, 2011, elimination of this inequitable practice was finalized when
the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff certified the
Congressional repeal of Don’t Ask, Don’t Tell, thus ending decades of injustice. The committee and
the task force agree that, as a result of this action, there is no longer any rational basis for maintaining
an exception to Canon 2C in the Code of Judicial Ethics for participation in the military, and that to
allow this exception to remain would serve only to perpetuate the era of invidious discrimination on
the basis of sexual orientation.
With respect to the elimination of an exception to Canon 2C for participation by judges in non-profit
youth organizations that practice discrimination, the committee and the task force strongly support
the proposed amendment. On June 26, 2013, the Supreme Court of the United States held the
Defense of Marriage Act (DOMA) unconstitutional under the Due Process Clause of the Fifth
Amendment (U.S. v. Windsor), and returned same-sex marriage to California by dismissing the case
challenging it for lack of standing (Hollingsworth v. Perry). Prior to these historic rulings, the
California legislature had enacted the California Domestic Partner Rights and Responsibilities Act of
2003, which provided that domestic partners were to have all the rights and responsibilities afforded
spouses under California law.
There is no rational basis to maintain an exception to Canon 2C of the Code of Judicial Ethics to
permit judges to participate in a specific organization that is openly hostile to individuals on the basis
of sexual orientation. While in 2013, the Boy Scouts of America chose to exercise its rights as a
private organization to abolish its discriminatory practices against gay children, it has chosen to
continue to ban gay adults from participation in the organization. We agree with the Advisory
Committee that the exception to Canon 2C of the Code of Judicial Ethics for participation in this, or
any other youth organization, that practices invidious discrimination should be eliminated.
3
SP14-02
A
Commentator
Position
Comment
There has been inconsistency among judges as to the interpretation of the exception in Canon 2C.
The language in Canon 2C that allows participation by judges in discriminatory youth organizations
creates a paradox within it that makes it fundamentally unworkable as a standard of conduct. The
exception to Canon 2C allows participation in such organizations only so long as such participation
does not violate Canon 4. Canon 4 forbids participation in extrajudicial activities that cast reasonable
doubt on the judge’s capacity to act impartially. Some judges believe that participation in an
organization that actively promotes animosity toward individuals based on sexual orientation clearly
raises reasonable questions about the judge’s capacity to be impartial. This has resulted in an
interpretation of Canon 2C as actually disallowing such participation because it is in violation of
Canon 4. Other judges do not believe participation in such organizations is in violation of Canon 4
and have interpreted the exception to Canon 2C as expressly allowing such activity. The elimination
of the exception in Canon 2C will provide judges with clarity as to their obligations under both
Canons 2C and Canon 4 of the Code of Judicial Ethics.
The AFAC and the SRLTF want to thank the Supreme Court Advisory Committee on the Code of
Judicial Ethics for the opportunity to comment on these proposed changes.
4.
Tom Achter
Penn Valley, CA
D
COMMENT:
Next let's have all Catholics, religious fundamentalists, etc. etc. banned from the Scouts, too. After
all, they are opposed to gay rights, as well. Then, anyone running a business should be vetted to
ensure they are on the correct side of the discussion. If not, cause a total boycott of their business
and, of course ban them from the Scouts. Next have research done to find evidence of lack of
numerical representation of gays in various occupations... by position alone, they should be banned
from the Scouts. Oh wait, the Judicial is an occupation... so if this prohibition is passed, occupational
"correction will have already begun". I was led to believe that the courts were very busy with all the
case backlog, longer term case load, etc. Perhaps it's time better spent if those working this issue go
back to doing real work? I'm just sayin'.
5.
Franklin C. Adams
Yucaipa, CA
D
COMMENT:
1. Many of the judicial officers and potential judicial officers participate in the BSA in connection
with the religious organizations in which they are members, specifically the Church of Jesus Christ of
Latter-day saints. Participation is done by calling or assignment by church leaders. It is generally
accepted that such a "call" is by divine direction and rejection of such a calling would not be
appropriate. To place enact this change would substantially impact and impinge on the religious
4
SP14-02
A
Commentator
Position
Comment
freedoms and rights of such individuals.
2. By enactment of this modification the California bench will not have the type of diversity to
which it has aspired and which is beneficial to the bench and public. As the Canon's now stand any
judicial officer is under obligation to recuse in a case in which their impartiality may be questioned.
That is sufficient balance and maintains the integrity of the judiciary. To go further, damages the
judiciary by effectively eliminating a group of now sitting and prospective jurists who, in most cases
have added significant diversity and value to the bench. Certainly Vaughn Walker was not required
to recuse himself. There should be sufficient room for those who privately may hold moral and
religious views relative to these very important sensitive topics.
6.
Jeffrey L. Adams
Walnut Creek, CA
D
COMMENT:
I strongly oppose a universal disqualification of judges on the basis of membership or leadership in
the Boy Scouts of America.
As a member of The Church of Jesus Christ of Latter-day Saints, I have served in multiple leadership
positions in the BSA in connection with my church membership. The BSA is an integral part of the
LDS church's youth program for boys aged 7 through 18. Members of the church are sometimes
assigned (as I was) by their religious leaders to serve in positions of BSA leadership. This
participation is regarded as religious church service.
Provisions of the canon appropriately exempts membership in religious organizations as
constitutionally protected. I respectfully submit that the proposed amendment to Canon 2.C should
be accepted as to judges whose participation in the BSA stems from their religious practice which is
constitutionally protected. Thus, I urge the Court to adopt an exception applicable to judges whose
participation in the BSA is pursuant their religious practice.
Thank you for your consideration of this comment.
7.
Jeffrey L. Adams
Walnut Creek, CA
D
COMMENT:
I am a native Californian, born and raised in the San Francisco Bay Area. I have always been proud
of the fact that we follow a pattern of inclusion, tolerance and diversity here in our state, to include
differing points of view and the freedom to act as to those points of view within, of course, the
constraints of the law.
5
SP14-02
A
Commentator
Position
Comment
This particular proposal, to me, is an embarrassing attempt to deviate from our California foundation
of inclusion, tolerance and diversity. At its core, this proposal seeks to penalize judges, or those who
would be judges, for doing that which they may believe to be both a good and an important
contribution to society, i.e. help raise boys with good experiences and moral teachings as to personal
behavior, including a commitment to follow the law, a development of personal discipline, an ethic
of generosity in a society where there is much need, and loyalty to one's God and country no matter
what the particular set of beliefs might be. In the words of former President John Adams, "Our
constitution was made only for a moral and religious people. It is wholly inadequate to the
government of any other." And former President George Washington, "Religion and morality are
necessary conditions of the preservation of free government." Whether one agrees or disagrees with
these propositions or with the approach taken by the Boy Scouts of America, they must in our
California free society remain part of our cultural diversity and inclusion even if others may disagree.
Our judiciary should and must have a healthy cross section of extremely well qualified individuals
who have different points of view to include the foregoing view which this proposal unabashedly and
improperly seeks to silence. There is a great danger lurking if we start to go down the path that belief
in God and moral conduct among our judges is to be viewed as bias instead of a necessary and
significant contribution to society.
8.
Michael D. Adams
Pasadena, CA
A
No specific comment.
9.
Craig P. Alexander 132017
Adeline Allen 280300
Justin M. Alvarez 223472
Casey L. Ames 270288
Allison K. Aranda 215021
Alan Leigh Armstrong 115386
Cynthia Arroyo 210348
Brian Barner 268792
Teri Barr 176260
William J. Becker Jr. 134545
D
COMMENTS:
See attached pdf.
6
SP14-02
A
Commentator
Jessica L. Bell 269010
Ronn Bisbee 207071
Martin R. Boles 124159
Yolanda Bosch 188842
Dean R. Broyles 179535
Steven Burlingham 88544
Joel B. Campbell 231678
Sam Casazza 185480
Holly L. Carmichael 268436
John S. Chou 159054
Catherine E. Christiansen 182144
Jeffrey N. Daly 59034
George Davis 274857
Scott H. Davison 228807
Deborah J. Dewart 221737
Kenneth C. Dickson 89368
Rebecca L. Eggleston 260140
Stuart E. Fagan 152732
Denise Furubotten 181733
David E. C. Gettis 211197
Anthony R. Gordon 124089
Mark R. Guevara 219556
Heather Gebelin Hacker 249273
David J. Hacker 249272
Dina S. Haddad 244389
David G. Hagopian 145171
Ross S. Heckmann 160225
Reed R. Heustis Jr. 213686
Amy Hilton 246942
William G. Holzer 251058
Kevin S. Hutcheson 139890
June Jantz 167599
Cyrus Johnson 225797
Paul M. Jonna 265389
Position
Comment
7
SP14-02
A
Commentator
Valerie P. Kilpatrick 265109
Ryul Kim 113606
Bradley J. Kirk 162826
Ronald V. Larson 180073
Alice G. Lee 263807
Donald R. Lee 144703
Charles S. LiMandri 110841
David L. Llewellyn Jr. 71706
Judith P. Logan 160448
Daniel J. Lynch 252312
Milton E. Matchak 215739
Merritt L. McKeon 187983
Teresa Mendoza 185820
Andrea V. Micklis 268317
Mark D. Millard 84221
Jose Hector Moreno Jr. 131970
Bill Morrow 140772
Joanna D. Mupanduki 283314
Joseph D. Nakos 282314
Kathleen Nakos 186846
Rev. Lu T. Nguyen 203229
Kathleen R. Novinger 201530
Natalie A. Panossian-Bassler 210184
Kevin M. Pasquinelli 77517
Arthur J. Pauly Jr. 95661
Jennifer K. Patrick 207534
Michael J. Peffer 192265
Michael L. Pellascio 213256
Jorge A. Pena 265990
Albert J. Rasch, Jr. 138219
William Rehwald 051396
Andrew J. Reid 268351
Robert J. Reynolds 151243
Benjamin C. Rosenbaum 262748
Position
Comment
8
SP14-02
A
Commentator
Stephen Shepard 153619
William G. Short 132479
James A. Smith 236148
Timothy M. Smith 125534
Myron S. Steeves 150772
John Stewart 147954
Laurie Stewart 228387
Clark H. Summers 69454
Timothy J. Swickard 208777
Robert M. Taylor Jr. 33043
Bryan M. Thomas 143737
Angela Thompson 238708
Terry L. Thompson 199870
David P. Toberty 151355
William E. Trask 174370
Esther R. Valdes 226408
David A. Valerio 133568
Kurt Van Sciver 263597
Daniel R. Watkins 163571
James W. Webster 75342
Andrew L. Westover Sr. 253398
Aaron M. White 266453
D. Colette Wilson 123112
Glen Worthington 244507
Emily A. Younger Jackson 231485
Andrew W. Zepeda 106509
Position
Comment
10. Timothy Alexander
Orange, CA
A
COMMENT:
I think this is a good idea and should have been implanted sooner.
11. All Seasons Hay Co
By David Hoffman
Cherry Valley, CA
12. Shirley Amdisen
D
COMMENT:
I strongly support the Boy Scouts of America and all the good people who serve there.
D
COMMENT:
9
SP14-02
A
Commentator
West Hills, CA
Position
Comment
Are we living in Nazi Germany now? I cannot believe this outrageous proposal is even being
considered!
The First Amendment of the Constitution provides US citizens the right to freedom of association. It
doesn't say anything about restrictions to non-profits like the Boy Scouts. The government or the
courts have absolutely no right to tell us (or judges) who we will/will not associate with, just because
it doesn't exactly like the ideas a group or person espouses. Frankly, it's none of their business! This
is stretching the Constitution beyond its scope. Furthermore, the Constitution had in mind to protect
citizens from exactly what is going in this country today. If you do not hold politically-correct ideas,
you are banned from participation in (fill in the blank).
This smacks not only of violation of free association rights but also violates freedom of religion
(another right guaranteed by the Constitution). Religious people have the right to belong to private
organizations (not just strictly religious ones) without fear of offending the current liberal
government sensibilities and retaliation by said government.
This whole idea is absolutely disgusting. I cannot believe we have come to the point of considering
the Boy Scouts a hate organization just because they hold certain moral beliefs. Boy Scouts made
my husband the wonderful person and citizen he is today. Stop meddling with something that doesn't
need to be fixed!
13. Michael J Amthor
Brentwood, CA
D
COMMENT:
Whether or not a judge is a member of an organization that practices invidious discrimination does
not determine the ultimate fact of whether that judge is actually discriminatory either personally or
while on the bench. I would rather a judge be allowed to participate in any organizations he/she
chooses so that one may be informed about any given judge rather than insulating judges from
general society and thus be unable to detect improper discrimination until it is too late e.g.
discriminatory decisions
14. Philip M. Andersen, Sr.
Danville, CA
D
COMMENT:
I am in private practice and have been for the past 30 years. I currently serve as a pro tem judge for
the courts in Northern California. I am also a member of the Church of Jesus Christ of Latter-day
Saints (LDS or Mormon). The LDS church is a sponsor of the Boy Scouts of America. The young
10
SP14-02
A
Commentator
Position
Comment
men (ages 12 to 18) of the church are assigned by their church leaders to a Boy Scout Troop to
attend. They are encouraged to attend that troop and they are held to be in good standing with the
church as they participate in the troop activities and programs. The young men join the Boy Scouts
and participate in troop events as part of their religious obligations and observances.
Adult men in the LDS church who are considered to be in good standing with the church are
occasionally given assignments by their church leaders to give voluntary service to the Boy Scout
troop which is sponsored by that particular congregation. Often it is the fathers of the boys in that
troop who are called to serve in this way. The men consider it a religious obligation and commitment
to accept these assignments and to assist with the Boy Scout program. They are held in esteem as by
other members of the LDS church when they fulfill these religious commitments. The men feel it is
their duty to God to hold these leadership positions in the Boy Scout program. These can include
serving as a scout master, an assistant scoutmaster or even serving at the District or Council level of
the Boy Scouts program. Simply stated, there is a strong connection between an LDS man’s
participation in Boy Scouts and his free expression and exercise of his religious faith and
commitment to God.
I participated in the Boy Scout program when I was a young man. I did so out of my religious
conviction. I am the father of six children, four boys and two girls. All of my four boys have
participated in the Boy Scout program as part of their religious duty to the church. All four of my
sons have achieved the rank of Eagle in the Boy Scout program. At times over the past 30 years,
while I have been practicing law, I have also been asked by my religious leaders to serve as a leader
in the Boy Scout program. I have participated in the program with my sons and with other boys, all
as a demonstration of my faith in God and in observance of my religious convictions.
In May of 2013, the highest leaders of the Church of Jesus Christ of Latter-day Saints made this
public statement about the Boy Scouts of America Program:
For the past 100 years, The Church of Jesus Christ of Latter-day Saints has enjoyed a strong
relationship with Boy Scouts of America, based on our mutual interest in helping boys and young
men understand and live their duty to God and develop upright moral behavior. As the Church moves
forward in its association with the Boy Scouts of America, Church leaders will continue to seek the
most effective ways to address the diverse needs of young people in the United States and throughout
the world.
11
SP14-02
A
Commentator
Position
Comment
The Church’s long-established policy for participation in activities is stated in the basic instructional
handbook used by lay leaders of the Church: “young men … who agree to abide by Church
standards” are “welcomed warmly and encouraged to participate” (Handbook 2: Administering the
Church [2010], 8.17.3). This policy applies to Church-sponsored Scout units. Sexual orientation has
not previously been—and is not now—a disqualifying factor for boys who want to join Latter-day
Saint Scout troops. Willingness to abide by standards of behavior continues to be our compelling
interest.
These standards are outlined in the booklet For the Strength of Youth and include abstinence from
sexual relationships. We remain firmly committed to upholding these standards and to protecting and
strengthening boys and young men.
The Church appreciates BSA’s reaffirmation of its commitment to “duty to God,” which includes
service to others and moral behavior—central principles of our teaching to young men. As in the
past, the Church will work with BSA to harmonize what Scouting has to offer with the varying needs
of our young men. We trust that BSA will implement and administer the approved policy in an
appropriate and effective manner.
I am opposed to the proposed change in the Code of Judicial Ethics because it would require me, and
others of my faith, to decline requests from the leaders of my church to serve as a leader in the Boy
Scout program. By following my religious convictions, I would be disqualified to serve as a pro tem
judge. The change in the rules prohibiting me from serving as a pro tem judge, if I am also a leader
in the Boy Scout program, (as part of my religious observance), would interfere with my professional
goals and aspirations. I may some day (after I retire from private practice) choose to serve as a judge,
mediator or arbitrator. Restricting my ability to serve now as a pro tem judge will limit my future
opportunities when I retire from private practice. Simply stated, this proposed change would
interfere with my free expression of religion.
If a change to the judicial canons is required, I recommend that it be one which preserves the freedom
of religion. Perhaps the cannon could be drafted such that Boy Scout leaders, who are called to serve
in that program by their church leaders, could be permitted to serve as judges and pro tem judges.
15. Anti-Defamation League
By Melissa Carr
A
COMMENT:
We write to express our support for the Proposed Amendments to Canon 2C of the Code of Judicial
12
SP14-02
A
Commentator
Regional Director
Newport Beach, CA
Position
Comment
Ethics (“Code”). The amendments would update the Code so that they are consistent with equal
rights advancements in our country and state, and so that they reflect the important principles
contained in the other canons. We believe that this update will promote the integrity of the judiciary
by confirming the prohibition on judges’ membership in organizations that practice invidious
discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual
orientation.
A 101-year old civil rights agency dedicated to fighting bigotry and discrimination of all kinds, the
Anti-Defamation League has long recognized that discrimination against any group threatens equality
for all. ADL has helped lead national efforts to protect the civil rights of members of the lesbian,
gay, bisexual and transgender (LGBT) community. We welcomed the decision to halt the military’s
“Don’t Ask, Don’t Tell” policy, and have since advocated for the elimination of barriers preventing
transgender people from serving their country. Amending the Judicial Ethics to be consistent with the
law in this regard is vital.
ADL has also supported a California law that provides that no state-supported program or activity
may exclude otherwise qualified participants from involvement based on sexual orientation, gender
identity, or religious affiliation. Because some private nonprofit youth groups are still discriminating
based on these characteristics, ADL is advocating for legislation requiring taxpayer-supported private
groups to comply with state laws ensuring equal treatment for all Californians. Canon 2C, as it
currently exists, is incompatible with California law and recent national advancements in civil rights
protections. The proposed amendments to the Judicial Ethics Code would reflect our judiciary’s
embrace of these important civil rights developments.
Moreover, like the Committee, we find the basis for the nonprofit youth organization exception to be
problematic. Because this exception was enacted with the sole purpose of permitting judges to remain
active in the Boy Scouts of America, the judiciary has apparently selected one organization for
special treatment, and such a preference is inappropriate.
16. Apologetics.com
By Harry Edwards
D
ADL therefore supports the changes proposed by the Supreme Court Advisory Committee on the
Code of Judicial Ethics, and thanks the Committee for its leadership. Please feel free to contact us
with any questions regarding our support of these proposed amendments.
COMMENT:
On behalf of myself and Minerva Edwards, we urge rejection of the proposal to amend SP14-02 to
13
SP14-02
A
Commentator
CEO
San Pedro, CA
Position
Comment
require judicial officers to renounce or avoid any affiliation with Boy Scouts of America (BSA).
While ensuring that the judiciary is fair and impartial in rulings from the bench, forbidding judicial
officers from refraining from associations with a long-established and esteemed youth organization
such as BSA is not a compelling interest of government nor is it reasonably related to a legitimate
state interest. Judicial officers are capable of fairness and impartiality notwithstanding private
affiliations with a youth organization such as BSA. For example, judges are permitted to be members
of churches whose ideology, teaching, and practice is not dissimilar to that of the BSA. It is of course
the case that judges of integrity can remain impartial and fair on the bench notwithstanding that their
church teaches that the gay and lesbian lifestyle is morally wrong. All the time they separate their
personal views from their professional duties. Accordingly, the proposed rule change is unnecessary.
Moreover, the proposed rule change would violate the First Amendment rights of judges with respect
to freedom of association, freedom of speech, and free exercise of religion.
Finally, this proposed rule is an offense to common sense and would result in diminishing respect for
the judiciary and the rule of law. We urge its rejection.
17. April
Yucaipa, CA
D
18. Ken Ashton
Porter Ranch, CA
D
COMMENT:
From the article: "prohibits a judge from holding membership in an organization that practices
invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or
sexual orientation , but contains exceptions for religious, military, and nonprofit youth
organizations.". First one would have to determine that an organization is practicing invidious
discrimination - that's a moral not a legal judgment. More importantly however Judges, in their
private lives should be able to join any organization of their choice. This is a matter of free choice
and not them having to adhere to a set of rigid laws that are based on the moral beliefs of the State.
19. Anonymous Attorney
Palo Alto, CA
D
COMMENT:
I am an attorney living and licensed to practice in California for many years and have looked forward
to someday being appointed to serve in the state or federal judiciary in this great State. I am unable to
provide my real name in connection with this comment because of the inevitable retaliation that
would result against me. I respectfully disagree with the Proposed Amendments to Canon 2C of the
14
SP14-02
A
Commentator
Position
Comment
Code of Judicial Ethics (“the Code”) submitted by the Supreme Court Advisory Committee on the
Code of Judicial Ethics (“the Committee”) on these grounds:
1.
The Committee fails to provide supporting evidence to demonstrate that the current version
of the Code has failed to accomplish its intended purpose—for example, evidence that a judge’s
service in a youth organization caused an actual or credible perception of bias to taint her decisions.
Nor has the Committee provided any evidence to support a reasonable conclusion that actual bias or
credible perceptions of bias will taint the credibility of the judiciary if the proposed changes are not
made.
2.
The Committee fails to provide supporting evidence to demonstrate that the proposed
changes will have any appreciable effect on eliminating any bias or perception of bias in the
judiciary—for example, evidence that by renouncing her membership in a youth organization, a
judge’s actual bias or a litigant’s perception of her bias would be eliminated in light of her past
membership in such an organization.
3.
In this unique context of amending the Code to eliminate the prior exception, the proposed
changes would cast an unconstitutional shadow over a current judge or any candidate for judicial
office that previously volunteered with a youth organization.
4.
While the Committee recognizes “that membership in religious organizations is
constitutionally protected,” the proposed changes fail to recognize that active participation in a
particular youth organization is often a vehicle of religious expression and worship, such as where a
Boy Scout troop is sponsored by a local church and where that troop functions as a vehicle for the
religious worship of the youth and leaders in that troop. In such cases, religious activity is
inextricably intertwined with membership in a youth organization. Consequently, the proposed
changes should—at a minimum—be amended to recognize that membership in a youth organization
would not violate the Code where such membership is intertwined with membership in a religious
organization.
5.
The Committee fails to explain why other, less restrictive, amendments to the Code would
not be adequate to remedy the purported problem. For example, in a case where membership in the
Boy Scouts may reasonably be perceived to create a conflict of interest or bias, a judge could remedy
the problem simply by recusal. Why must the entire judiciary be purged of those who volunteer their
15
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A
Commentator
Position
Comment
time and efforts in a youth organization whose official oath requires its members “to help other
people at all times,” whose motto is to “be prepared,” and whose slogan is to “do a good turn daily?”
20. Todd L. Auten
Stockton, CA
A
COMMENT:
I do not feel that Judges should belong to any group that discriminates for any reason. They wouldn't
be allowed to join the KKK so why should they be involved with groups that discriminate on the
basis on sexual identification.
21. Younger C. Avery
Morongo Valley, CA
D
COMMENT:
Many judicial officers serve as BSA leaders--especially among Latter-day Saints. By their BSA
leadership. These judicial officers-- men and women alike provide excellent role models for young
men and women.
There is no evidence that any judicial officer who belongs to BSA has exhibited bias from the bench
on the basis of sexual orientation.
Prohibiting membership in BSA does violence to the ideal of viewpoint diversity among bench
officers. Many such officers have deep and reasonable convictions concerning the morality of
homosexual conduct. But these same officers retain an equally profound commitment to equal justice
for all, regardless of individual sexual orientation. To suggest that these judicial officers cannot act
impartially is intolerant and narrow minder. It is also an insult not only to these judicial officers but
to the American ideals and freedoms that our country was founded on.
22. Jayme Bahouth
Folsom, CA
D
COMMENT:
I know a lot of good Boy Scouts that would make wonderful judges.
23. Robert Bajorek
Burbank, CA
D
COMMENT:
Prohibiting Judges from working with the youth of America is in no way a productive stance. The
Boy Scouts was, is and always be a good for the boys in it, and good for society in general. Depriving
them of input from an effective leader such as a judge is ludicrous. Everyone is so politically correct
today that soon no one will be able to do anything.
24. Inga Barks
D
COMMENT:
Dear Sir, I am writing to submit a comment in opposition to the new recommendation regarding the
memberships of Judges in non-profits and youth organizations that offend the politically correct.
16
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A Commentator
25. Bay Area Lawyers for Individual
Freedom (BALIF)
By On Lu and Jamie Dupree
San Francisco, CA
Position
Comment
A
COMMENT:
We write on behalf of Bay Area Lawyers for Individual Freedom ("BALIF") in support of the
Proposed Amendments to Canon 2C recommended by the Supreme Court Advisory Committee on
the Code of Judicial Ethics (the “Advisory Committee”).
BALIF is the oldest and largest bar association of lesbian, gay, bisexual and transgender attorneys
and legal professionals in the United States. BALIF represents approximately 700 San Francisco Bay
Area judges, lawyers, law students and legal workers. BALIF works to promote and achieve equal
justice for all and to oppose discrimination in all its forms, including discrimination based on sexual
orientation, through the work of its board of directors, its committees, and collaboration with the
other three dozen organizations in the Minority Bar Coalition.
The California Code of Judicial Ethics ("Code") in Canon 2C provides that no judge shall hold
membership "in any organization that practices invidious discrimination on the basis of . . . sexual
orientation." BALIF urges the court to eliminate (1) the nonprofit youth organization exception and
(2) the official military organization of the United States exception to Canon 2C as recommended by
the Advisory Committee.
The Boy Scouts of America ("BSA") continues to maintain its discriminatory policy of excluding
gay, lesbian, bisexual and transgender ("LGBT") adults from participation in BSA clubs. The BSA's
current adult leadership standard, as set forth on the BSA's website (www.scouting.org) states in
relevant part as follows:
While the BSA does not proactively inquire about sexual orientation of employees,
volunteers, or members, we do not grant membership to individuals who are open or
avowed homosexuals or who engage in behavior that would become a distraction to the
mission of the BSA.
As the Code notes, membership in an organization that invidiously discriminates gives rise to the
perception that a judge's impartiality is impaired.
There can be no doubt that the BSA invidiously discriminates in light of its stated policy of excluding
LGBT adults ("open or avowed homosexuals") from participation in BSA member organizations.
Membership in an organization that concludes LGBT people are mentally unfit, morally unclean and
17
SP14-02
A
Commentator
Position
Comment
a danger to children demeans the judicial office. As the Advisory Committee Commentary to Canon
4A states, expressions of bias or prejudice include remarks that "demean individuals on the basis of a
classification such as their . . . sexual orientation," and the judicial office is thereby demeaned by a
judge's membership in an organization that espouses such bigoted views. A judge's membership in a
discriminatory organization such as the BSA interferes with the proper performance of judicial duties
by creating an appearance of prejudice and bias, and stigmatizing LGBT parties, counsel, witnesses,
jurors, court personnel and fellow judges.
The proposed amendments to Canon 2C reaffirm the judiciary's commitment to fairness, impartiality,
the dignity of the court, and the respectful treatment of all who appear before it. No judge should be
permitted to participate as a member of any organization, whether it is the BSA or the military that
invidiously discriminates on the basis of sexual orientation. For these reasons, we urge the court to
adopt the proposed amendments to Canon 2C.
Thank you for your attention to this important matter. If anyone has questions about BALIF’s
support of the proposed amendments to Canon 2C, please feel free to contact the undersigned.
26. Wendell Baker
Moraga, CA
A
COMMENT:
I am the Scoutmaster for a troop in California. The current corporate leadership of the Boy Scouts of
America is misusing the organization to promote their anti-LGBTQ agenda. I hope this stops soon
but until it does the State should not be making any special accommodations for the BSA.
27. Donald Bakke
Placentia, CA
D
COMMENT:
The desire to encourage and enforce impartiality among court officials is a noble and important task.
However, this goal should never require judges to worry about their sincerely held beliefs or worry
about their association with others of like-minded values. We should not devolve into the "thought
police" practices of other nations and reinforce our commitment to measuring one's performance
based on their actions.
28. Blair Ball
Beaumont, CA
D
COMMENT:
I have been a youth member as well as an adult leader of BSA for several decades. I disagree with
the proposal to eliminate judges from being associated with BSA. They, along with others, are good
role models for these youth. I don't know of any evidence that exists that these judges would be
biased in hearing cases while maintaining an affiliation with BSA. If that is the case with BSA then
18
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A
Commentator
Position
Comment
it would also be the case with virtually any and all other organizations with which judges associate. I
do not agree with the proposed changes.
29. Alisa Barlow
Camarillo, CA
D
30. Corrine Barlow
Camarillo, CA
D
COMMENT:
I disagree with a proposal that would prohibit judges from volunteering in the BSA. This proposal is
not in the best interest of the people. The Judicial system is there to serve the people. The BSA has a
long history of teaching civic responsibility and judges play an important role in that mission.
31. Don Barnby
Menlo Park, CA
A
COMMENT:
I am writing to support the change of judicial code (SP14-02) in favor of eliminating the exception
that currently allows judges to belong to the Boy Scouts of America.
I am an Eagle Scout of 65 years standing, and was proud to be so for many years before BSA turned
hard-right and entrenched homophobia into its culture. If there are judges who support the “brown
shirt” thinking of today’s BSA through their membership in the organization, then I don’t believe
they belong on the bench.
32. Cynthia Bartlett
Lake Forest, CA
D
COMMENT:
This proposal is a disturbing attack upon religious liberty and freedom of association and I strongly
oppose this proposal that is another step toward the erosion of the freedoms upon which our nation
was founded.
33. William Bartlett
Lake Forest, CA
D
COMMENT:
Please receive this response as registering great concern about overreach as the California Supreme
Court Advisory Committee on the Code of Judicial Ethics seeks to amend the Code preventing a
judicial office from membership or affiliation with the Boy Scouts of America on three grounds:
1.
The free exercise clause of religion is threatened. Our nation was founded with a
commitment to tolerance of religious expression and assembly (including membership). There are
sufficient ethical safeguards in place to determine if a judge oversteps legal protections guaranteed to
individuals.
2.
The proposed change in the Code of Judicial Ethics discriminates against judges and harms
19
SP14-02
A
Commentator
Position
Comment
the reputation of BSA, a longstanding, respected, and wholesome non-profit youth organization.
3.
The proposed change in the Code of Judicial Ethics is an overreach which, if logic is
followed, could lead to discrimination against religious beliefs, practices, expression, and affiliation
which have all been foundational to our nation’s development. What would prevent, following the
logic behind this proposed change, disqualification of all lawyers, disqualification of all public school
teachers, disqualification of all civil servants and government workers who belong to religious bodies
(Christian, Jewish, Muslim, other) which hold to a belief which does not align with legal protections
guaranteed to individuals?
Our nation is unique in its practice of tolerance in that it has been able to embrace religious freedom
and at the same time guarantee legal protections to all its citizens. The proposed Code of Judicial
Ethics changes would release this embrace and set the whole matter on a dangerous slippery slope
which would diminish one of the cherished shining lights of our nation.
34. Bonnie Bastian
El Dorado Hills, CA
D
35. Charles Baugh
Kitty Hawk, NC
D
COMMENT:
Sodomy does not make you a parent. It is a choice of selfishness that is a very much a war on
women. It denies the next generation a mom and dad and their best chance at a good life. For shame
for your hateful selfishness against an institution that truly loves boys and wants to help them have a
good life with their own family!
36. Dan Beard
Sacramento, CA
D
COMMENT:
Sounds like your proposal is intolerant.
37. Dan Beatty
Placerville, CA
D
COMMENT:
I emphatically am in disagreement with this proposal.
38. Tyler Belong
San Diego, CA
D
COMMENT:
The proposal appears to be a politically-motivated aim at discouraging judicial membership in highly
regarded organizations such as the Boy Scouts of America. I suspect there is not a proponent of this
proposal who could refute its political design. Furthermore, the amendment is unnecessary, as the
rules already require a judge to recuse herself or himself from presiding over a case involving a
litigant in which the judge has an interest.
20
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A
Commentator
39. Aaron Beutel
Huntington Beach, CA
Position
D
Comment
COMMENT:
How ironic that REAL bigotry is being displayed to persecute judges by claiming bigotry falsely.
A. Many judicial officers serve as BSA leaders--especially among Latter-day Saints and other
religious groups, who accept this role as a matter of religious duty. By their BSA leadership, men and
women alike, provide excellent role models for young men and women.
B. There is no evidence that any judicial officer who belongs to BSA has exhibited bias from the
bench on the basis of sexual orientation.
C. Prohibiting membership in the BSA does violence to the ideal of viewpoint diversity among bench
for all, regardless of individual sexual orientation. To suggest these judicial officers cannot act
impartially is intolerant and narrow-minded.
40. Adam Beutel
D
COMMENT:
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A Commentator
41. Angela Beutel
Position
Comment
D
COMMENT:
42. Debra L. Benjamin
Cypress, CA
D
43. Jeffrey S. Bostwick
D
COMMENT:
See attached pdf.
44. Celeste Bowden
Manteca, CA
D
COMMENT:
I disagree with this proposal.
45. Marshall K. Berger, Jr.
Hartford, CT
A
COMMENT:
I am currently, and have been for over twenty five years, a general jurisdiction trial judge for the state
of Connecticut. I have attached to this email a copy of a letter I mailed to Wayne Brock, Chief Scout
Executive on June 13, 2013 setting forth my reasons for resigning from the Boy Scouts of America. I
believe my letter speaks to and endorses your proposal to revise Canon 2C to eliminate the nonprofit
youth organization exception.
See attached pdf of Brock letter.
46. Elaine Binder
D
COMMENT:
22
SP14-02
A
Commentator
Alhambra, CA
Position
Comment
The arguments of increased integrity, impartiality, and public confidence in the judiciary imply that
integrity comes with non-membership in an organization. Integrity (honesty, uprightness) instead is
part of personal character, regardless of affiliations.
Personally I admire those men who are giving their free time to serving the community. They are
concerned with the future wholeness of the next generation, rather than pursuing their own goals.
Judges in particular model achievement and high standards, wisdom and concern for fairness to all
parties.
The current exception for non-profit youth organizations is clearly written to accommodate both
judges who are leaders, advisors, or volunteers and lawyers or their clients who would ask a judge to
disqualify himself.
47. George Binder
Glendale, CA
D
48. Alfredo Bismonte
San Jose, CA
D
COMMENT:
See attached pdf.
49. Paul Blaze
Irvine, CA
D
COMMENT:
This is an attack on religious freedom and freedom of association.
50. Karen Boase
Monrovia, CA
D
COMMENT:
I believe the proposed changes may negatively impact a judge's right to freedom of religion and
freedom of association.
51. Pete Borboa
Los Angeles, CA
A
COMMENT:
It makes sense to me that California Supreme Court would ban judges from belonging to groups that
discriminate on the basis of race, gender, religion and sexual orientation. What does not make sense
is the exception to this ban for nonprofit youth organizations that discriminate. Thank you for being
consistent with logic and ethics.
52. Matthew Bouslog
Irvine, CA
D
COMMENT:
What's next? Banning judges from affiliating or volunteering in a religious organization that does
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A
Commentator
53. Boy Scouts of America
By Albert Monge
Moreno Valley, CA
Position
Comment
not endorse homosexuality? The fact that this rule is even being considered is absurd.
D
COMMENT:
While the proposal is understandable, it is, in my opinion, another method at striking out against the
Boy Scouts of America. Ever since the United States Supreme Court ruled in favor of the Boy Scouts
of America many organizations and government officials have attacked the Boy Scouts of America
for exercising its rights as a non-profit organization. Organizations such as the ACLU and
government officials have sent many lawsuits and harmful law changes that the federal government
had to once again intervene on behalf of the Boy Scouts of America with the Boy Scouts equal access
act and the support our scouts act. Both of these acts were favored by the grand majority of congress.
Our troop has a scout master that is a superior court judge and has been for many years. I do not
believe that him being a scout master is in conflict with his duties as a superior court judge. The scout
law which all scouts, both youth and adults live by are that a scout is trustworthy, loyal, and obedient
all of which signify that even if a judge were a manner is the Boy Scouts of America, it would be his
duty to be trustworthy to follow all of the precepts set for all judges. He would be loyal to the judicial
system by showing impartiality as all judges are required to do. He would be obedient to all the rules,
laws, and regulations set forth by the judicial branch of government. The scout oath states "On my
honor, I will do my best to do my duty to God and my country and to obey the scout law" I believe
that any judge will be abandoning the very core principles of scouting if he were to begin being
partial based on his participation in scouting. The Boy Scouts of America has a very rich history in
our country, serving for over 100 year by preparing boys and young men to be the best they could be.
Many influential figures including United States Presidents like John F Kennedy, Lyndon B Johnson,
Gerald R. Ford, James E. Carter Jr., and Ronald W Reagan have served the Boy Scouts of America
and some were scouts themselves yet this did not negatively impact their service as presidents. I
believe it is unfair to force judges to give up being a part of something they love and enjoy solely
because of the perceptions that they might be unfair in the courtroom. I do not believe that an
organization that has done so much for our country for such a long time deserves the type of
malicious backlash it has been receiving over the past few years from our government. From the first
lawsuit in 2000 to the recent California bill that would strip the tax exemptions of the Boy Scouts of
America simply for using the right they have as a private, non-profit organization that was backed by
the United States Supreme Court, The Boy Scouts of America have endured some of the harshest
attacks an organization's have. This proposal would take away our scout master who has helped make
our troop one of the best in Southern California for over 90 years, our troop has been making a
difference in boy's lives and if this proposal is approved, it is not the adults who will suffer for it but
24
SP14-02
A
Commentator
Position
Comment
our boys. For every time an attack is successfully launched against the Boy Scout, it is the boys who
suffer from it. In conclusion I would ask that you please not allow this proposal, please do not take
our scout master away from us. We need him just as much as the courts do. Thank you for accepting
my comments.
54. Sterling Brennan
Irvine, CA
D
COMMENT:
I have been a practicing member of the bar for nearly 28 years and an active adult leader in the Boy
Scouts of America for much of that same time period. My activities in the BSA have largely been
rooted in the longstanding affiliation between my religious faith and BSA. Indeed, the bulwark of
BSA sponsors has been various religious faiths who have partnered with BSA to provide an activity
base to their youth programs. Moreover, much of my service in BSA -- including my current work -comes as the result of an assignment from my faith's leaders. Under this proposal, I would not be
permitted to serve as a judge in California (although I expect I might otherwise qualify for such
service), and for my many colleagues who are sitting judges they would not be permitted to continue
as such -- unless religious obligations were forsaken and refusal was made to serve or support the
BSA. This would constitute an infringement and impairment of my and their rights of religious
liberty guaranteed by the Constitution. The premise of the proposed rule must be that because I or a
sitting judge supports the BSA I or the judge must therefore be bigoted or biased. I reject that
premise. And so should the California Supreme Court.
55. Jerry Bressler
Fremont, CA
D
COMMENT:
This proposal and rule is utter non-sense, and really discriminatory against people's right of Freedom
of Assembly as noted in The US Constitution's Bill of Rights, First Amendment. Screw these "antidiscrimination" advocates. It's them that are seeking to discriminate, in the name of "Antidiscrimination". They are making many to believe that they stand for The Freedoms as protected in
the US Constitution, but they are really sneakily, and systematically, undoing these freedoms by the
use of the pen. Please don't fall for the trap. I understand that their approach is to take baby steps,
incrementally, pushing their agenda of intolerance of the freedoms many Christians and others have,
such as freedom of conscience. It's too bad, but this must be stopped. Please reject the proposals. And
do more than just that actually go on the offense against this kind of attacks on our Freedoms, as
enshrined in the highest law of the land, The US Constitution. Many Americans and other nations are
counting on you to do the right thing. Protect our freedoms!
56. Hon. Kyle Brodie
A
COMMENT:
25
SP14-02
A
Commentator
Fontana, CA
Position
Comment
For what it’s worth, I think the proposed amendment to canon 2(c) currently under consideration is
entirely appropriate. The original exemption of nonprofit youth organizations cannot be defended in
any principled manner, and the committee report has it exactly right: “the exception was developed in
1996 to accommodate judges who were members of or active in the BSA. Effectively selecting one
organization for special treatment is of particular concern, especially in light of changes in the law in
California and elsewhere prohibiting discrimination on the basis of sexual orientation.” “Particular
concern” understates it. I defy anyone to make a coherent argument about why the Boy Scouts of
America should be treated differently from, say, a country club. If that argument can be made, I
haven’t heard it.
I would submit, however, that the reference to “military organizations” might stand on different
footing. The committee states that “the exception is no longer needed.” And that’s true, given the
passage of the Don’t Ask, Don’t Tell Repeal Act of 2010. However, isn’t it also true that the
military’s policies could change back again? And if those policies change, the United States military
stands in a different place than nonprofit youth organizations. I am glad that our military no longer
actively discriminates on the basis of sexual orientation, but suppose the political winds blow
differently in 2016, and some sort of discrimination returns? What then? I suppose the response could
be, “Well, then we’ll have to take another look at canon 2(c),” which is fair enough. But until then,
would a judge need to immediately cease any involvement with the military? Would that even be
possible? I don’t know the answers to those questions, but I do think they are worth asking.
57. Patrick Bowen
Rocklin, CA
D
COMMENTS:
I do not support the proposed amendment to Canon 2C directed to affiliation with the Boy Scouts of
America.
First, the proposed amendment creates the appearance the canon will be modified because of popular
political feeling, rather than to eliminate judicial participation in discrimination. The proposed
amendment is specifically focused on the Boy Scouts' adult membership policies; however, Boy
Scouts policies have, for more than 100 years, substantially limited female participation. Females
cannot register as Boy Scouts or Varsity Scouts, by far the two largest Scout programs. Smaller
Scout programs (like Venturing) do allow female participants but these programs do not include Boy
Scout rank advancements, including Scouting's highest youth award (the Eagle Scout rank), for
female participants. Effectively, the Boy Scouts are an organization that serves boys, not girls. From
what I have read about the pending amendment, it does not appear that this sex disparity in youth
26
SP14-02
A
Commentator
Position
Comment
membership has been a concern to the Committee, although it would appear to be far more limiting
than the Boy Scouts' current adult membership restrictions. Accordingly, amending the canon in the
proposed manner may give the impression that the Committee has focused on a current political
issue, rather than one of fundamental fairness. I do not believe the Canons should reflect social or
political commentary; the proposed action may do just that.
Second, the largest chartering organization for the Boy Scouts (by number of units chartered) is the
Church of Jesus Christ of Latter-day Saints. LDS Scout units are chartered and overseen directly by
ecclesiastical leaders; men and women who serve as adult leaders for those units are assigned to do
so by their ecclesiastical leaders. Most LDS members believe they have a religious obligation, as
part of practicing their faith, to accept those assignments when made, and to fulfill them to the best of
their ability. The Boy Scout programs are the LDS programs for church young men in the United
States and participation in is understood by boys and adult leaders alike to be a part of living out their
faith. Similar circumstances may be a part of other religious organizations and their Scout groups.
Although the proposed amendment is directed to the Scouting organization and not to any particular
church, for many Californians, Scouting is a component of their religious life. I do not believe the
Canons should knowingly create standards which appear incompatible, at once confirming religious
freedom but also imposing prohibitions on religious exercise for some California judicial officers.
Another commenter has expressed that the Canons should prohibit judges from doing things that
reveal or endorse bias or are otherwise disreputable, rather than attempt to regulate their membership
in groups based on criteria such as only group membership requirements. The commenter
also suggested concerns about impartiality are better handled by appropriate disclosures (with
concomitant disqualification or recusal, when appropriate), rather than categorical rules which are
intended to target specific group membership. I agree with those comments.
58. Steve Bowen
Seeley Lake, MT
D
COMMENT:
With all due respect to the integrity and non-bias of the Judicial branch of California's government, I
disagree with the proposed Ethics Committee's recommendation to bar all judges from membership
in certain organizations which have been identified (incorrectly in my mind) as discriminatory. In
particular I disagree with the specific recommendation that any Judge who volunteers his/her services
to the Boy Scouts of America (BSA) be required to relinquish/drop that membership affiliation or
resign from the bench.
27
SP14-02
A
Commentator
Position
Comment
The feeling of the Ethics committee is that the Boy Scouts discriminate against gays. In reality the
Boy Scouts of America have made a significant shift in policy towards gay membership by allowing
openly gay youth to be members. The concern that adult gay inclusion has not been resolved to the
satisfaction of the Ethics committee now appears to be the question. I guess the reasoning is that if a
Judge is a member of the BSA that they will forever be tainted (or perceived as such) in their views
towards any case involving a member of the gay community. If this is the case would it not also be
reasonable to apply the same restrictive criteria to Judges who hold adult membership in the Girl
Scouts of America (they do not allow boys in their youth program), belongs to a religious group
which is non acceptive of other religions and even professes globally such beliefs (Muslim vs.
Jewish, Muslim vs. Hindu, Christian vs. non Christian, etc) [and it should be asked, why even should
the area of religious membership be exempted from this new Ethics Code change?], Soroptimist Club
(women only service club), numerous charitable eco-conservation or animal rights groups who
discriminate against allowing membership to those who do not fully subscribe to all of their tenets),
and Judges who are former members of the US military and who now belong to Veteran's support
groups (over hearing a case involving a non veteran or suspect in an anti-military/cemetery protest).
I believe that the quality of a Judge has its bases (or should be based) on that individual's character
and integrity. I would want to believe that all Judges have the common sense and forthrightness to
know when to recluse themselves from a case where there is a possibility of a conflict of interest or
any question of their neutrality or non bias to the issues of the case.
It appears that the fine line your Ethics Committee is trying to walk here is to make the Judiciary as
transparent as possible. This is a noble cause, but how can a society which puts so much emphasis on
the value of our individual difference expect to "cookie cut" a full judiciary ‘sic” into one mold. It
will never be possible to remove every like or dislike that anyone person so they agree with the rest
of society.
Give your Judges some credit, don't enact this new caveat into your Ethics Code, rather impress upon
your Judiciary that it is their responsibility to recluse themselves at the slightest hint of conflict to a
case. Society (our youth and the other benefactors of a Judges volunteerism) need them to have
opportunity to associate with these quality adults. (Note: I lived in California for over 40 years and
have only in the last 7 months retired and moved out of state).
59. David Boyle
Long Beach, CA
D
COMMENT:
This proposal is a bad idea for innumerable reasons. First off, it sends the signal that homosexuality
28
SP14-02
A
Commentator
Position
Comment
can never possibly be an issue in youth groups or their leadership. However, it may be perfectly
rational to wonder if a youth leader telling people, "There's nothing wrong with sodomy, everybody
should enjoy it, it's not illegal", may really be the best leader of youth. If the proposal passes, it
would now be easier for a judge to be a member of NAMBLA (a group advocating legalized
pedophilia) than to be a member of the Boy Scouts!! Absurd.
Second, the Boy Scouts in particular have recently made huge efforts (more than some people believe
are appropriate...) to include gays, allowing young gays to be members, though Scout leaders cannot
be gay. As a "reward" for their opening up to gays, proposal SP14-02 will now not let the Scouts
have any judges associated with them. With that kind of treatment, one is surprised that the Scouts
opened up to gays in the first place.
SP14-02 may be well-meant, but that does not change its destructiveness. Please stop it. Thank you.
60. William D. Bradbury
Tiburon, CA
D
COMMENT:
Prohibiting judicial officers from participating in youth organizations based on the organization's
political position is a waste of resources in the task of developing character, leadership, and
confidence among California's youth.
While organizations such as the BSA may have a policy regarding youth leaders publicly
acknowledging their homosexuality, it is somewhat ridiculous to bar judges from participating as it is
also BSA's policy not to have outward expressions of sexuality or sexual based conduct by
heterosexual adults. Sexuality has nothing to do with the BSA program.
Please allow judicial officers to continue helping this state's youth. Organizations such as the Boy
Scouts may be slow in changing policies, but they have strong institutional backgrounds to support
youth development that can help the most impoverished to the most affluent youth (Remember - BSA
provides services to both boys and girls).
If you would like me to discuss this with anyone further, please do not hesitate to contact me.
61. Matthew Bradford
Stockton, CA
D
COMMENT:
This proposed rule is absurd. Shame on the Council for even proposing such a ridiculous rule. The
BSA is not and has never been about antagonizing or harming any group including homosexuals.
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A Commentator
62. Seren Bradshaw
Westwood, CA
Position
Comment
A
COMMENT:
Close the loophole that allows non-profit youth organizations, such as the Boy Scouts, to
discriminate. Discrimination is never justified and doubly so when dealing with our youth. What kind
of message are we sending to these boys?? That discrimination and special privilege are their right??
Please think again and close the loophole.
63. Hon. Angela Bradstreet
San Francisco, CA
A
COMMENT:
I remember vividly the voluminous hate mail, threats of harm and deportation that were hurled at me
from all over the nation when, as the 2002-3 president of the San Francisco Bar Association, I led a
statewide effort seeking elimination of the nonprofit youth organization exemption in Canon 2 C
which, a decade later, the esteemed Supreme Court Advisory Committee on the Code of Judicial
Ethics has unanimously recommended be removed. BASF was joined at the time by the Santa Clara
Bar Association and the Los Angeles Bar Association, among others .Our concern was the duty of a
judicial officer under the rules of ethics to avoid the perception or appearance of bias at all times. Just
as a judge may not be a member of an organization that individually discriminates on the basis of
gender, ethnicity, race or national origin, he or she similarly cannot be a member of any organization
that invidiously discriminates on the basis of sexual orientation. The Boy Scouts of America does
much wonderful work. That, however, is not the point. There is no rational basis for singling out the
organization for special and differential treatment in the canons. Since it continues to practice
invidious discrimination against a classification that is specifically protected in the California Canons
of Ethics, (as it is in 21 other states), judges cannot be members. Kudos to the Committee for
recognizing that the judiciary’s duty to avoid any perception of bias at all times is fundamental to the
integrity of the profession and to the administration of justice.
64. Austin Brane
San Diego, CA
D
65. Joseph P. Brannigan
San Diego, CA
D
66. Richard Brenner
Los Gatos, CA
D
COMMENT:
I am a very concerned citizen writing to you regarding this proposed change in the current Canon.
How would banning judges from building our future leaders help anyone? How many of you serving
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Comment
on this review committee have been touched by the BSA in your lives? I would suggest that a
majority of you reviewing this have had good experiences through whatever way the BSA touched
your lives. There are many leaders in the BSA who serve on benches of local, state, and federal
benches. They would not like to give up their participation, but will be forced to do so if you
specifically state that the BSA is not approved.
In any event, I believe that if you decided to modify the Canon, the BSA would not be an
organization that Judges should be excluded from participating with. The revised membership
standard of the BSA was adopted in May, 2013, and made effective on January 1, 2014. Per this
standard, no youth under the age of 18 may be denied membership in the BSA for any reason,
including sexual preference, race, creed or color. In fact, sexuality of any sort does not have any
place in the BSA program. Adult leaders who elect to make their sexual preference known, whether it
be heterosexual, gay, lesbian, or transgender, have no place in our program. We want to simply build
OUR country's leaders of tomorrow, teach them how to have ethical decision making skills, good
citizenship and tolerance for all.
Please, Please, do not change your canon to specifically single out the BSA, and prevent judges from
participating as leaders.
What about the Girl Scouts? What about the YMCA or the YWCA? If their leaders allowed sexuality
to be any part of their teachings, they would not be welcome as leaders under your canon, but they
are not specifically singles out in the text of the proposal. It is discriminatory to single out the BSA,
especially since the BSA does not discriminate against any youth wishing to join the program.
I hope this is helpful in your deliberations.
67. Ken Brown
San Diego CA
D
COMMENT:
I respectfully but strongly object to the proposed changes to the Code of Judicial Ethics. Many
judicial officers serve as BSA leaders—especially among the Church of Jesus Christ of Latter-day
Saints, who accept this role as a matter of religious duty. By their BSA leadership, these judicial
officers—men and women alike—provide excellent role models for young men and women. There is
no evidence that any judicial officer who belongs to BSA has exhibited bias from the bench on the
basis of sexual orientation. Prohibiting membership in BSA does violence to the ideal of viewpoint
diversity among bench officers. Many such officers have deep and reasonable convictions concerning
the morality of homosexual conduct. But these same officers retain an equally profound commitment
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Commentator
68. Patricia Brown
Fresno, CA
Position
Comment
to equal justice for all, regardless of individual sexual orientation. To suggest that these judicial
officers cannot act impartially is intolerant and narrow-minded. I ask that you reject the proposed
changes and not prejudice against good, moral judges who are affiliated with the Boy Scouts of
America
A
COMMENT:
Dear Members Of The Advisory Committee On The Code Of Judicial Ethics,
I urge you to support a proposal to prohibit state judges from belonging to organizations,
such as the Boy Scouts of America, which discriminate against lesbian, gay, bisexual or
Transgender (LGBT) people.
The Boy Scouts recently approved letting LGBT young people, under the age of 18, belong
to the Boy Scouts, but it still prohibits older LGBT people from serving in leadership
Positions in the Scouts.
As you must know, there is growing acceptance of LGBT people throughout the nation.
They are now allowed to marry in 17 states, and the District of Columbia, and no less an
authority than the US Supreme Court has ruled that the federal government must
Recognize those marriages. As it happens, 17 states, and the District of Columbia, also ban
Discrimination against LGBT people.
The Boy Scout oath, which must be taken by all Scouts, includes the pledge to be "morally
Straight". I and a growing number of Americans believe that discrimination against LGBT
people is immoral. And Judges, when they join the Scouts, or serve in scouting leadership
positions, are, in effect, expressing support for that immoral policy.
For all these reasons, I believe judges should not associate themselves with the Boy
Scouts or other organizations that discriminate against LGBT people. I urge you to support
the proposed ban on judges joining such organizations.
P.S. I am a straight mother and a Girl Scout off and on for 33years. Both my 18-year-old
daughter and I are registered Scouts, was a leader for seven years, and she started in
Daisys when she was four. I am also a Family Law attorney for the last 20 years and, as
such, am a mandatory reporter for any molestation or abuse I may witness. First, let me
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Commentator
69. BSA
By James Thomas
ASM
Brea, CA
Position
Comment
say that some people confuse gay and lesbians for molesters, which is not the same thing
necessarily. Second, my daughter and I went to many Girl Scout camps where lesbian
mothers were out of the closet and welcomed without incidents. Thirdly, back in the1970s I
was blacklisted from the Rainbow Girls because I took a stand on wanting them to admit
Latina and black girls; today both groups are welcome in Rainbow girls. Equality is not just
something that happens. It happens because individuals take stands that we want to be a
part of a tolerant society. That is why I am supporting this strong stance against
discrimination.
D
COMMENT:
Many judicial officers serve as BSA leaders—some who accept this role as a matter of religious duty,
which then leads to our California Judicial system violating First Amendment guarantees of the
Constitution. Through their BSA leadership, religious judicial officers and community leaders—men
and women alike—provide excellent role models for young men and women in our society and
should not be discriminated against by our California Judicial system.
Prohibiting membership in BSA destroys the concept of viewpoint diversity among bench officers
leading to intolerance and narrow-mindedness.
70. Dr. Donald G. Buchanan
Redlands, CA
D
Many such officers have deep and reasonable convictions concerning the morality of homosexual
conduct established in religious teachings and practices. Homosexual judges in this state have given
biased decisions and created division within the population they serve in California and across the
nation, over ruling voter's rights.
COMMENT:
Many judicial officers serve as BSA leaders—some who accept this role as a matter of religious duty,
which then leads to our California Judicial system violating First Amendment guarantees of the
Constitution. Through their BSA leadership, religious judicial officers and community leaders—men
and women alike—provide excellent role models for young men and women in our society and
should not be discriminated against by our California Judicial system.
Prohibiting membership in BSA destroys the concept of viewpoint diversity among bench officers
leading to intolerance and narrow-mindedness.
Many such officers have deep and reasonable convictions concerning the morality of homosexual
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Position
Comment
conduct established in religious teachings and practices. Homosexual judges in this state have given
biased decisions and created division within the population they serve in California and across the
nation, over ruling voter's rights.
Instituting homosexuality in our legal system is intolerant and demonstrates bullying from the court
bench. BSA affiliated judicial officers retain an equally profound commitment to equal justice for all,
regardless of individual sexual orientation. To suggest that these judicial officers cannot act
impartially is intolerant and narrow minded on the part of our own Judicial system.
71. Stephanie Bullock
Petaluma, CA
A
COMMENT:
The elimination of the military exception is obvious. With regard to the elimination of the sexual
orientation exception, I feel this is appropriate in light on the ongoing evolution in our laws and
public sentiment regarding the elimination of discrimination and expanding of rights for members of
the nonheterosexual community.
72. Richard Bunn
Irvine, CA
D
COMMENT:
The current proposal appears to be based upon the completely false (if not to say bizarre) proposition
that the integrity of the judiciary is being compromised by teaching a bunch of little kids how to
enjoy the great outdoors.
Is there even a shred of evidence that the citizens of California have lost confidence in the judiciary
based on this issue? Are there any cases known to the committee where a judge's involvement in
scouting has caused justice to miscarry?
The proposed changes have been considered twice before and rejected. From then until now the sky
has not fallen. There is no reason to reconsider this now. Furthermore, adopting a pose of
implacable hostility to a bunch of little kids who like camping will hardly burnish the repute of the
judiciary, but rather stain it.
73. Alex Burke
Santee, CA
D
COMMENT:
I strongly oppose the proposed amendments to Canon 2C on the Code of Judicial Ethics. The
Committee purports that eliminating the exception for a judge to hold membership in the BSA would
“enhance public confidence in the impartiality of the judiciary.” I disagree with the committee’s
position. And encourage them to leave the exception as written.
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Commentator
Position
Comment
As stated in the proposed amendment.….”the committee agreed that eliminating the exception,
thereby prohibiting judges from being members of or playing a leadership role in the BSA, would
enhance public confidence in the impartiality of the judiciary.” The question I ask myself is, “Do I
feel more confidence in the impartiality of the judiciary if a judge is prevented from also being a
member of BSA?”
The answer….No, I do not. Since the “public” is made up of so many opinions that do not agree,
stating that “public confidence will be enhanced” by the change in this code appears presumptive,
because all public confidence would not be enhanced.
The reasoning and rationale of the proposal seems backward. I would have full and absolute
confidence in the integrity of a judge to be impartial in his/her ability to adjudicate, precisely for the
very reason that they are a member of BSA. The integrity and moral character of this judge is such
that he/she would demand from themselves the utmost impartiality of their judiciary responsibilities.
In contrast, my confidence in the impartiality of the judges who serve on the Advisory Committee is
compromised because the amendments actually create the appearance of a bias against any judge
who holds BSA membership. If an individual takes issue with what they believe to be the impartiality
of a judge because of their membership in BSA, or any other potential for conflict of interest, there
are already provisions in the Code of Judicial Ethics that facilitate refusal of a judge in this type of
circumstance.
I am also perplexed as to why the Honorable Judges of the Advisory Committee on the Code of
Judicial Ethics, would appear to promote an amendment which infringes upon the First Amendment
rights of a judge. The proposed amendments would prohibit any judge who is a member of a
religious organization from accepting various church callings or assignments. For example, the
scouting program is an integral part of The Church of Jesus Christ of Latter-Day Saints. Passage of
the amendment means an LDS judge would be banned from serving as a Scoutmaster, an Assistant
Scoutmaster, a Cubmaster, an Assistant Cubmaster, or a Den Leader, as these are all callings of a
religious nature within the LDS community. This amendment would also impact judges who are
members of any other denominations that support scouting, including Catholics, Jews and
Presbyterians, etc. The proposed change in the exception to Canon 2C would violate the right of a
judge to his or her freedom of religion.
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Comment
For these important reasons, I believe that the proposed changes to the Canon of Judicial Ethics
should not be adopted, with one exception for the removal of the military exemption only.
74. Travis Burke
San Diego, CA
D
COMMENT:
Any individual has life experiences that make him or her biased. The organizations that an individual
belongs to in their personal life should not exclude them from participating in a case because of so
called impartiality. As an example, Judge Vaughn Walker was the presiding judge over California's
Proposition 8 in 2008. He later came out he was gay and people tried to have his decision vacated. It
was ruled that ""the presumption that Judge Walker, by virtue of being in a same-sex relationship,
had a desire to be married that rendered him incapable of making an impartial decision, is as
warrantless as the presumption that a female judge is incapable of being impartial in a case in which
women seek legal relief" (U.S. District Court Judge James Ware) and his ruling was not vacated. Just
as Walker was able to be unbiased, people who are affiliated with organizations such as The Boy
Scouts of America or the military are also able to be just as unbiased and, therefore, they should not
have to remove themselves from being a judge. This penalizes their right to freedom of association
and freedom of speech.
75. Tom Burnett
D
COMMENT:
It is my understanding the U. S. Supreme Court has adjudicated the Boy Scouts of America's policy
on gays is not discriminatory.
But, should you decide to prosecute this proposal, you must remember, according to your state's
policies, other violations:
the Girl Scouts do not accept male youth; (sex discrimination)
neither organization allows adults to advance in rank as do their youth members; (age
discrimination)
neither organization allows youth to be on the units' committee; (age discrimination)
churches and synagogues will not accept atheists; (religious discrimination)
Catholics will not accept anyone non-Catholic; (religious discrimination)
Jews will not accept anyone non-Jewish; (religious discrimination)
Mormons will not accept any non-Mormon; (religious discrimination)
Elks Club will not accept any non-believer; (religious discrimination)
Shrine Clubs will not accept any non-believer; (religious discrimination)
Masonic Clubs will not accept any non-believer; (religious discrimination)
Democratic party will not accept Republicans; (political discrimination)
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Position
Comment
Republican party will not accept Democrats; (political discrimination), AND,
Many of the above will not accept or hire convicted felons.
So, do the right thing and make the above policies illegal!
76. Richard Buksa
Long Beach, CA
A
COMMENT:
Loopholes are generally bad. This loophole to allow judges to participate in an organization that
discriminates against homosexuals of any age, is not acceptable. Close the loophole.
77. Kathryn Burke
San Diego CA,
D
COMMENT:
I disagree with the proposed changes that will ban a judge from participating in non-profit youth
organizations. I believe that this is a violation of the first amendment rights of the judges, as many
non-profit youth organizations are tied closely to religious groups. A judge is required to make fair
decisions as dictated by the constitution (both federal and state) regardless of their personal beliefs or
opinions. Although this statement appears to indicate that I would like judges free from bias (which
is not possible), the opposite is true. I would like judges who have a diverse set of personal
experiences that have opened their eyes to what real people experience. Participation in non-profit
youth organizations is a wonderful learning ground for a judge to gain insight into the mind of a
diverse set of youth. With that understanding they are better able to recognize the driving force for
youth involvement in illegal activities, and will be better able to suggest an appropriate retribution.
Judges are in place to represent the laws that have been supported by the people of the city, county,
state, and nation we live in. The best way to fully represent the laws is to understand those who are
making the laws, the citizens. This understanding comes by being immersed in local groups that
promote the well-being of the society as a whole--groups like the Boy Scouts of America. I support
the first amendment, and I believe that judges should have the same access to the first amendment as
they do to the rest of the laws that are supported by the nation. This includes participating in nonprofit youth groups, especially those tied into religious organizations.
78. Paul Buschini
San Ramon, CA
D
COMMENT:
I am in opposition to a proposed rule change that, initially, affects California judges’ rights to free
exercise of religion, free expression, and freedom of association, but sets the stage for an anticipated
subsequent attack on religious liberty of all California lawyers. The implications are far reaching,
alarming, and affect the liberty of all Californians, especially persons of faith.
79. Thomas M. Butler
D
COMMENT:
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Commentator
Murrieta, CA
Position
Comment
I don't see how eliminating the exception for non-profit groups somehow elevates the integrity of the
judiciary, especially considering that no non-profit organization has done more to promote integrity
in this nation's youth than the Boy Scouts of America and its leaders. This proposal, however wellintentioned, is simply misguided and simplistic and not well thought out. It should not be adopted,
particularly since there is no evidence that any judicial officers that would be affected have shown
such bias.
80. Lisa Butterfield
Eureka, CA
A
COMMENT:
It is improper to allow judges to belong to groups that support discrimination against any group,
*especially* groups that deal with youth. Youth need to know that the laws, and those making them,
do not support discrimination based on inborn human attributes. Our youth who are sexually or
gender different in any way need to be reassured that the law considers their safety and rights to be
equal to that of all Americans.
81. John R. Byerly
Bloomington, CA
D
COMMENT:
I oppose SP 14-02. Requiring members of the judiciary who are members of the BSA to resign from
the judiciary will deprive us all of the honorable services of these people. There is no evidence that
membership in the BSA leads to improper judicial judgments. If parties are concerned that a conflict
exists, that can and should be addressed on a case by case basis through the court system. We must
not allow intolerant and agenda driven individuals and groups to cause such damage to our courts by
driving out good and honorable judges.
82. Farah C.
D
COMMENT:
A person's association with BSA does not take away his qualifications as a judge or any other job for
that matter.
In BSA young men practice honesty and are required to be ethical in their dealings, if anything an
association in BSA should be promoted.
83. Enrica Cabacungan
Oceanside, CA
D
COMMENT:
Being discriminating used to be a virtue. It meant that you could accurately judge the difference
between good and bad, right and wrong, better and best. When did that become a vice instead?! A
judge who cannot discriminate guilt from innocence is totally worthless.
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Commentator
84. Mr. Calfee
Folsom, CA
Position
Comment
If you want to pervert discrimination into a vice, doesn't this proposal "discriminate" against the boy
scouts? And if that's allowed, then what's next? Anyone making decisions between right and wrong,
anyone taking a stand against moral relativism or robotic political correctness is a target--judge or
not. This reeks of self-interested lobbyists, and I am appalled that anyone would come up with such
blatant targeting. This is not about judges, nor about boy scouts. It is about stealing our right to
choose, to discriminate good from evil, right from wrong. Shame on everyone involved in this
manipulative maneuver.
D
COMMENT:
There is no basis for a change to the canon as it now stands. To restrict judges from participating as
leaders and examples in a youth organization such as the Boy Scouts of America is an injustice to the
youth and to the judges that wish to participate.
First hand I have seen the impact and respect granted a practicing Judge who is also a Boy
Scout leader or participant. With two sons who earned the rank of Eagle Scout and now both serve in
our armed forces I am no outsider to these issues. There is no other youth organization that comes
even close to matching the character development and mission of service that the Boy Scouts of
America fosters. To bar the participation of judges and others is an act of discrimination to their
rights as individuals. And will deem the shallowness of the trust of those selected to be judges. This
case is one more affront to the liberty and freedom America was founded upon. Perhaps the
vegetarians will be the next group to require all to adhere to their belief versus the freedom of
Americans to make their own choice.
85. Hon. David Calfee (Retired)
Meadow Vista, CA
D
COMMENT:
Boy Scouts of America
"On my honor, I will do my best to do my duty to God and my country, to obey the scout law, to help
other people at all times, and to keep myself physically strong, mentally awake and morally straight"
"A scout is TRUSTWORTHY, LOYAL, HELPFUL, FRIENDLY, COURTEOUS, KIND,
OBEDIENT, CHEERFUL, THRIFTY, BRAVE and REVERENT"
For more than 100 years the Boy Scout organization has promoted these principals to the youth of
America. Now a small group of bigots on the Committee of Judicial Ethics is trying to destroy the
organization because they find fault with the organization's definition of "morally straight".
The Catholic Church does not allow women to become priests. The Methodist church has recently
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Comment
dismissed a senior clergyman because he officiated at his son's wedding to another man. Should all
Catholics and all Methodists be denied the right to become a judge?
Guilt by association has never been good policy and should not be adopted by the courts of
California. The courts and judges of California have many problems, but homophobic judges have
not been one of them. Attacking the Boy Scouts of America by denying it the services of California
judges is a foolish decision, and should be rejected.
86. California Judges Association
By Robert A. Glusman
President
Sacramento, CA
AM
I am writing on behalf of the California Judges Association (“CJA”) in response to the Invitation to
Comment concerning proposed amendments to Canon 2C, and related provisions, of the California
Code of Judicial Ethics (“the Code.”) CJA has presented the matter to its membership and, through
its Executive Board, supports the proposed amendments. The reasons for support are essentially those
set forth in the Invitation to Comment.
In addition to supporting the amendments, the CJA requests that, if the amendment to Canon 2C is
adopted, the committee consider delaying implementation of the change as it relates to non-profit
youth organizations for a reasonable period of time. This would give judicial officers who are
members of non-profit youth organizations sufficient time to take whatever actions they deem
appropriate before being subjected to the consequences of a violation of the Code. Some members
may feel the need to follow through with commitments they made prior to that amendment taking
effect. Others may wish to urge organizational change from within. For those and other reasons, CJA
feels it would be beneficial to delay the implementation of these amendments.
Additionally, CJA believes it would be helpful for the commentary to Canon 2C or the Terminology
portion of the Code to include a definition of “membership.” There may be activities in which a
person engages in connection with non-profit youth organizations that may or may not constitute
membership and, as such, may or may not be affected by the provisions of the Code. We feel a more
thorough explanation of what constitutes membership would provide needed guidance to judicial
officers concerning what, if any, activities are permissible.
We appreciate both the opportunity to provide these comments and your committee’s consistent
dedication to the improvement of judicial ethics.
87. California League of Latin American
A
Dear Members Of The Advisory Committee On The Code Of Judicial Ethics,
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Commentator
Citizens
Jan B. Tucker
State Director
Torrance, CA
Position
Comment
As a former Troop 325 (Arleta, California) Senior Patrol Leader and as State Director of the
California League of Latin American Citizens I urge you to support a proposal to prohibit state
judges from belonging to organizations, such as the Boy Scouts of America, which
discriminate against lesbian, gay, bisexual or transgender (LGBT) people and
atheists/agnostics.
The Boy Scouts recently approved letting LGBT young people, under the age of 18, belong to
the Boy Scouts, but it still prohibits older LGBT people from serving in leadership positions in
the Scouts. Likewise, it bars atheists and agnostics from participation.
As you must know, there is growing acceptance of LGBT people throughout the nation. They
are now allowed to marry in 17 states, and the District of Columbia, and no less an authority
than the US Supreme Court has ruled that the federal government must recognize those
marriages. As it happens, 17 states, and the District of Columbia, also ban discrimination
against LGBT people.
straight.” I and a growing number of Americans believe that discrimination against LGBT
people and atheists agnostics is immoral. Judges, when they join the Scouts, or serve in
scouting leadership positions, are, in effect, expressing support for that immoral policy. They
are also injecting themselves into a controversy that they may eventually have to rule
on in court minimally creating an appearance of impropriety under Canon III of the
Judicial Canons. In Rotary Club of Duarte [481 U.S. 537, 544 (1987)], which we believe was
correctly decided by the United States Supreme Court, the Boy Scouts of America filed an
amicus brief in support of the right to discriminate. We also believe that in BSA vs. Dale [Boy
Scouts of America, 706 A.2d 270, 275 (1998), 530 U.S. At 644] the Supreme Court wrongly
decided the case just as the California Supreme Court erred in deciding that California's
Unruh Civil Rights Act did not apply to the BSA [Curran v. Mount Diablo Council of the Boy
Scouts of America, 17 Cal.4th 670, 952 P.2d 218, 72 Cal.Rptr.2d 410 (1998)].
For all these reasons, I believe judges should not associate themselves with the Boy Scouts
or other organizations that discriminate against LGBT people, atheists and/or agnostics. I
urge you to support the proposed ban on judges joining such organizations.
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88. Callahan, Thompson, Sherman &
Caudill, LLP’s
By Robert W. Thompson
Partner
Irvine, CA
Position
D
COMMENT:
See attached pdf.
Comment
89. Hon. Roland L. Candee
Sacramento, CA
D
COMMENT:
I do not agree with the proposed changes. The military must still be viewed as an organization that
discriminates based on several grounds listed. For instance, the military grades their physical fitness
tests based on the gender of the person taking the test and sodomy is still a crime under the Uniform
Code of Military Justice. It is pure wishful thinking to state that policy changes under President
Obama have eliminated the military as an organization that discriminates based on listed grounds.
I do not agree with the proposed changes for organizations like the Boy Scouts. Forcing judges out of
the Boy Scouts appears to me to be simply trying to force a liberal political correctness test on
judges.
90. Paul Carden
San Juan Capistrano, CA
D
91. Daryl Carlson
Redlands, CA
D
COMMENT:
I agree with my friend and attorney that “This proposal is a disturbing attack upon religious liberty
and freedom of association. Ensuring that judges do not discriminate from the bench is imperative to
assuring the fair and equitable justice, but rooting out judges based on extra-judicial affiliations in a
judge’s private life goes too far and penalizes the right to freedom of association, free exercise of
religion, and freedom of speech.”
COMMENT:
Many judicial officers serve as BSA leaders who are committed to instilling in our youth patterns of
moral behavior and good citizenship. These strong sentiments can be held by judicial officers
without the risk of bias in judicial matters. Some of our best judges have an affiliation with the Boy
Scouts of America based on their religious convictions.
homosexual conduct. But these same officers retain an equally profound commitment to equal
justice for all, regardless of individual sexual orientation. To suggest that these judicial officers
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Position
Comment
cannot act impartially is intolerant and narrow-minded.
Please do not make this change.
92. Jonathan Carter
Chula Vista, CA
D
COMMENT:
The Boy Scouts is an honorable institution. This is just an attempt to silence those who would
disagree that the homosexual choice of lifestyle is good for young men. Having homosexual leaders
in charge of young men would be the equivalent of having men in charge of the girl scouts! Where is
the tolerance from homosexuals for the opinion and belief of others? Disagreement does not equal
hate!
93. Mark Carter
Modesto, CA
D
COMMENT:
As judiciary you have the obligation to remain impartial and not infringe on religious beliefs or
rights. Yet, the action you propose will force your beliefs on those very religious freedoms. Shame on
the court for moving in this direction. You state that eliminating the exception would “promote the
integrity of the judiciary”. Hogwash! I state that it will have the opposite effect. If you continue
down this path I hope efforts start to impeach the court and terminate those attempting to yield this
power against the people.
94. Andrea Casalett
San Francisco, CA
A
95. Robert Chambers
D
COMMENT:
I believe that the loophole allowing judicial participation in discriminatory nonprofit youth
organizations should be closed.
COMMENT:
Hello, I am writing because I strongly disagree with a proposal to ban judges from participating as
leaders in BSA activities. As a retired military officer and adult leader in the same troop as Mr. Larry
Hayes, you can't imagine what banning a person who has dedicated so much of his life to the BSA
will do to the troop. Which profession will be next? I swore an oath to protect and defend the
constitution, so will I be banned next if somehow my oath to the constitution and the BSA is called
into question? Our troop consists of adult leaders from all walks of life, that's what makes it strong.
Banning an adult, especially a judge or military officer based, not on misconduct, but on the fact that
you don’t think we can separate our profession from a leadership role in the BSA is short sighted.
96. Paul Cheverton
San Diego, CA
D
I cannot fathom the idea that you would prevent any judge or proposed judge from being affiliated
with or being a member of the Boy Scouts since the organization has banned gay leaders. The fact
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Commentator
Position
Comment
they have affiliated with the Boy Scouts does not mean they agree with the stand that the Boy Scouts
has taken.
Does this mean that anyone who associates with any organization must be presumed to also have the
same opinion on any and all stances the organization that are associated with has taken.
This political correctness is ridiculous.
I became an Eagle Scout in high school and got a lot from the Boy Scouts in my youth and while I
disagree with the ban on gay leaders, it is something that has moved over time. The only way that
will change is if reasonable people are still members and leaders of the organization and can express
their opposition to the ban.
I have expressed my opinion to local and national leaders that is something the Boy Scouts should
not be done. However, banning judges or prospective judges from being affiliated with the Boy
Scouts is preposterous.
Part of the problem is you assume that because someone is a member of any Boy Scouts related
activity, they must be presumed take the position that they oppose gay leaders from taking leadership
positions. Most change comes from within and from respected members.
Are we now going to have a litmus test for a judge's or prospective judge’s political positions
including that of any organization that they are affiliated. If you apply this ban on prospective judges
presuming they agree with all the stances any organization they are affiliated, this needs to apply to
positions on both the political right or left. This is a can of worms as I do not think the judicial
council can logically apply to prospective judges on the political right and not to the political left.
97. Christian Legal Society
By Kimberlee Wood Colby
Director, Center for Law
and Religious Freedom
Springfield, VA
D
COMMENT:
See attached pdf.
98. Nathan Christensen
D
COMMENT:
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San Diego, CA
Position
Comment
As an Eagle Scout, who, at a young age, learned that being trustworthy, loyal, helpful, friendly,
courteous, Kind, obedient, cheerful, thrifty, brave, clean, and reverent are the values that make a man,
I strongly disagree with the said proposal. As a citizen of this beautiful state, I hope that these are the
very values we look for in a judge. An affiliate with the Boy Scouts of America program holds these
values dear to his heart. It would be a great disservice to this state to not allow a man of this
background to serve as a judge.
99. Heidi Christianson
Hemet, CA
D
COMMENT:
These changes seem to be targeting the Boy Scouts of America. While I don't fully agree with the
Boy Scouts stand on the gay/lesbian issue, I do feel that BSA is a fantastic leadership organization. It
teaches our youth how to lead. These youth will be perfect to be in the positions that you will be
banning them from holding. I have been a youth leader in BSA for years. I have one son that has
made Eagle and three more that will in the next couple of months. I have NEVER seen or heard
anyone talk to the youth about sexual orientation. There is nothing in the teaching about it, as well
there shouldn't be. If we all were to totally write off every organization because they have one area
of backwardness, we would be living in anarchy. Please don't totally write off my sons and what
they could possibly offer the State of California in the future just because they chose to go through a
youth organization that happens to have one aspect you don't agree with.
100. Robert Christopherson
Beaumont, CA
D
COMMENT:
101. The Church of Jesus Christ of Latter Day
Saints
By Dennis Jay Barney
Gridley, CA
D
COMMENT:
I am a humble man, of humble means. I am 64 years old. In those years, I served 4 years in the
USAF during the Vietnam era. I was selected from among my peers as Airman of the Month; first at
the duty section level, then at the squadron level, then at the base level from Norton AFB in San
Bernardino, and then my name was put forward to be selected at the Air Force Command level,
which for me was the Southern Communications Command, which covered the southern half of the
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United States. I came in second in that last competition, and one of the things that they looked at was
our participation as mentors with the youth of our country. I was a Sunday school teacher at the time,
but the airman who won was actively involve with BSA and other youth organizations.
The USAF cared enough about BSA, that if we needed to attend a BSA campout or even a BSA
long-term camp, (week long summer camp), we were not required to take leave, but could go based
on a religious retreat - the days of which were not limited per year.
BSA is a time honored and time PROVEN organization. Achieving the rank of Eagle Scout, has
opened such doors as our military academies which create the officer ranks of our military. In our
country, the achievement of the Eagle Scout rank has for many years been used to decide what
person to select from among close candidates for positions.
I have worked in fire camps for the last two summers with a friend who owns a fire support shower
facility. During one of the fires I served at during the summer of 2012, I spoke with a fire captain as
he was resting under our shade awning after taking a refreshing shower after 24 hours on the fire line.
He told me that he was an Eagle Scout, and that when he had applied for his current position as
Captain of his fire company, the list of accomplishments on his resume was very good, but was
identical to that of another person that had applied, with one exception. The other person had not
achieved the rank of Eagle Scout. On that basis, he was awarded the position - because of what time
has taught those who work with people from all walks of life. Those who have been members of
BSA as a youth, and have gone on and achieved the rank of Eagle Scout, are exceptional.
I have served in BSA in many positions, for over 40 years of my life. I have seen the results of what
BSA can do, and how it is achieved from the mentoring of strong leaders. We pick some of the
strongest and best of our leaders to do the important work of deciding the fate of individuals that
have come under the auspices of the legal system in the State of California as members of our
judicial system. If we want to have the best in these positions, how can we have the audacity to try
to take away their God given right to serve in whatever position in BSA, where they can have a great
influence for good in the lives of young men and women; who are our rising generation of leaders?
In closing, I put forward the following points:
Many judicial officers serve as BSA leaders—especially among Latter-day Saints, who accept this
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role as a matter of religious duty. By their BSA leadership, these judicial officers—men and women
alike—provide excellent role models for young men and women.
102. Church of Jesus Christ of Latter Day
Saint
By Shanna Livingston
Palm Desert, CA
D
COMMENT:
It is appalling that the “some " are assuming they can undo the precious truths and laws our great
country is predicated on. We as a people can work together and get things done for all, can't we? If
not why, because the "some" are aiming to divide us with a wedge. Shame on you! For you to go
after the Boy Scouts of America shows what caliber you truly are. America is in trouble!
The Church of Jesus Christ of Latter Day Saints which I belong to has been a part of scouting for
years and years, and have been a part of hundreds and hundreds Eagle Scouts, Silver Beaver etc.
awards. To "mess" with these young men's lives is not smart. There are not the greatest of role
models around anymore for young boys and young men. Leave things alone please,
103. The Church of Jesus Christ of Latter-Day D
Saints
By Lance B. Wickman
General Counsel
COMMENT:
I write on behalf of The Church of Jesus Christ of Latter-day Saints (“the Church”) to inform the
Committee about the role of scouting within the Church and to request a clarification in the official
commentary accompanying the proposed amendments to Canon 2C of the Code of Judicial Ethics. I
am an active member of the State Bar of California, and I practiced law for more than 23 years in Los
Angeles and San Diego before assuming my present duties. So, my interest in this issue is personal
and professional, as well as representative of the Church and Church members who belong to the
California judiciary.
The Church was one of the first institutional sponsors of the Boy Scouts of America (BSA” or
“scouting”). That sponsorship began in 1913. For more than a century, the BSA program has been
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an integral part of the religious ministry and lay priesthood training for Latter-day Saint boys and
young men. Priesthood training for young men is not just a Sunday experience. It includes service
opportunities, as well as ecclesiastical, civic and outdoor activities, that strengthen character and
inculcate good citizenship and a desire to serve God. The purpose of this training is to prepare them
for missionary service, marriage and adult responsibilities in both the Church and the community.
Accordingly, scouting is tightly woven into our priesthood program for young men. It is not in any
sense an ancillary activity of the Church.
The Church has a lay ministry comprised of volunteers; all active Church members are called to
serve in our local congregations. Some are called to provide priesthood training for young men; and
that necessarily includes a call to serve in scouting. In fact, for those called to work with boys and
young men it is virtually impossible to separate service in scouting from priesthood service.
Consequently, the implications of the proposed amendment to Canon 2C for Latter-day Saints judges,
who also serve with young men in their Church callings, are potentially very significant. The
proposed amendment would eliminate the exception for membership in nonprofit youth organizations
like BSA but retain the religious exception. How would that apply to Latter-day Saint judges for
whom service to youth as a Church calling necessarily involves participation in scouting? Surely, the
intent of the proposed amendment cannot be to force a judge to choose between service on the bench
and service in his church. That the proposed amendment does not eliminate the religious exception is
evidence that such is not its intent.
But, for the reasons noted, that is potentially the Hobson’s choice that would be forced on Latter-day
Saint judges.
Accordingly, if Canon 2C is amended as proposed, the Church respectfully requests that the official
commentary clearly state that the religious exception covers participation and membership in
scouting and other youth programs where such programs are fully integrated into the religious
ministry of a religious organization.
I would be happy to provide further information and clarifications to the Committee if that would be
helpful. Thank you for your consideration of this important matter.
104. Dan Clark
D
COMMENT:
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Commentator
Chico, CA
Position
Comment
Dear Advisory Committee,
Please use your common sense and REJECT proposal SP14-02. Service is the BSA has no bearing on
one’s ability to serve as an impartial judge. There is no evidence that membership in the BSA has
inappropriately biased a judge. Furthermore, prohibiting membership in BSA does not support the
viewpoint that diversity among judges is a good thing. This proposal is discriminatory and will
hamper diversity in the judicial system.
Thank you very much.
105. Richard R. Clements
Long Beach, CA
D
COMMENT:
As a past participant of the Conference of Delegates (exceeding 20 years) and a former member of
the Board of Trustees for the L.A. County Bar Association as well as the Long Beach Bar
Association (later), I speak in opposition to proposed SP14-02. The issues are well defined: At best
we have attempted McCarthyism - at worst a demonstration of Fascism!
106. Cody Clobes
Ventura, CA
D
COMMENT:
An affiliation with the Boy Scouts of America will not hamper a judge's ability to be fair and
unbiased. Prohibiting judges from affiliating with the BSA is unnecessary and unjust.
107. Don Clobes Jr
Ventura, CA
D
COMMENT:
This is a horrible idea. Please don't pass it.
108. Robert F. Cochran, Jr.
Michael W. McConnell
Mark S. Scarberry
Steven D. Smith
D
COMMENT:
May we suggest that the proposals raise very serious constitutional and prudential questions.
Adoption and enforcement of the proposals would (1) likely violate the United States Constitution,
(2) fail to achieve the purpose of the proposals, (3) unnecessarily exacerbate the current deep cultural
and religious conflicts, (4) work against the key policy that underlies the proponents’ concerns, (5)
cut against the proponents’ apparent desire to honor the service of current armed forces members and
veterans, and (6) create unnecessary conflicts between the policies of the State of California and of
the United States.
First, these proposals implicate multiple, intertwined issues under the United States Constitution.
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Comment
Prohibiting judges from participating in intimate associational activities with their children implicates
the constitutional rights of families (and as a matter of policy improperly interferes with important
familial relationships). See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).
Judges do not shed their constitutional rights at the courthouse door. See Republican Party of
Minnesota v. White, 536 U.S. 765 (2002).
Adult participants in the Boy Scouts are leaders. Expressive associational and religious freedom
interests are at their zenith, and the right of the government (though still very limited) to burden such
interests is at its nadir, when choice of and participation in leadership is at issue. See, e.g., Boy
Scouts of America v. Dale, 530 U. S. 640 (2000). Consider also the recent Hosanna-Tabor decision,
and Roberts v. United States Jaycees, 468 U. S. 609 (1984).
Whether or not the Boy Scouts of America or subunits of it would fall within the religious exception
that would remain in the California regulations (which we submit they would), membership in the
Boy Scouts of America requires belief in God. A strong majority of Boy Scout groups – about 71% –
is sponsored by churches, synagogues, and other religious bodies. See
http://www.scouting.org/About/FactSheets/operating_orgs.aspx. Prohibiting a judge who is a
member of a religious congregation from participating in its scout troop (or cub scout pack) prevents
the judge from fully participating in the life of his or her religious congregation, and in that
congregation’s ministry. It comes close to a religious disqualification based on the judge’s religious
activities (and could even be a form of attainder or “black-listing,” a practice with a very unfortunate
history). The United States Constitution explicitly prohibits religious tests for any public office. The
prohibition also runs afoul of the protection of religious rights of parents with regard to the building
of character of their children, see Wisconsin v. Yoder, supra, which is a key purpose of the Boy
Scouts.
For the same reason, the proposals would not achieve their purpose to bar members of the Boy
Scouts from the judiciary, at least not members who are participants in Scout groups affiliated with
houses of worship. It then becomes hard to defend the proposition that leaders of the 29% or so of
Scout groups that are not religiously affiliated ought to be so barred.
Excluding judges on the basis of membership in the Boy Scouts – due to a perception that they may
be biased – would cause the people to question the impartiality of judges who belong to certain
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religious groups, such as Catholicism, and some others, including some Baptist, Jewish, and Muslim
groups. Our history, going back to Madison, of discrimination against Catholics, Baptists and other
religious dissenters should give pause. The message here would be divisive and undercut the public
perception of the judiciary.
It is also important to understand that many Scout groups – over 3,500 – are sponsored by veteran
organizations, particularly the Veterans of Foreign Wars and the American Legion. See
http://www.scouting.org/About/FactSheets/operating_orgs.aspx;
http://www.scouting.org/About/FactSheets/operating_orgs/VFW.aspx. The proposals would delete
the military exception only because of the change of the military’s policies, not because of any lack
of respect for those who serve or have served our country in such selfless ways. Yet members of
veterans’ organizations would be precluded from participating fully in their programs if they wish to
serve in the California judiciary.
Finally, it should be noted that both the Boy Scouts and the American Legion are chartered, at the
national level, by the United States. See 36 U.S.C Chapter 309;
http://www.legion.org/documents/legion/pdf/legion_charter.pdf;. The Congress, by overwhelming
majorities as we understand it, has affirmed the important role of scouting in American life, and the
right of the Boy Scouts to equal access to facilities, through the Boy Scouts of America Equal Access
Act, and the Support our Scouts Act. California is not, of course, bound to follow federal law, except
with respect to certain matters involving federal funding, but it would seem to be unnecessarily
divisive for the California judiciary to bar from its membership persons who associate with such
federally-supported organizations.
Thank you for considering these views.
109. James C. Coffman
Meridian, CA
D
110. Christopher Coleman
A
COMMENT:
This is a ridiculous proposal. Judges are chosen because they are fair minded individuals. It should
not matter if you support the BSA or not. This is prejudice no matter how you look at it. Let the
Judges have an influence for good to all Boy Scouts, Girl Scouts, Gays, Blacks, Hispanics and
Whites and any other group where they can influence people to be good and fair. Don’t make our
Judges second class citizens by taking away their right to control their own lives.
COMMENT:
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SP14-02
A
Commentator
Altadena, CA
Position
Comment
I urge you to support a proposal to prohibit state judges from belonging to organizations, such
as the Boy Scouts of America, which discriminate against lesbian, gay, bisexual or transgender
(LGBT) people.
The Boy Scouts recently approved letting LGBT young people, under the age of 18, belong to the
Boy Scouts, but it still prohibits older LGBT people from serving in leadership positions in the
Scouts.
than the US Supreme Court has ruled that the federal government must
recognize those marriages. As it happens, 17 states, and the District of Columbia, also ban
discrimination against LGBT people.
straight". I and a growing number of Americans believe that discrimination against LGBT people
is immoral. And Judges, when they join the Scouts, or serve in scouting leadership positions, are,
in effect, expressing support for that immoral policy.
111. Mark Collins
Oroville, CA
D
112. Come Reason Ministries
D
For all these reasons, I believe judges should not associate themselves with the Boy Scouts or other
organizations that discriminate against LGBT people. I urge you to support the proposed ban on
judges joining such organizations.
COMMENT:
I strongly disagree with this proposal. There are many good people who serve youth in our
community, and I thought diversity was celebrated in our state. By preventing good people from
working with youth, you will be doing the greatest disservice to our state. This appears to be a move
to create a class of judges in our state that have a specific bias. We have seen several cases of
homosexual judges ruling based on their bias, but there are no high profile cases where judges who
support or are affiliated with the boy scouts (which does not discriminate - please become a little
more informed about the organization) has ruled based on a bias based on their relationship with the
BSA. Another example of the judiciary running amok and another strike against respect for judges
that are supposed to be impartial. Please do not pass this proposal.
COMMENT:
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SP14-02
A
Commentator
By Lenny Esposito
Riverside, CA
Position
Comment
The association of judges with a legally recognized nonprofit that holds a position also held by a
substantial portion of the population of California should not be infringed. There is no compelling
reason why the religious or associative rights guaranteed by the first amendment of the United States
Constitution should be trampled to only appease on political faction.
113. William D. Connell
Menlo Park, CA
D
114. Ryan Condron
Riverside, CA
D
COMMENT:
This change would violate the First Amendment rights of judges with respect to freedom of
association.
115. Erin Cook
Yucaipa, CA
D
COMMENT:
I don't believe it is constitutional or morally right to require that judges have no affiliation with the
Boy Scouts of America or such organizations because of the organization's stand on such issues as
sexual preference. I don't believe it would be right to require those who have affiliation with
homosexual organizations to be banned from being a judge.
Hate is hate if you are hating on people who don't believe homosexuality is a desirable life style, your
still hating. Most people don't believe they are against the good guys. We all have our own desires
and beliefs. We shouldn't discriminate against others because of their desires and beliefs. As long as
we are considerate of others and it doesn't interfere with doing the job.
116. Grant Cook, Jr.
Lathrop, CA
D
117. John Cook
Yucaipa, CA
D
COMMENT:
The idea of excluding members of the Boy Scouts of America from judicial positions shows inherent
bias, something I thought was to be avoided by these officers.
The leaders of the Boy Scouts of America that I have met over many years have all been upstanding
citizens who are committed to the foundational principles of our country, including equal justice for
all. So to claim that they cannot be impartial in a court of law is unfounded from my experience.
Therefore, please do not pass this proposal.
COMMENT:
Please note that I am strongly opposed to the changes proposed in this amendment on the basis of the
following arguments, among others:
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1) Canon 2C of the California Code of Judicial Ethics currently states that "Membership in nonprofit
youth organizations is not barred to accommodate individual rights of intimate association and free
expression". These rights have not changed, and their accommodation is as valid as it has ever been.
2) The Code of Judicial Ethics already contains provision for the disqualification of a judge when his
impartiality is deemed to be compromised (see canon 3E). These provisions have not proved to be
insufficient.
3) Many judicial officers serve as BSA leaders—especially among Latter-day Saints, who accept this
4) The BSA provides one of the most prevalent, diverse, and time-honored programs in the western
world for encouraging truthfulness, fairness, kindness, service, civic mindedness, selflessness, work,
and achievement. Indeed, the term "boy scout" has become synonymous with one who seeks to live a
virtuous life eschewing vice and riotous living. That the BSA have sought to remove the dynamic of
sexual attraction from the forum in which they educate is not a unique approach, but has been
common to educational, fraternal, and women's/sorority organizations throughout the world, and is
not unreasonable.
5) Many individuals have deeply held religious views regarding same-sex attraction that in no way
diminish their commitment to equality for all before the law, regardless of sexual orientation.
6) There is no evidence to suggest that association with the BSA has compromised the impartiality of
any judge in the CA legal system. Yet many judges can trace early reinforcement of core virtues such
as fairness, honesty, and equity to involvement in the BSA.
7) The Code of Judicial Ethics should not seek to homogenize the viewpoints held by the judiciary,
but ought rather to embrace a diversity of viewpoints to better serve the diverse population of
California.
In conclusion, while this proposal appears to seek to increase the credibility of the judiciary, adoption
of this proposal would likely have the opposite effect. In employing an overly simplistic litmus test to
personal associations, we disregard the rights upon which the youth organization exception is
predicated, and we do it without evidence to support its necessity or a mandate from the people. We
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further disqualify individuals for public service based upon association with a known champion of
virtue, integrity, service, and civic involvement.
I plead with the committee to consider the implications of this proposal and reject it, favoring instead
individual rights of association, diversity of viewpoints, and existing provisions for ensuring
impartiality and equality before the law.
118. Lynette Cook
Lathrop, CA
D
COMMENT:
The idea of excluding members of the Boy Scouts of America from judicial positions shows inherent
bias, something I thought was to be avoided by these officers.
The leaders of the Boy Scouts of America that I have met over many years have all been upstanding
citizens who are committed to the foundational principles of our country, including equal justice for
all. So to claim that they cannot be impartial in a court of law is unfounded from my experience.
Therefore, please do not pass this proposal.
119. Belinda Cooley
Oroville, CA
D
COMMENT:
I am opposed to the proposed changes to
SP14-02 Prohibiting membership in BSA does violence to the ideal of viewpoint diversity among
judicial officers. Some of these officers have deep and reasonable convictions concerning the
morality of homosexual conduct. But these same officers retain an equally profound commitment to
equal justice for all, regardless of individual sexual orientation. To suggest that these judicial officers
There are many judicial officers serving as BSA leaders—some of who accept this role as a matter of
religious duty. By their BSA leadership, these judicial officers—men and women alike—provide
excellent role models for young men and women.
120. Sara I. Cooper
Yucaipa, CA
D
COMMENT:
There are organizations in the United States designed and dedicated to raising children into
responsible adults and contributing members of society. The YMCA, the Boy Scouts of America, the
Girl Scouts, Blue Birds, AWANAs just to name a few. Currently the "adults" in our country are
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more interested in pushing their hidden agendas than raising children to look at issues for themselves.
Adults have learned to rationalize and choose for themselves where they fit in this complex world.
Children need organizations to teach them what, not HOW to think. If there are BOY Scouts and
GIRL Scouts, then these gender-specific organizations will adjust their missions for their
participants. If parents do NOT agree with those mission statements, then they do not need to join.
Now the issue has reached the court system??? Seriously? Our government wants to limit who may,
or may NOT sponsor these organizations based on what? DISCRIMIINATION against judges'
choices of their leisure time? It "seems" that dentists, then, should be judged on their sugar
consumption, English teachers on their text messages, and mathematicians on their tax filing. These
issues do NOT concern their performances at work. THEY ARE DISCERNING ADULTS who,
believe it or not, can act according to their job descriptions.
If you need a POWERFUL EXAMPLE, watch the episode of West wing when the President of the
United States, Jed Bartlett had to uphold the death penalty even though he, personally against it. He
DID WHAT HE WAS ELECTED TO DO.
Please do NOT limit men and women of the judicial system in their personal lives. If their job
performances are in question, then judge them accordingly. Do not let this proposal go through.
121. Kathleen Cope
Yucaipa, CA
D
122. Michael Cope
Temecula, CA
D
COMMENT:
To whom it may concern: I have serious reservations about this proposal, as it relates to the Boy
Scouts of America (BSA). As one who has participated in the organization both as a youth and as an
adult leader, I fear that this proposal damages and undermines the principles of both the Boy Scouts
and judges throughout California.
As it relates to the BSA:
- Boy scouts could no longer speak to a judge regarding the law merit badge. Who better to discuss
California law with than a judge?
- The proposal states that the proposal would not affect family members. The is in fact wrong. A
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Comment
judge who happens to be a father may not be able to attend a campout with his son, because it may
show tacit approval of the BSA and all adults who attend campouts are expected to undergo BSA
youth safety training. This robs both the son and the father of choice experiences to the detriment of
society as a whole and in the face of the argument that it would not affect family members.
- Youth benefit from leaders who come from all walks of life. Judges should be ideal role models
because of their ability to view many sides of each argument. However, this proposal would limit the
youth's ability to interact with important members of our society.
As it relates to judges
- It is an unreasonable public encroachment on personal and private life to dictate which
organizations a judge can and cannot be affiliated with.
- Judges are supposed to be impartial. The assumption that who a judge volunteers with would
affect his decisions from the bench is unfair to the judiciary and to the community at large. I disagree
with many organizations and positions that I know multiple judges affiliate with, however they are
not barred from affiliating with those organizations. This is a blatant attack on the BSA as it is the
only organization mentioned in the proposal.
I believe that this proposal is ill conceived. Will we also ban judges from volunteering in
organizations that are designed to help raise "young men of color" (http://www.allianceforbmoc.org/
for example) out of poverty because the name indicates the discrimination based upon race? There
will be far reaching consequences for more than just the BSA that have not been considered. Please
do not allow this proposal to pass.
123. Richard Lewis Cope
San Bernardino, CA
D
COMMENT:
The larger part of my three decades of law practice has put me in the courtroom on a daily basis.
Observing the human frailties of many judges, I do not recall ever seeing the behavior or bias by
bench members associated with the Boy Scouts of America that SP14-02 seeks to cure. A significant
problem with the proposed amendment is that there is no evidence any BSA associated judicial
officer has exhibited bias from the bench on the basis of sexual orientation.
Yet this amendment would deprive BSA youth of leaders and mentors, men and women who provide
excellent role models and teach our youth sound principles of citizenship. Many such bench officers
have well considered convictions concerning the morality of certain sexual conduct. Many times
such convictions are based upon deeply held religious beliefs. But these same officers retain an
equally profound commitment to equal justice for all, regardless race, sex, gender, religion, national
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origin, ethnicity, or sexual orientation. This is, in fact, what I learned was right in my youth as a boy
scout. It is what motivated me to pursue a legal career serving my community, first as a criminal
defense attorney then as a prosecutor.
I respectfully urge that this proposed amendment be rejected. It will not enhance public confidence
in the impartiality of the judiciary. It will instead, I fear, promote today’s growing cynicism of the
law and its judiciary as the public begins to understand that honest private conviction, good
judgment, and character must give way to the intolerance of excessive and unyielding political
correctness.
124. Michael Coppess
Pasadena, CA
D
COMMENT:
1.
Though the current Advisory Committee Comment to Canon 2C attempts to define
“invidious discrimination,” the phrase is still ambiguous and arbitrary as applied. The U.S. Supreme
Court has upheld the BSA’s membership rules.
2.
The proposed rule change is unnecessary, overbroad and overreaching. Judges are vetted,
appointed and elected through the established political and electoral process. The Code of Judicial
Conduct should not be used to limit potential judicial candidates from consideration. Membership in
legal organizations should not disqualify one from being a candidate for or serving in the judiciary.
3.
Though pleasing to certain groups, the proposal would not enhance overall public
confidence in the judiciary. There is nothing about service in the BSA that logically affects a
judge’s ability to be impartial. I believe, that for a significant portion of the public, confidence in the
judiciary would decline if they knew the Supreme Court excluded BSA members from serving as
judges.
125. Catherine Correia
Santa Rosa, CA
D
COMMENT:
We understand you want to eliminate any person that had any ties to the Boy Scouts of America from
serving on the bench.
That couldn't be more wrong! Many of these men have served the young people or have learned fine
skills in honesty and integrity and you want to keep them from serving?
Wow, who would be better? A convicted felon?
This country is going down the wrong direction and I'm fearful of our future! Please vote against this
change!
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126. John Correia
Santa Rosa, CA
D
COMMENT:
This bill lacks common sense and shows a hypocritical lack of tolerance!
127. Hon. Dennis Franklin Coupe (Retired)
Granite Bay, CA
AM
COMMENT:
It should be made clear that past membership in Boy Scouts would not be a required basis for
disclosure and possible disqualification/challenge, after resignation from the organization. Also,
would membership in the Catholic Church be substantially different from the Boy Scouts, in that the
Church treats homosexual activity as an evil that could be the basis for condemnation and excommunication? Likewise for Muslims and certain other religious affiliations. Should judges be
required to disclose their voluntary military service during the recent past when our military
prohibited gays? What about Latinos who belonged to La Raza? Etc, etc.
128. Kiersten Cowan
San Diego, CA
D
COMMENT:
Please don't do this. How are we supposed to have balanced judges if we refuse to let judges of all
different backgrounds practice?
I don't know much about practicing law, but just because a judge was a boy scout, doesn't mean he
necessarily agrees with the current position of the BSA. This
This is an attack. A proposal suggests something positive ('pro' is Latin for 'forward,' implying
progression and improvement); this "proposal" is anything but improvement--it traps people and sets
them in a gridlock.
129. Carla Croft
San Diego, CA
D
COMMENT:
Judges have varying personal opinions on many societal issues. However, judges are trusted to make
their decisions based on the law and the civil rights of others with whom they may not personally
agree. They and others who are sworn to uphold the law, daily protect the rights afforded by the law
even though they may not personally agree with the law. Prohibiting membership in BSA does
violence to the ideal of viewpoint diversity among bench officers. To suggest that these judicial
officers cannot act impartially is intolerant and narrow-minded.
130. Merlyne Joy Croft
Calimesa, CA
D
COMMENT:
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Comment
131. Kathy Crookshank
Temecula, CA
D
132. Allison L. Cross
Sacramento, CA
A
133. Michael Crowley
Poway, CA
A
COMMENT:
This exception to the rules that apply to all other organizations should never have been granted in the
first place. The Boy Scouts of American discriminates; their discrimination promotes bigotry. That
isn't what youth organizations getting tax breaks from the state should be teaching boys. Losing some
prominent men from troop leadership sends the right message to both BSA and the boys. It tells the
boys that good men don't tolerate bigotry. It tells BSA that bigotry has a price, and they must pay the
price or change their policy.
134. Curtis
Atascadero, CA
135. Angela Dahlin
Auburn, CA
D
D
COMMENT:
The BSA does not allow the boys to have leaders who are homosexual in an effort to protect those
underage boys on campouts and activities. This is done as a precautionary measure, not to
discriminate or show hate towards anyone. The BSA represents service and respect. Every person has
the responsibility to protect children and this is necessary for the BSA to do since their leaders go on
campouts and overnight outings with the boys. It would be upsetting if this wasn't done to protect
them since they are underage.
The proposed SP14-02 is in itself discriminatory. It punishes members of the BSA for their service in
an organization that has served many people of all different backgrounds and orientation. It takes the
mission and purpose of the BSA out of context.
136. Arleen Dalgleish
D
COMMENT:
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Comment
I learned today of the possible prohibition of California judges' affiliation with the Boy Scouts
because of the Scouts' rule that leaders be heterosexual. That good role models, such as judges,
should be prohibited from mentoring boys because of political pressure from homosexual lobbyists
indicates that our country is going down a very dangerous path. I strongly disagree with the panel's
decision to discriminate against the Boy Scouts' based on their traditional position on sexuality, and
see it as a dangerous slope down which those who hold similar views based on religious beliefs may
be legally persecuted.
137. John C. Dalton
Yorba Linda, CA
D
COMMENT:
The BSA promotes leadership and character development. Please do not dilute this organization's
importance by disallowing judges to belong or lead in these efforts.
138. James R. Davis,
Sacramento, CA
D
COMMENT:
I wish to comment on: Proposed Amendments to Canon 2C of the Code of Judicial Ethics (PDF, 87
KB), Item Number: SP14-02. I do not agree with the proposed changes. I believe we have rules of
judicial procedure that require a judge to disqualify themselves if they believe they cannot be
impartial due to their beliefs or would clearly be deemed impartial due to their associations. The
second is harder to deal with in an attempt to be fair. There is no clear and convincing reason to
assume that anyone associated with the Boy Scouts harbors any ill will against homosexuals or would
do anything to harm them.
I believe that the Boy Scouts of America is great organization and has been unfairly targeted for
discrimination because in our attempt to be fair to everyone we go overboard to give more rights to
minorities that to majorities. They are working with youth and have a great program that teaches
many good things. In the process they are prudently attempting to guard against pedophilia. There is
a common belief that homosexuals being somewhat different in their attitudes might have a higher
propensity to be a higher risk to our youth If there are statistics to refute these common beliefs then
please make them more public so we all may learn from them. If no existing statistics refute our
common experiences and knowledge then we should stick to the best knowledge that we have. Why
do we do background checks for youth workers if not to screen out the higher risk people from
working in those areas. The Boy Scouts need good leaders and Judges are usually excellent leaders.
Why do we want to harm this organization by attempting to prevent our Judges from volunteering to
teach young men good principals to live their lives by. They don’t teach anything that I know of to
denigrate homosexuals.
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Going to an extreme, why don’t we seek better treatment for pedophiles? They are different, and
they don’t chose to be the way they are. Do we have statistics on this to show they chose to be the
way they are? They are an even smaller minority than the homosexuals and the way they behave in
society we dislike even more than some of the displays the homosexuals participate in. How can we
train the pedophiles to conform to society? How can we train the homosexuals to be less bold and
obnoxious in public forums?
Society has to do the best it can to protect the weak and vulnerable against unacceptable actions of
others. So if you are in class of people who is a higher risk, you have to deal with a presumption
against you. This doesn’t mean there can’t be a way to overcome this presumption or a way to be in a
probationary period to prove that you also don’t manifest these higher risks. Based on prior history
they can still be considered equal but with a presumption of higher risk that must be mitigated.
Hopefully after a while, and with enough effort, the statistics will change and the presumptions can
change, and we will truly be more equal.
So I disagree that is wise to assume that judges who volunteer in the Boy Scouts cannot deal with
issues involving homosexuality and should by default denied a right to work as a judge. If there is
reason to believe they have a bias then there is a rule for this as initially stated.
Thank you for listening.
139. Louise DeDara
Menlo Park, CA
D
COMMENT:
See attached pdf.
140. Dale Deneen
Rancho Mirage, CA
A
141. Denise
D
COMMENT:
I disagree on this proposal because that proposal will discriminate against heterosexuals and doesn't
make any sense. The only reason for this proposal is to advance the gay and lesbian agenda and to
"punish" those who disagree with the gay and lesbian lifestyle. This is an immature way of thinking.
Basically, it says, "If we as gays can't be a Boy Scout leader neither can a heterosexual." It eventually
forces a non-profit organization to be dictated to and, therefore, more freedom gets taken away. This
is not what our country is about. This begins a dictatorship-like country if this proposal is approved.
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It's like a bully who says, "It's my way or the highway." My 'public confidence in impartiality of the
judiciary' gets shaken when I see such preposterous discriminative proposals such as this proposal. I
have seen judges treat all people with the utmost respect and I expect that they should be treated with
the same respect. Do NOT go forward with SP14-02.
142. Dershem and Associates
By Larry Dershem
Attorney
La Jolla, CA
D
COMMENT:
Strongly recommend leaving canon 2C unchanged. Many nonprofit youth organizations, such as the
Boy Scouts of America, have a long history of producing the outstanding future leaders our country
so desperately needs right now.
To prevent judges from holding membership in such organizations would create a "chilling effect" on
membership and leadership growth of such valuable entities, and would violate the U.S.
Constitution's First Amendment guarantee of freedom of association. Further, if the proposed
amendment to canon 2C is adopted, it will only be a matter of time until religious freedom itself
comes under direct attack.
143. Rozette Dewart
Murrieta, CA
A
COMMENT:
Family law courts and especially the juvenile courts need total transparency and not behind closed
doors and parents/ family need to be able to file a response to correct and prove right away if their
children have been removed due to CPS involvement! I saw firsthand the deceit and lies in the social
workers reports that have scared a family. If a child has no marks bruises or signs of neglect then
children should not be removed by cps and courts should not have these hearings behind closed
doors! A response form needs to be given to parents from the beginning if children are removed and
all should be able to be tape recorded as well as in the court rooms no hidden talks! This has
destroyed families and their children and has done damage to the children as well as to the parents,
Judges should always be held accountable as well as no hidden talks behind closed doors! We need
total reform in these court rooms as well as the judges that hear these cases! Saddens me NO ONE
has ever filed their own response in the state of California in the juvenile court rooms in Murrieta
auld road! I ask why is that? Just like any other court rooms these judges need to treat parents with
rights and this is not happening! Let’s change it! Judges are ripping kids from their homes on a social
workers word of what they think! We need jury trials in these court cases as well and Judges need to
question both sides as well as hear responses right away as this is doing major harm damage! The
people in these court rooms have no voice nor do they have rights and when these judges and courts
are making these decisions without total transparency and it is resulting in child abuse, child rape,
child murder, child trafficking, fraud, corruption and extortion from all taxpayers! This needs to stop!
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Comment
We need change!
144. Louis Desser
Pacific Grove, CA
D
COMMENT:
This proposal is an attempt to micro-manage the lives of judges participating in organizations
deemed "intolerant" by some. Should these same judges also be barred from the Catholic Church?
How about the Nation of Islam?
Freedom is about tolerating differences, not regulating them out of existence.
This is a very slippery slope and I urge our Ethics Committee to reconsider their thinking on this
important matter. I believe that kids in scouting will greatly benefit from the experience and wisdom
members of our judiciary bring with them.
Thank you for your consideration.
145. Devin
Oroville, CA
D
COMMENT:
I do not agree with the proposed changes, which would not allow leaders in the BSA to serve as
judges in the state of California. As citizens, we are to seek for those leaders who we believe would
be the most honest and the most hardworking to better the society we live in. If we eliminate the BSA
as a pool of people we can choose from, we eliminate a lot of upstanding leaders who have been
taught to be "trustworthy, loyal, helpful, [and] friendly". All individuals have their views on the gay
marriage issue, whether expressed or not. The benefits of having one of these commonly respectable
citizens in government (specifically as a judge) are great in helping us continue growing as an honest
and peaceful society.
In conclusion, I am against the changes that would eliminate leaders of the BSA from serving as
judges in the California court system. Good leaders should be carefully and honestly sought for, and
eliminating the BSA leaders from that pool of candidates will also eliminate many honorable
individuals from helping our society even more.
146. Lynn Diaz
Foothill Ranch, CA
D
COMMENT:
SP14-02 will serve to do the very thing that the government is claiming to "fix" and that is
discriminate against those who don't agree with popular political agenda. It's wrong and I strongly
urge you not to pass this.
147. John Doe
D
COMMENT:
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Camarillo, CA
Position
Comment
Free speech (association) is OK, so long as either coincides completely with the majority of the
judiciary's views. I see.
Our judiciary, just like any other group, should be free to associate and have beliefs (so long as not
openly and actively in support or opposition of a position that they are set to rule upon). In those rare
instances when there may be actual or potential impartiality, the judiciary can adequately self-police
without any alteration to this rule.
148. Jim Doolan
Westlake Village, CA
D
149. Stephen M Douglass
Yucaipa, CA
D
COMMENT:
I oppose SP14-02 because it demonstrates a level of prejudice equal to the prejudice it is attempting
to prevent.
As a public school teacher for 37 years I often faced opportunities to make stupid decisions involving
grades, both academic and behavior, but always remembered my commitment to be fair and just.
There were many students I did not like and did not trust, but I gave my best effort to grade them
fairly. I had pretty students as well as pretty ugly students, I had athletic students as well as wimpy
students, I had blonde, brunette, and red haired students as well as students with hair dyed every
color of the rainbow, and most annoyingly I had students who liked hard candy instead of chocolate,
but in every case I remembered my commitment to be fair and just.
Oh yeah, I was always fair and just with people who had different skin color, different eye color, or
unusual tattoos or piercings. But apparently all of these differences are not of concern with SP14-02.
You are only concerned with how judges will make decisions if they are associated with an
organization that seems on the surface to have negative stance with regards to gay individuals (such
as Boy Scouts of America). Shouldn't there be equal concern for impartiality with regards to people
who take an opposite stance?
Over the years I have had a huge number of lesbian, gay, and transgender students and found that I
always remembered my commitment to be fair and just. I graded them according to their merits, not
their sexual orientation. And as a Boy Scout Leader and Merit Badge Counselor for many years I
always remembered my commitment to be fair and just.
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Commentator
Position
Comment
To do anything else would show prejudice toward the individual or group in question.
So why do you think judges would be anything other than just?
If you want to ban judges from the bench for being associated with one particular organization, then
what's to stop you from banning them from the bench for any other kind of participation or
membership?
Pretty soon we'll hear that judges are banned for being too short, or too fat, or too young, or, Heaven
forbid, too gay.
Where will it stop?
Please think this through. Please realize that SP14-02, while attempting to prevent injustice, is in fact
passing judgment in a prejudicial manner. Please stop the passage of SP14-02
150. Robert Doutre
Pasadena, CA
D
COMMENT:
Changing the policy so that judges are not allowed to participate in the programs of the Boy Scouts
of America is wrong. There is already provision in this policy for judges to excuse themselves in
cases where partiality might be questioned as stated on Page 3 of your document,
http://www.courts.ca.gov/documents/SP14-02.pdf. If you cannot trust judges to do this of their own
accord, should they be serving in this important capacity in the first place?
“In some instances, membership in certain organizations may have the potential to give an
appearance of partiality, although membership in the organization generally may not be barred by
Canon 2C, Canon 4, or any other specific canon. A judge holding membership in an organization
should disqualify himself or herself whenever doing so would be appropriate in accordance with
Canon 3E(1), 3E(4), or 3E(5) or statutory requirements. In addition, in some circumstances, the
parties or their lawyers may consider a judge’s membership in an organization relevant to the
question of disqualification, even if the judge believes there is no actual basis for disqualification. In
accordance with this canon, a judge should disclose to the parties his or her membership in an
organization, in any proceeding in which that information is reasonably relevant to the question of
disqualification under Code of Civil Procedure section 170.1, even if the judge concludes there is no
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Comment
actual basis for disqualification.”
If you impose the changes outlined you are going against the very Constitutional rights supposedly
protected by not banning members of religious groups. While the Boy Scouts of America is not a
religion, the acknowledgement of a God is mandatory for membership.
As the Scout Oath states:
“On my honor I will do my best
To do my duty to God and my country”
http://www.scouting.org/scoutsource/boyscouts.aspx
BSA policy further explains:
“The Scout Oath, which documents the basic values of Scouting, literally and figuratively addresses
the issue of "duty to God" before duty to country, others and self… “Since its founding in the United
States in 1916, the Boy Scouts of America has had an ongoing commitment to encouraging moral,
ethical and spiritual growth. The BSA believes that the principles set forth in the Scout Oath and Law
are central to the BSA's goals of teaching the values of self-reliance, courage, integrity and
consideration of others.”
http://www.bsa-discrimination.org/html/bsa-god_policy.html
By making these changes you would be denying the right of Judges to worship God as they please.
And if you argue the change should be done because the BSA is not an organized religion, then you
are placing the feet of the judicial branch of government on a slippery slope that will all too soon lead
to the infringement of other rights of this country’s citizens to worship or not worship as they see fit,
all in the name of political expediency.
Since virtually every religion is represented in Scouting, they would all be affected unfairly by this
change. This is discrimination against those who are allegedly discriminating. This is a travesty in the
making. Please do not ban Scouters from serving on the bench.
151. Chris Downs
Aliso Viejo, CA
D
COMMENT:
The portions of the proposal to amend the Code so as to prevent a judicial officer from membership
or affiliation with the Boy Scouts of America is a disturbing attack upon religious liberty and
freedom of association. Ensuring that judges do not discriminate from the bench is imperative to
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Position
Comment
assuring the fair and equitable justice, but a blanket prohibition (as opposed to a case by case
disqualification) based on extra-judicial affiliations in a judge’s private life goes too far and penalizes
the right to freedom of association, free exercise of religion, and freedom of speech.
152. J. Downs
Los Angeles, CA
D
COMMENT:
Outrageous totalitarian move, utterly inconsistent with the concepts of liberty and freedom of
association. Say no to the thought police.
153. Mike Downs
D
COMMENT:
I would like to voice my strong opposition to your proposal.
I know many judges who are active Scouters and this would be a disservice to them and to scouting
to not let them be involved.
With the many positive aspects of character building and civic service, I cannot understand why your
organization would even consider this action.
154. Christian Draper
Provo, UT
D
COMMENT:
I do not believe the founding fathers would approve of this change. I believe the BSA is a noteworthy
and morally upstanding institution, and this should not be grounds from judiciary barring.
155. Florence Draper
Glendale, CA
D
COMMENT:
Unfortunately, I feel that there is a great inequality in the way people are treated who don't agree with
sexual deviants who call themselves "Gay."
Why are people being forced to keep their opinions to themselves? Why can't everyone have their
own opinions? This is supposed to be a free society. What happened?
Suddenly, anyone who believes in a well-balanced, healthy life-style is persecuted. It doesn't make
sense. Gay people have their rights and shouldn't be trampled on, but neither should those who prefer
to live their own standards.
Why punish the judicial system. Let them have their rights like anybody else. Why don't we all try to
find common grounds and live lives that are personally satisfying to us as individuals? Let the judges
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Commentator
156. Scott Draper
Mission Viejo, CA
Position
Comment
be Boy Scout Leaders if they so choose. Why is everyone so controlling now a days. This should be a
free country where everyone's beliefs are respected and they are treated with dignity?
D
COMMENT:
I respectfully disagree with the proposed elimination of the nonprofit youth organization exception
for the following reasons:
1. Judges should be able to disqualify themselves when their membership in the BSA bears on a
material issue in a matter before them. However, they should be allowed to express their Freedom of
Association and Freedom of Speech under the 1st Amendment of the U.S. Constitution by being
members of an organization like the BSA.
2. Public confidence in the impartiality of the judicial system will not be diminished where judges
can disqualify themselves from matters in which their association would potentially bias their
decisions. The fact that they belong to an organization out of touch with others' values is irrelevant if
the judge can't hear the matter in the first place.
3. Promoting the integrity of the judiciary is found in allowing judges to participate in organizations
they choose. Eliminating this exception will stifle a judge's ability to associate under the 1st
Amendment and ultimately diminish the integrity of the judiciary.
4. It is understandable to remove an exception that logically no longer makes sense in the face of new
legislation. However, banning judges from membership in an organization will be going too far. The
BSA will continue to revise its policies, but by jumping the gun by banning judges from the BSA is
premature and inappropriate. It also opens up a dangerous door to proscribing, limiting, and
eventually eliminating other freedoms of the judiciary.
In conclusion, the exception should remain to grant the judiciary their First Amendment right of
freedom of association by being members of an organization like the BSA, yet be able to disqualify
themselves from participation in a matter bearing on their membership in an organization. Public
confidence is not diminished when judges disqualify themselves from matters. The fact that they
belong to an organization out of touch with others' values is irrelevant if the judge can't hear the
matter in the first place. Further, the integrity of the judiciary is enhanced by allowing judges to be
members of the organizations like the BSA; prohibiting them from membership in certain
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Position
Comment
organizations goes too far in fettering judges from exercising their First Amendment rights.
Eliminating this exception could lead to other freedoms of judges being proscribed, limited, and
ultimately eliminated.
Allow the BSA to work out its policies. It would be more prudent to wait for the BSA to work things
out then to jump the gun and ban judges from the organization. Thus, I respectfully disagree.
157. John Dudley
Riverside, CA
D
COMMENT:
Your proposed revision of the canon eliminating judges from volunteering in non-profit
organizations is such as the Boy Scouts appears to be an overreach.
The Boy Scouts of America has already been recognized in a ruling by the Supreme Court of the
United States as a "religious organization."
This proposed change canon will prevent judges from volunteering in Scout units sponsored by their
church.
158. William Dull
Temecula,CA
D
COMMENT:
What happened to freedom of assembly?
159. Barbara Ealy
Pasadena, CA
A
160. Steven Emmons
Laguna Niguel, CA
D
COMMENT:
The current proposal is an embarrassment to our nation's principles of free thought, free speech and
free association, and it should be rejected in the interests of freedom. It is also an embarrassment to
judges everywhere.
Just as we should expect Christian judges to be able to rule without prejudice in matters involving
Jews, Muslims, atheists, etc., we should expect judges who are members of the Boy Scouts of
America to rule without prejudice in matters involving homosexuals who are married.
Do we not expect Democrat judges to be able to rule without prejudice in matters involving
Democrat plaintiff versus a Republican defendant?
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Commentator
Position
Comment
It is most absurd to assume that a judge who is a member of the BSA would be prejudiced against a
married gay person. By their duty to society they are charged with fair and equal application of the
law, without prejudice not with bringing their personal beliefs to the bench.
161. Mark Eisenhut
Temecula, CA
D
COMMENT:
While couched in terms of wanting to protect the appearance of "impartiality" of the judiciary, this is
instead an alarming intrusion on religious liberty and freedom of speech, and seeks to eliminate an
entire class of otherwise highly qualified judges with diverse backgrounds. Further, why would one
who hides his/her beliefs by disassociating with any organization that might suggest a set of beliefs
appear more "impartial" than one who more openly and honestly maintains his/her affiliations. Also,
if a judge is banned from associating with the Boy Scouts for this reason, why should one not also be
banned from affiliating with any religious organization that holds similar beliefs, or with a political
party which endorses similar policies? Or, why should we not then move to the next step, and adopt
a rule requiring all judges to be members of and avow allegiance to a state-imposed religion that
mandates a certain set of beliefs, all of which are supposedly intended to promote "impartiality." I
would urge the committee to also consider the following, and withdraw its recommendation:
•
Many judicial officers serve as BSA leaders—especially among Latter-day Saints, who
accept this role as a matter of religious duty. By their BSA leadership, these judicial officers—men
and women alike—provide excellent role models for young men and women.
•
There is no evidence that any judicial officer who belongs to BSA has exhibited bias from
the bench on the basis of sexual orientation.
•
Prohibiting membership in BSA does violence to the ideal of viewpoint diversity among
bench officers. Many such officers have deep and reasonable convictions concerning the morality of
162. Ann M. Eckersall
Palm Desert, CA
A
COMMENT:
I urge you to support a proposal to prohibit state judges from belonging to organizations, such
as the Boy Scouts of America, which discriminate against lesbian, gay, bisexual or transgender
(LGBT) people.
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Commentator
Position
Comment
Scouts.
than the US Supreme Court has ruled that the federal government must
straight". I and a growing number of Americans believe that discrimination against LGBT people
is immoral. And Judges, when they join the Scouts, or serve in scouting leadership positions, are,
in effect, expressing support for that immoral policy.
organizations that discriminate against LGBT people. I urge you to support the proposed ban on
judges joining such organizations.
163. Ellen
A
COMMENT:
This is a great idea. Nobody should be allowed to discriminate against others for being themselves.
164. Bryan Elliott
Chula Vista, CA
D
COMMENT:
California is a state with a wide variety of residents. If San Francisco can dictate how the rest of the
state is supposed to"think"then the definition of justice will never have meaning again.
165. John Elliott
San Francisco, CA
A
COMMENT:
Agree
166. Christine Ellsworth
Yucaipa, CA
D
COMMENT:
These proposed changes are what's discriminatory. I do NOT agree.
167. David Ellsworth
Yucaipa , CA
D
COMMENT:
How is it that a group who’s Law is to be, Trustworthy, Loyal, Helpful, Friendly, Courteous, Kind,
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Commentator
Position
Comment
Obedient, Cheerful, Thrifty, Brave, Clean, and Reverent, could be considered unethical to be a part
of? Especially from a group, (The Justice System), that has also sworn an oath with similar wording?
Do the word Life Liberty and Pursuit of happiness mean anything anymore? How about the First
amendment? How can one with any Honor of Justice even consider this action as legitimate?
•
•
Please consider my voice with the weight of potentially thousands, who have not heard about or even
considered the fact that the California Supreme court would even consider this type of action a
possibility, who would wholeheartedly disagree with this action. Everyone has the right to EQUAL
JUSTICE.
I urge you to reconsider the consequences’ of such an action.
168. Eve Ellsworth
Yucaipa, CA
D
COMMENT:
I am deeply concerned that such a position has even been proposed. This is blatant discrimination of
an opposing viewpoint. No matter how one feels about the homosexual issue; to suggest that these
judicial officers can't act impartially is intolerant and narrow minded.
169. Charles Elton
Chico, CA
D
COMMENT:
•
•
•
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A Commentator
170. Matthew Enger
San Marino, CA
Position
Comment
A
COMMENT:
I strongly support the proposed amendments to canon 2C. If I were ever prosecuted, or if I ever
brought a discrimination case to the courts, I would feel extremely uncomfortable having the case
tried before a judge who is a member of the Boy Scouts of America because I am a young gay man.
As a Californian and a strong supporter of an independent judiciary, I urge the Supreme Court to
accept the proposed amendments to canon 2C. There is no place for the appearance of discrimination,
intolerance or bias in Californian courts.
171. Equality California
By Rene Matinez
San Jose, CA
A
COMMENT:
Equality California, in partnership with Senator Ricardo Lara, is also trying to close a similar
loophole in California’s tax law. SB 323, introduced last year by Sen. Lara and sponsored by EQCA,
ensures that nonprofit youth organizations that receive special state tax privileges comply with
California’s nondiscrimination laws. Specifically, this bill revokes the special tax exempt status
awarded to nonprofit youth organizations if they violate our state’s nondiscrimination laws.
I think it’s inappropriate and just plain wrong for any branch of the government to sanction
discrimination in any way. I applaud the California Supreme Court and its ethics advisory committee
for considering steps to finally remove this loophole, and we hope you’ll encourage them to do so.
I support your efforts to close the tax loophole for nonprofit youth organizations that discriminate.
by Joseph Mayer
San Diego, CA
A
COMMENT:
I agree with the propose change that would ban judges from belonging to groups that discriminate on
the basis of race, gender, religion and sexual orientation; no exceptions.
By Susan McCabe
Marina Del Rey, CA
A
COMMENT:
Please adopt SP14-02 that would prohibit members of the judiciary from participating in non-profit
youth organizations that discriminate based on sexual orientation. Judges should be held to the
highest standards and should not be allowed to participate in organizations that discriminate against
any class of people.
174. Eric
New York City, NY
A
COMMENT:
Please remove the ability for these officials to be a part of ANY organization that discriminates. We
aren't on this planet long enough to discriminate and cause others suffering.
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A Commentator
175. Keith Ericson
San Diego, CA
Position
Comment
A
COMMENT:
Discrimination is wrong. In our country where everyone is equal before the law no one involved in
enforcing the law should be involved with organizations that discriminate.
176. John Ernest
CA
D
COMMENT:
We advise that you Reject the (Feb 5) Proposed Amendments to Canon 2C of the Code of Judicial
Ethics, and the corresponding changes to the Commentaries on 2C and to 3E.
1) As of the US Supreme Court’s decision in Hurley in 1995, there is a right of free association,
including the right of private organizations to not associate with other groups. The common-sense
application of Hurley and the underlying personal rights of association, to individuals who are
judges in California, is that when there is any other way (as there is in the exception of canon 2C,
coupled with the advisement of the appearance of partiality under canon 3E) they also California
should also have the continued right to associate with the Boy Scouts, among others, or to
associate with youth organizations approved by the proponents. The proposed change does
unacceptable damage to these judges.
2) It is obvious that there remains a sharp divide, even in California and even at the present
time, over the issues driving this proposal. There remains an even divide among the California
electorate, as to whether an organization that discriminates on the basis of sexual orientation
practices invidious discrimination, or rather what is invidious is the attempt to sideline such
organizations and punish individuals supporting them. Given the unsettled views of the
electorate, it is best to rely on judges’ personal discretion.
3) Underlying the Boy Scouts’ policy of vetting youth contact leadership by factors including
sexual orientation (now viewing it as policy; discriminatory only in the sense of selection; setting
aside the potential connotation of invidious usage), is the fundamental principle that youth in an
organization are best protected from sexual involvement and attack when their leaders have no
sexual interest in them. This has been proven with horrible force through the epidemiology of the
Catholic church’s sexual abuse scandal of the last generation--the percentages of personal
leadership failure to avoid sexual actions where much higher where sexual attraction was
involved. The Scouts have a policy that can be shown to strengthen the protection of youth
against sexual attack that ought to be commended. The implementation of that protection
involves a lesser restriction on the choice of leaders, and it is only the lesser restriction that this
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Commentator
Position
Comment
Proposal terms invidious. Look beyond the restriction to the larger affirmative protective purpose.
Don’t weaken that protection by changing Canon 2C.
4) This Proposal claims (on page 4 of the Invitation to Comment) that “prohibiting judges from
being members of or playing a leadership role in the BSA, would enhance public confidence in
the impartiality of the judiciary.” Absolutely not. If this is the purpose, then it should be rejected.
A) Speaking for myself, it would decrease my confidence. B) Aligning the judiciary strictly on
one side of an unsettled and divisive issue, is likely to tar the judiciary as a partisan organization
rather than a neutral, disinterested one in the minds of society--not just the disenfranchised, but
also the proposal supporters with doubts.
5) Regardless of the proponents’ true motivation, it is not inconsistent with the charge that it is
really a veiled attempt to remove one’s opponents from public life and positions of power and
influence. This charge cannot be avoided. Canon 3E expresses the Supreme Court’s formal
policy concern about “membership” that “may have the potential to give an appearance of
partiality” then invoking the duty to disclose. It is inevitable, not just a potentiality, that adopting
this Proposal will give the appearance of partiality of the Court and every judge acting under its
canon. In this sense alone, this Proposal is intrinsically unviable! Consider the evidence of just
the last two weeks. The board of Mozilla fired its CEO because Brendan Eich made a middling
political contribution years ago (it happened to be on the same third rail, the politics of sexual
equality). Not two days later even progressive commentators were bemoaning the “self-inflicted
wound” of the reach for all-points sexual equality. I ask you in your Advisory Review to protect
the judiciary from the harm of the Proponents’ similar overreach.
6) One of the arguments for looking askance at the Scouts and military organizations with
similar exclusionary rules--and to my mind almost the only good one--is that they impair the quest
for Diversity. If Diversity be a good thing, it would be wise to retain those motivated to be
scoutmasters in judging; and good for judges who might disagree with BSA policy to be able to
participate in its development.
7) It is astounding to me that the California judiciary, which has benefited and been
strengthened by countless graduates of the BSA, trained in thinking and morals and to seize the
opportunity to act for society, should now turn its back on the BSA.
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Commentator
177. Jody Evans
Hemet, CA
Position
D
Comment
8) Might I also note that some of these points also apply to some official sponsored military
organizations, not directly part of the Department of Defense.
COMMENT:
Invidious Discrimination is treating a class of persons unequally in a manner that is malicious,
hostile, or damaging. If there is rational justification for the different treatment, then the
discrimination is not invidious.
If non-profit youth organizations reserve the right to reject the application and/or services of those
who openly practice a lifestyle which is considered immoral by a majority of the families whose
children they serve and they do this in a forthright and respectful way, I do not see how this can be
deemed invidious discrimination. What are the criteria for categorizing an organization to be
practicing invidious discrimination?
If the BSA and other non-profit youth organizations allow those who hold a different belief
concerning sexual orientation to serve as long as they do not openly express such orientation (in
opposition to the principles of the organization), it seems that judges should also be allowed to hold
membership in such non-profit youth organizations as long as their association with said organization
does not interfere in the right performance of their duties as judges.
If we don't first prove that organizations practice invidious discrimination, aren't we, the people,
practicing invidious discrimination against the judges who would be members of said organizations?
Please consider the above when proposing changes to the judicial code of ethics.
178. James F.
Auburn, CA
D
COMMENT:
I do not agree with this proposal. As a Eagle Scout recipient, and outstanding citizen in my
community, and one that lives the Scout Law, I will always be associated with the Boy Scouts of
America. I've earned the right to serve my country, in politics, and in the judicial system. To say
otherwise is itself discriminatory.
Scout Law:
A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave,
clean, and reverent.
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Commentator
Position
Comment
179. Joe A. Fagundes
Morro Bay, CA
D
COMMENT:
I understand that the ethics advisory committee to the California Supreme Court wants to prohibit
state judges from belonging to the Boy Scouts of America. I find this preposterous!!! The Boy
Scouts have been around for more than 100 years doing great things for our youth. And, now this
bogus committee wants to trample on the Constitutional rights of state judges! This ethics group
wants to enhance public confidence of the judiciary? Bull crap! It wants to trample on individual
rights just like the Nazi Brown Shirts of Nazi Germany! Instead of enhancing confidence and respect,
this bogus ethics committee will engender total contempt of the judiciary!!!
180. Brian D. Fahy
Los Angeles, CA
D
COMMENT:
Thank you for the opportunity to weigh in on the proposed rule change. I am not a Boy Scout and
have no affiliation with the organization. I have no children, but if I did, I am not sure I would
encourage them to participate in the Scouts program.
However, even though I have no vested interest in the organization, as an attorney I have a vested
interest in free speech and association, regardless of viewpoint. It is out concern for these rights that I
write to oppose the proposed change.
Even a casual observer can see that this proposed change singles out the Boy Scouts for unequal
treatment under the law by making affiliation with the organization a disqualification for judicial
office in California.
If this proposed rule passes, the Council will have unnecessarily taken sides in a political debate and
drawn a false equivalence between a belief in traditional marriage, which the Boy Scout hold, and
impermissible discrimination. What is the basis for this conclusion?
Is there any other public office in California that is off limits on the basis of holding view consistent
with the BSA? For instance, if a BSA member could become governor or secretary of state, then why
not serve as a judge? Doesn't the judge's oath of impartiality and to uphold the state's constitution
mean anything? Or is it thought BSA members would be unable to enforce CA law? If that is the
concern, what is the basis for it?
Moreover, I am unaware of any need requiring the proposed change. Why the need for the change?
And why now? Have there been any cases, even one, where injustice was wrought at the hands of a
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Position
Comment
judge who also happened to be a member of the Boy Scouts? No such cases are cited in the
comments explaining the proposed rule.
Further, has anyone aside from the San Francisco and Santa Clara bar associations pushed for this
change? Why should the entire state, and all of the many judges of differing viewpoints from across
the state who compromise the state's judiciary, but subject to a rule apparently only desired by two
county's bar associations?
Absent any real need, or any request for such a change from the judges across the state, it is clear this
proposed change has no logical explanation aside from political pressure, and it will be a sad day for
the California legal system to pronounce that, on the contrived basis of a perceived increase in
"public confidence" in the judiciary, judges who have a difference of opinion regarding sexual
orientation are categorically unfit for office.
What of the many Jewish, Mormon, Christian, Catholic, and other religious judges who happen to
agree with the Boy Scouts? Will they be disrobed and publicly excoriated for holding to a belief that
within the course of just a few years has become politically verboten? Will they be branded as
invidious bigots? Is there really no room in the judiciary for a difference of perspective on the issue
of sexual orientation? If there is not, then freedom of speech and association truly have no meaning
for the state's judiciary.
Further, what is the basis for excluding the exception for youth organizations like the Boy Scouts
while retaining the exception for religious organizations? Surely the Council is aware that the BSA is
largely supported and staffed by religious people.
Moreover, upon what authority does the Council pronounce that a difference of opinion on sexual
orientation constitutes invidious discrimination? If anyone is to make this determination, it is the
people, from whom all governmental sovereignty and legitimacy originates. On that note, do the
people, whom the judiciary is meant to serve and protect, have any recourse if the change is made?
Also, how is confidence in the judiciary increased if the proposed change is enacted and someone
who agrees with the Boy Scouts knows that a judge currently serving is removed because he or she is
a member of BSA? How will that litigant have any confidence that the system will give him or her a
fair shake? The hypotheticals are not hard to imagine. Envision a religious plaintiff suing for
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A
Commentator
Position
Comment
religious discrimination or violation of his or her free speech rights. That plaintiff, if she or she
happens to hold views consistent with the BSA, will feel that the court already thinks he or she is an
invidious bigot based upon his or her views on sexual orientation. How does that inspire confidence
in the courts? How does that further equal justice under the law? Thus, the proposed change would
only further erode the public's confidence in the courts.
Moreover, it is ironic that a right to publicly disagree on the issue of sexual orientation is a protected
free speech right under the US and CA constitutions, but this proposed change would effectively
carve out a free speech exception for judges for sexual orientation. Again, on what basis?
If the proposed change occurs, the committee will have sanctioned a BSA 170.6 challenge. This will
lead to litigants striking otherwise eminently qualified judges for holding a difference of opinion on
sexual orientation. But it seems the proposed rule would establish that this difference of opinion is
unacceptable in California. Henceforth, all religious persons, or nonreligious persons who agree with
the BSA on sexual orientation, need not apply to be judges in California.
The implications of the rule show its stupidity. Presumably, conservative Catholics like Chief Justice
John Roberts and associate Justices Antonin Scalia and Samuel Alito, assuming they held views
consistent with the BSA, would be unfit to be judges in California. How patently ridiculous is a rule
that would disqualify an otherwise qualified, excellent judge on the grounds that he or she finds
himself on the wrong side of the political thought police. For if the proposed rule passes, that is all
that this is. Bill Maher calls it the "gay rights mafia," and I fear the California judiciary is about to be
the latest victim.
I respectfully oppose the proposed change.
181. Garrett Fahy
Los Angeles, CA
D
COMMENT:
There is no valid basis for penalizing judges for supporting a vital organization, and no basis for
penalizing a vital organization for seeking the wisdom and input of judges.
The assumption that private associations necessarily, or potentially, affect public duties is flawed.
182. Jessie Fahy
Los Angeles, CA
A
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Commentator
183. Steven R. Faires
Walnut Creek, CA
Position
D
Comment
COMMENT:
I oppose these amendments as a citizen and as a member of the State Bar.
BSA has done immense good in this nation and state for over a century. To punish this organization
at the very moment it is becoming MORE inclusive seems incongruous.
In addition, it makes no sense to prohibit membership in discriminatory SOCIAL organizations while
permitting membership in discriminatory RELIGIOUS bodies. Some religions advocate the death
penalty for homosexuals. If a follower of such a faith can serve impartially on the bench, there is no
reason why a Boy Scout leader cannot not. Freedom of association is as just sacred as freedom of
religion. The line drawn by the proposed amendment is indefensible from a constitutional
perspective.
184. LuRetta Fairman
Sacramento, CA
A
185. Melissa Falke
Turlock, CA
D
COMMENT:
By banning scout leaders from being judges, our state would be showing intolerance to the religious
beliefs of many. These beliefs include the family being a fundamental unit of society and that
marriage between a man and a woman is ordained of God.
In article VI of the United States Constitution, it states the following, "The Senators and
Representatives before mentioned, and the Members of the several State Legislatures, and all
executive and judicial Officers, both of the United States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United States."
I believe that to rule in favor of Proposal SP14-02 would be to oppose the United States Constitution.
I'm a proud American and say let anyone be a judge who is qualified, including scout masters.
186. B. Farley
Orem, UT
D
COMMENT:
Sets a bad precedent by opening the door for further expansion beyond judges to other officials, as
well as hinting toward a discriminatory attitude against anyone who wants to uphold traditional
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Commentator
Position
Comment
values over those being legally (as well as politically) pushed upon ordinary citizens.
187. Dr. Mimsy Farmer
New York, NY
D
COMMENT:
shoop da boop.
188. Francis X. Fashing
Palm Desert, CA
A
COMMENT:
Judges must be seen as impartial and fair you all who come before them. Membership in any
organization that actively practices discrimination based upon factors not in control if the individual
being discriminated against calls into question a judge's impartiality.
189. Linda Faust
Kingsburg, CA
D
COMMENT:
After reading the article in the paper concerning a proposal to prohibit judges from belonging to the
Boy Scouts of America, I was appalled. There is nothing in the Constitution that prohibits this
membership. Why do you need another law (proposal)? We have enough laws and rules that should
cover any misconduct by a judge. There was no proposal when a gay judge ruled on the defense of
marriage act. There was certainly a conflict of interest with this decision. Stop the social engineering.
There are many problems that need oversight, this is not one of them.
190. David L Fenn
Beaumont, CA
D
COMMENT:
191. Misty Fenn
Beaumont, CA
D
COMMENT:
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Commentator
192. Julie Fiedler
San Ramon, CA
Position
Comment
D
COMMENT:
I oppose the change to Canon 2C eliminating the exception for judges to be members of a nonprofit
organization such as the Boy Scouts from the prohibition from holding membership in an
organization that practices invidious discrimination.
Organizations such as the Boy Scouts serve a necessary purpose in supporting responsible behavior
in a world where individual irresponsibility is rampant and violence is becoming more and more the
norm. Banning judges from membership is extreme political correctness that is detrimental to our
society.
193. Frank Fisher
Washington, DC
D
COMMENT:
I strongly oppose the change to Canon 2 proposed by the California Supreme Court Advisory
Committee on the Code of Judicial Ethics which would prevent California judges from being
members of organizations considered discriminatory that are non-profit youth organizations, such as
the Boy Scouts. Even if one agrees that the Boy Scouts are discriminatory, that organization does so
much good for youth in our communities that we should not prevent judges from being members of
those organizations. Further, the Boy Scouts do not discriminate with respect to youth. With respect
to adult leaders, there are sufficient reasons for not permitting homosexual men to be adult leaders of
easily-manipulated young boys.
The change to Canon 2 would be completely inappropriate.
194. Ashlee Fitch
Santa Ana, CA
D
COMMENT:
I urge rejection of the proposal to amend SP14-02 to require judicial officers to renounce or avoid
any affiliation with Boy Scouts of America (BSA). While ensuring that the judiciary is fair and
impartial in rulings from the bench, forbidding judicial officers from refraining from associations
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Commentator
Position
Comment
with a long-established and esteemed youth organization such as BSA is not a compelling interest of
government nor is it reasonably related to a legitimate state interest. Judicial officers are capable of
fairness and impartiality notwithstanding private affiliations with a youth organization such as BSA.
For example, judges are permitted to be members of churches whose ideology, teaching, and practice
is not dissimilar to that of the BSA. It is of course the case that judges of integrity can remain
impartial and fair on the bench notwithstanding that their church teaches that the gay and lesbian
lifestyle is morally wrong. All the time they separate their personal views from their professional
duties. Accordingly, the proposed rule change is unnecessary.
the judiciary and the rule of law. I urge its rejection.
195. Michael Floryan
Porter Ranch, CA
A
196. Sean Fontenay
Carmel, CA
D
COMMENT:
I am writing to encourage your committee to discontinue consideration of the proposal that would
prohibit judges from serving as leaders within the Boy Scout community.
In our particular community, Judge Larry Hayes is a beloved figure in Troop 127. He is, in fact, a
major reason for our 12 year old son to join that Troop last year. His openness, accountability and
enthusiasm is appreciated by the kids and parents alike. What makes Larry Hayes a respected
member of your judicial community is also at work in his activities with scouting.
When a good person is taking the initiative to improve and sustain his/her community, we should
support and encourage more of that form of involvement. It affirms the societal role of both the
Judiciary and Scouts to have such an individual contribute their energies on behalf of youth.
197. Christine Formica
Hemet, CA
D
COMMENT:
A judge decides whether a law has been broken, based upon evidence and testimonies. They do not
decide on morality issues. Each judge is going to have his own individual set of moral beliefs,
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Comment
regardless of his associations. However, his job is to separate his opinions from the facts. That's
why he is the judge.
By removing the exception for nonprofit organizations, specifically because of the BSA's policy, you
are eliminating many qualified candidates from being able to be a judge, regardless of their ability to
perform their job well without discrimination. And what if they were involved in earlier years?
Does that automatically disqualify them? Please don't remove an entire segment of candidates
because of trying to conform to other states' policies.
I would hope that judges are chosen not for their personal moral beliefs but for their ability to
judicate wisely.
One of the best things about America is the acceptance of our diversity -- E Pluribus Unum. Our
differences is what makes our country strong -- don't try to eliminate those differences under the
guise of "conflict of interest".
198. Richard Frank
San Diego, CA
A
199. Jeff Frazier
Redlands, CA
D
COMMENT:
Preventing judges from being members of the Boy Scouts of America would be a terrible idea.
200. Freedom X
By Paul A. Hoffman
Attorney and Member of Board
Los Angeles, CA
AM
COMMENT:
As a member of the Board of Directors of Freedom X, a legal advocacy organization that prosecutes
cases involving the defense of the First Amendment rights of speech, association, and religious
liberty, I write to urge you not to adopt SP 14-02 in its present form.
In February, I wrote an article in the Daily Journal outlining the reasons why I believe that all judges
should oppose SP 14-02 in its present form. After the article was published, I was contacted by many
judges and attorneys who oppose this measure. The reasons they gave me were varied, but among
the most strongly held by judges who are members of the Boy Scouts is the concern over: (1) loss of
participation in a beloved youth organization that they grew up with; (2) loss of the right to
participate as a troop or pack leader with their own sons, grandsons, or boys in their church,
synagogue or community; and (3) loss of the right to influence boys and young men in their religious
organizations which adopt the Scouting program as a matter of religious devotion, calling, or duty.
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Commentator
Position
Comment
As a result, if the present proposal passes, some of these judges are considering litigation to vindicate
their constitutional rights, if necessary.
As part of your duties on the ethics committee, you are required to consider the admonition of the
Preamble to the California Code of Judicial Ethics, which states that the canons of judicial ethics “are
to be applied in conformance with constitutional requirements, statutes, other court rules, and
decisional law.” (Emphasis added.)
As you undoubtedly know, and notwithstanding the Code of Judicial Ethics, a judge has
constitutional rights of expressive association, not just rights of religious association. Judicial
regulations, even those undertaken for the purpose of achieving a compelling state interest, such as
maintaining the impartiality of the judiciary, must be narrowly tailored to achieve that compelling
objective, so as not to tread unnecessarily on the constitutional interest. See, e.g., Republican Party
of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (strict scrutiny review of judicial ethics
commission regulation); Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) (judicial ethics rule
prohibiting judges' political party membership affiliation in order to preserve impartiality of judiciary
was unconstitutional speech restriction where recusal was workable alternative); Carey v. Wolnitzek,
2006 WL 2916814 (E.D.Ky. 2006) (judicial canon barring partisan activity was unconstitutional
because it was not narrowly tailored to achieve compelling state interest); Bauer v. Shepard, 634
F.Supp.2d 912 (N.D.Ind. 2009) (judicial code section prohibiting certain "partisan activities" found
constitutional under strict scrutiny analysis because the code allowed judges to maintain political
membership affiliation and to attend political events, even if it also barred judges from being political
leaders or holding office).
It is therefore disappointing to find that the committee is recommending the removal of that portion
of the Advisory Committee Commentary which states: “Membership in nonprofit youth
organizations is not barred to accommodate individual rights of intimate association and free
expression.” This portion of the commentary may be modified, as I suggest below, but should not be
entirely removed because case law, as shown above, clearly supports a judge’s right to associate with
organizations such as the Boy Scouts and no change in the law relating to the right to association has
occurred since this language was adopted.
Instead, since the law relating to the right of association of judges has not changed in any significant
way, the removal of such language suggests that the committee is knowingly invading the
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Comment
constitutional rights of those judges who wish to continue their membership and participation in the
Boy Scouts.
Page 4 of the Invitation to Comment on SP 14-02 supports the proposition that the committee’s intent
is to specifically target the Boy Scouts, even though the youth group exception says nothing
specifically about the Boy Scouts. The unnecessary commentary on page 4, interpreting the
elimination of the youth group exception to mean that judges will be prohibited “from being
members or playing a leadership role in the BSA” is a radical interpretation that is inconsistent with
the above case law and with judicial ethics opinions around the country. See Ariz. Judicial Ethics
Comm., Op. 00-05 (2000), available at http://www.azcourts.gov/portals/37/ethics_opinions/2000/0005-A.pdf (involvement in Boy Scouts is not proscribed by the invidious discrimination clause); Del.
Judicial Ethics Advisory Comm., Op. 2006-4 (2006), available at
http://courts.delaware.gov/jeac/opns/06-4.pdf (since Boy Scouts have constitutional right to set
standards for membership, judges may be members of Boy Scouts and therefore do not run afoul of
invidious discrimination clause); Ind. Comm’n on Judicial Qualifications, Op. 1-94 (1994), available
at http://www.in.gov/judiciary/jud-qual/docs/adops/1-94.pdf; Mass. Comm. On Judicial Ethics, Op.
2001-1 (2001), available at http://www.mass.gov/court/sjc/cje/2001-1h.html (Boy Scout membership
does not violate invidious discrimination clause); Tex. Comm. on Judicial Ethics, Op. 158 (1993),
available at
http://www.courts.state.tx.us/judethics/ISH60htmcfm?fa=pos_ethics_dispopin&mode=0401
(membership in Boy Scouts does not violate Texas’ impartiality clause). But see Wash. Ethics
Advisory Comm., Op. 04-01 (2004), available at
http://www.courts.wa.gov/programs_orgs/pos_ethics/index.cfm?fa=pos_ethics.dispopin&mode=040
1 (although judges were allowed to be members and troop leaders of local units, they could not hold
policy-making leadership positions in Boy Scouts).
Analyzing judicial ethics opinions in nearly every state in the nation, D. Suhr, The Religious Liberty
of Judges, 20 Wm. & Mary Bill Rts. J. 179 (2011), states that “no ethics opinion has found that the
Boy Scouts engage in invidious discrimination.” Id. at 205.
This is in part because the Boy Scouts have a constitutional right of freedom of association, not
unlike that of religious organizations, to exclude certain individuals who would interfere with their
mission. For example, who would claim that a Jewish synagogue or an Islamic mosque cannot
exclude Christians or Hindus or other non-adherents from membership or participation in their
services or ceremonies, or vice versa? Does that exclusion make judges who belong to such religions
guilty of belonging to an organization that practices invidious discrimination that excludes people on
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the basis of their religion, or even their sexual orientation?
But, you might say, those kinds of associations do not violate Canon 2.C because there is an express
exemption for religious organizations. That is missing the point. Regardless whether there was an
express exemption for religious organizations, Jewish and Muslim and Christian and other judges
belonging to religious organizations are exempt from Canon 2.C because of the California and United
States constitutions, not because the ethics committee decided to exempt them. The same holds true
for judges’ associational rights with the Boy Scouts.
The committee very much appears to be acting as if it can freely revoke judges' First Amendment
rights without regard for constitutional or due process restrictions. The committee cannot do so
without crafting a compelling, narrow regulation that is no broader or deeper than necessary to
achieve its ends. Unfortunately, SP 14-02 has failed to do so because it is overbroad, over-inclusive,
and under-inclusive. It is under-inclusive because it allows all judges to associate with plainly
"discriminatory" religion organizations without restriction, which makes the prohibition against the
Boy Scouts ineffective in achieving an “impartial” judiciary or the appearance of one.
SP 14-02 is also over-inclusive because there is no evidence that judges who are members of Boy
Scouts universally agree with BSA’s position. Many just want to work with their sons, grandsons,
and boys in their congregation or neighborhood as a public service. Most of them have never even
discussed the policy at issue. Assuming that such individuals are somehow engaging in invidious
discrimination is a grand evidentiary leap without any foundation. Assuming that any judge who
participates in Boy Scouts is somehow prejudiced against homosexuals, when he or she had nothing
to do with the creation or continuation of the policy and is only involved therein as part of his or her
religious program, gives the strong appearance that the committee itself is engaging in a form of
religious bigotry against judges whose religions require them to participate as leaders of boys in the
Boy Scouts.
Finally, SP 14-02 is also overbroad because recusal is a much more targeted and effective remedy in
attacking any appearance of partiality. See Siefert, supra (no need for restricting membership
affiliation where recusal will effectively address impartiality concerns).
Based on the foregoing, Freedom X stands ready to represent any and all judges whose rights are
adversely affected by approval, implementation, and selective enforcement of SP 14-02 against
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Comment
judges who are members of the Boy Scouts, based on their First Amendment rights of speech,
association, free exercise of religion, etc.
As a result, to avoid this undesirable, expensive, and unpredictable scenario and to eliminate the
foregoing infirmities in SP 14-02, Freedom X urges the committee to modify its proposal as follows:
1.
Go ahead and eliminate the nonprofit youth organization exception to Canon 2.C, but also
eliminate the last three paragraphs in Section B, Rationale for Proposal to Eliminate Nonprofit Youth
Organization Exception. The commentary on page 4 of Section B only makes the committee appear
to be singling out the Boy Scouts for selective enforcement. There is no need to speculate about
whether repealing the exception thereby prohibits judges from being members of Boy Scouts or
holding non-policy-making, local troop leadership positions any more than any other group that
exclusively serves or benefits particular ethnic, religious, racial, or gender-based groups. By
eliminating the Boy Scouts from the commentary, the committee can more effectively counter the
accusation that this proposal is unconstitutionally targeting judge affiliates of the Boy Scouts for
selective prosecution.
2.
If the committee chooses to keep portions of the commentary in the last three paragraphs, it
should state that it is not expressing an opinion on whether judges may associate with the Boy Scouts
if it is done as a matter of duty, assignment, or calling in connection with a religious organization
with which they affiliate. Without this exception, the committee falls prey to accusations that they
are discriminating against the religious rights and duties of judges who are members of religious
organizations who have officially adopted the Boy Scouts program as part of their youth program in
their church or synagogue.
3.
Change the commentary to Canon 2.C to state: “Membership in nonprofit youth
organizations may still be allowed, notwithstanding the elimination of the exception for nonprofit
youth organizations because the individual rights of intimate association and free expression derive
from sources other than this Code.” This change is necessary to reflect a more objective statement of
the relevant legal standards and to eliminate accusations of bias and viewpoint discrimination on the
part of the committee and its members.
4.
If the committee feels a need to restrict judges’ membership in Boy Scouts, it should limit
such restrictions to policy-making leadership positions or large-scale fund-raising, consistent with the
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principles expressed in the case law and judicial ethics opinions cited above. Attempts to wholesale
bar judges from BSA membership or low-level troop positions is both unnecessarily overbroad, is not
nearly as likely to be upheld, and will threaten the viability of the entire regulation in a litigation
setting. Hopefully, it will not be necessary to litigate such an overbroad proposal.
201. Brian Freeman
Escondido, CA
D
202. Jacob Fry
Yucaipa, CA
D
COMMENT:
This is an attack on religious (LDS) candidates for judicial positions. I disagree and oppose this
legislation. Where is the respect for religious persons and their beliefs; their beliefs should not be
subjugated for a "new" breed of rights - Judges are to apply the law as the law is written and as
precedent is established. Members of the judiciary can do this while being engaged in community
service through the BSA.
203. Dan Fuller
Mission Viejo, CA
D
COMMENT:
I find it incredible that freedom of speech, association and religion apparently mean nothing in
California. This is nothing but a form of coercion aimed at people who disagree with the prevailing
mood disguised as "protecting" individual rights...meaning "particular" rights only. The Boy Scouts
of America! Have we really come to the point where we have to defend that institution and those who
associate with it from this kind of an attack? Heaven help us.
204. By Jay D. Fullman
La Habra, CA
D
COMMENT:
The proposed change violates fundamental rights of free speech and free association.
205. Lori Funk
Chandler, AZ
D
COMMENT:
This is wrong, the BSA teaches boys to be well-rounded individuals and strong leaders. Banning
someone from being a judge based on their affiliation with this organization would be a horrible idea,
punishing a long-standing respected institution and its associates.
206. Nate Furgeson
Lincoln, CA
D
COMMENT:
I disagree with this proposal that would prohibit a judicial officer to affiliate with or be member of
organizations like Boy Scouts of America.
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207. Lindsey G.
Yucaipa, CA
Position
D
208. Hon. Peter L. Gallagher
Hon. Gary G. Kreep
Hon. Howard Shore
San Diego, CA
D
Comment
COMMENT:
The undersigned Judges of the Superior Court hereby do register our opposition to the proposed ban
of California State Judicial Officers having any affiliation with, or being involved in the activities of,
the Boy Scouts of America (BSA). The undersigned, at one time or another in their lives, have all
been members of the BSA, have been Cub Scouts, and/or have donated to, volunteered with, and/or
otherwise been involved in, this fine organization.
The BSA has been a positive influence in the lives of millions of young men in this country, and
abroad. While controversy has swirled around this great organization over the past few years, the
efforts of a few to force their wills, and their political agenda, upon the membership, the leadership,
and those otherwise involved in it, has been a travesty. The young men involved in Cub and Boy
Scouts should not be punished, nor should those who play such a vital part in this organization
through their volunteer efforts, as they would be by this ban.
While other Judges objecting to this proposal have taken the position that the ban should be delayed a
year, to allow Judges currently having obligations to specific BSA troops, councils, etc., to complete
those duties, it is the position of the undersigned that the ban should not be imposed AT ALL.
Despite the demands of political correctness inherent in this ban, the Constitutional rights of the
BSA, itself, and the minors and adults involved therein, and the Judges being directly impacted, are
being infringed as a result.
The ban would have a significant adverse impact on the associational rights of the Boy Scouts of
America. While the proposed change in the ethical rules is aimed directly at the conduct of judges, in
so regulating the conduct of judges, the proposed change also regulates BSA, by telling BSA that
they may not have a certain class of citizens as members. Thus, the First Amendment rights of BSA
are also implicated. Such rights are protected by the United States Constitution, as decided in Boy
Scout of America v. Dale, 530 U.S. 640 (2000). Additionally, as an expressive organization, the BSA
has a right to engage in such activity even if, in the process, it promotes its own viewpoint, and even
though such a right would discriminate against others whose views are not compatible with BSA.
See Hurley v. Irish-American Gays, 515 U.S. 557 (1995). Prohibiting judges from serving BSA
would mean that the state would be empowered to impair the associational and expressive rights of
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BSA, an act which it cannot do.
Further, the First Amendment rights of Judges themselves are directly affected by the ban.
According to page 4 of the INVITATION TO COMMENT, the reference to “individual rights of
intimate association and free expression. . .” will be deleted from the Commentary following Canon
2. Apparently, such rights are believed to be not applicable to Judges. However, Judges still retain
their Constitutional rights. To quote Chief Justice Byrd’s Dissent in Ramirez v. State Bar, Supreme
Court of California, In Bank. November 10, 1980, 28 Cal.3d 402, 619 P.2d 399, S.F. 24117: “ Does
the majority suggest that we begin the process of curtailing the First Amendment rights of judges and
justices by filing charges against our colleagues when they use less than judicious language when
speaking about each other?” If our First Amendment Associational rights can be curtailed in the
name of political correctness, then what is next?
Perhaps of even more concern is the phrase in that same paragraph of the INVITATION that
provides, “the code prohibits judges from being associated with any organization if that association
would affect the integrity or impartiality of the judiciary.” As the exemption of the BSA is being
specifically targeted by this ban, any association with that non-profit youth group would seem to be
suspect, and could result in potential action against a Judge. Presumably, a father or mother with
children in BSA, a grandfather or grandmother with grandchildren in BSA, or any other family
member in a family with young men in BSA, who are Judges, and who drive the young men to BSA
meetings, donate to help the boy’s troop, or volunteer with the troop could all be targeted for
punishment by those in the judiciary, and/or the legal community determined to destroy the BSA.
The Committee’s justification for the proposed change is summarized in two statements in its
proposal at page 4:
1.
“In the committee’s view, eliminating the exception would promote the integrity of the
judiciary.”
2.
“[T]he committee agreed that eliminating the exception would enhance public confidence in
the impartiality of the judiciary.”
However, other than these conclusions, the Committee does not cite a single survey, or a single
complaint about the impartiality of any judge, involving a judge’s relationship with BSA. It offers
no evidence of any kind that would justify the impact of the ban on the Constitutional rights of
Judges.
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Contrary to claims of the Committee, the undersigned believe that the public considers participation
in BSA to be a positive factor overall in evaluating an individual judge. Given the well documented
negative views of the general public towards government in general, the fact of government
employees donating their time and money to help young men and women (BSA and the Girl Scouts
of America) can only be seen as a good thing.
In considering the necessity of barring judges from associating with the BSA, the ruling of Judge
Ware of the United States District Court in Perry v. Schwarzenegger, No. C 09-02292 JW (June 14,
2011) should be considered. In his order denying a motion to vacate Judge Vaughn’s decision on
Proposition 8, Judge Ware ruled that the fact that Judge Vaughn was involved in a same-sex
relationship was not a basis for disqualifying him from hearing the challenge to Proposition 8.
Under a federal statute which required disqualification “in any proceeding in which his impartiality
might reasonably be questioned,” Judge Ware stated:
“The test for creation of apparent bias sufficient to require dismissal under [the statute] is an
objective one: ‘whether a reasonable person with knowledge of all the facts would conclude that the
judge’s impartiality might reasonably be questioned.’” . . . . In this context, the “reasonable person”
is not someone who is “hypersensitive or unduly suspicious,” but rather a “well-informed, thoughtful
observer” who “understand[s] all the relevant facts” and “has examined the record and law.” . . . .
This standard does not mandate recusal upon the mere “unsubstantiated suspicion of personal bias or
prejudice.” In addition, the Court recognizes that a fact is not necessarily a basis for questioning a
judge’s impartiality merely because that fact might lead a segment of the public to question the
judge’s impartiality. Reasonableness is not determined on the basis of what a particular group of
individuals may think, nor even on the basis of what a majority of individuals in a group believe to be
the case.”
See Order Denying Motion to Vacate Judgment, supra, pages 13-15 (citations omitted)
Judge Ware further noted that it is presumed that federal judges dispatch their duties with
impartiality, and that “[t]o assume otherwise is to engage in speculation about a judge’s motives and
desires on the basis of an unsubstantiated suspicion that the judge is personally biased or prejudiced.
Mere speculation of that nature does not trigger the [federal] recusal requirements . . . . Id.
In the same vein, absent any showing to the contrary, it is presumed that California judges will
properly execute their duties, regardless of their politics, their religion, the circumstances of their
personal lives, or the youth activities that they choose to support.
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Based on the foregoing, it is respectfully suggested that the proposed ban on Judges being associated
with the BSA be rejected.
209. Garrett
Pasadena, CA
D
COMMENT:
I disagree with a proposal that would prohibit judges from volunteering in the BSA. The BSA has a
long history of teaching civic responsibility, and judges can and do play and important role in that
mission. This proposal feels eerily similar to other thought-police cleanses where people with
minority opinions are purged from public or private position. No, thank you.
210. Amy Garrett
San Bernardino, CA
D
COMMENT:
I become concerned when we start limiting someone's freedom of association. I think the Boy Scouts
is a good solid organization and to think of preventing Judge's from participating or contributing to
this organization is wrong.
211. William M. Garrett, Jr.
San Bernardino, CA
D
COMMENT:
Judges have the right to associate pursuant to the first Amendment.
212. Megan Geilman
San Clemente, CA
AM
COMMENT:
I am commenting today on the proposed judicial amendment that precludes that judges must not be
involved in the Boy Scouts of American program to preside in a judicial court. The amendment states
"the committee agreed that eliminating the exception, thereby prohibiting judges from being
members of or playing a leadership role in the BSA, would enhance public confidence in the
impartiality of the judiciary."
My confidence is definitely NOT enhanced in the judicial system by excluding judges from
participation in the Boy Scouts of America. This is a private organization with high moral standards
and linked with a lot of various religious organizations. At some level, all organizations are
discriminatory based on standards of admittance. If a judge is not allowed to be part of the BSA than
what is to say the judge cannot be part of any fraternal or religious organization or of the judicial
system itself? Complete impartiality is a legal and moral impossibility so unless the judge is
somehow exempt from being human, and therefore would not necessarily have the clout to actually
legally preside over humans, there has to be some line in the sand. I realize this is a slippery slope
logical fallacy, but where do we draw the line? This amendment would seem to limit the first
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amendment rights of a judge since the BSA is an organization that promotes the worship of a God
and is inextricably linked with many major religious organizations.
Please reconsider this amendment as it limits the civil and religious freedom of a judge’s personal
and private life and certainly weakens my confidence that our system supports constitutional
freedoms.
213. Ronald Gentry
Indio, CA
D
COMMENT:
The proposal regarding affiliation with the Boy Scouts of America is ridiculous. The Boy Scouts is
millions of miles from a hate group, the policy regarding scouts leaders was not done with any
intended intolerance and those who perceive it as such reflect a flawed and extremist view among
themselves. The proposal to ban those affiliated with the BSA from serving on the bench smacks of
intolerance itself and is an extreme reaction at best.
I am not affiliated at present with the BSA in any way, but I have memories of my years as a Boy
Scout and Explorer and was never taught to be anything but respectful of others, including gays,
those of various religions, races and nationalities.
214. Hon. Richard L. Gilbert (Retired)
Sacramento, CA
A
COMMENT:
I fully support adoption of the proposed amendment.
215. Dustin Glauser
Beaumont, CA
D
216. Carl Wayne Goebel
Sacramento, CA
A
COMMENT:
I am a 65 year old gay person. I have been terrorized and threatened with harm since youth by
ignorant and hateful people. Your decision to put mentally, emotionally and physically abusive bigots
on notice in this manner is commendable and praiseworthy. Thank you so very much!
217. Hon. Leonard Goldkind
Court Commissioner
Oroville, CA
A
218. Kurt Gollhardt
Sunnyvale, CA
A
COMMENT:
Discrimination on the basis of sexual orientation is wrong, and incompatible with California law. The
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proposed change appropriately removes an exemption clearly aimed at a specific organization, BSA,
who has recently (in 2013) confirmed their policy and intent to discriminate against LGBT
individuals. I fully support the proposed change.
219. Lawrence J. Gonzalez
Los Angeles, CA
D
COMMENT:
What is it about the word ALL that we seem to find so difficult to understand in this wonderful
country of ours? Discrimination is not a value that we should be instilling in our young people some
of whom will be the leaders of our country one day. ALL means ALL.
220. David W. Goodman
Oxnard, CA
D
COMMENT:
"Eliminating the exception would not have any effect on a judge’s family members, who could still
join or continue to be members of the BSA."
221. Ms. Judith Anne Graeber
Riverside, CA
D
COMMENT:
I would like to suggest that the prohibition against judges serving in any capacity or even just belong
to the Boy Scouts of America is a misguided notion. I have served as a Scout leader for about 25
years. I have seen good men and I have seen less than stellar men serving as role models for the
youth of our nation. I have even seen several judges serve in the Assistant Scoutmaster position or
Scoutmaster position. These men have always been the very men we would hope for to stand as role
models for our children. Some words that come to mind include trustworthy, courteous, helpful,
brave, the very words the Scouts pledge to uphold every day of their lives. What a shame to take
these very upstanding men out of our program.
Because they are pledged to being trustworthy, it seems to me that we can trust them to be fair and
abide by all the laws of the land in an impartial manner. To do anything less would be to break the
code they live by as a Scout and these special men would not do that.
It will be a sad day for California when a man cannot participate in an organization he may have been
involved in since childhood. When he cannot influence the youth of this state and country. The
newest leaders coming up the ranks need men of this caliber.
Thank you for your consideration.
222. Peter Green
A
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Santa Clara, CA
223. Gregg
Laguna Niguel, CA
Position
D
Comment
COMMENT:
This proposal was brought to my attention as part of another conversation and while I usually stay
away from these types of discussions, I just couldn’t resist.
I find it most interesting that so many people in areas dealing with the “control” of others are quick to
place rules or restrictions that “force” individuals to only accept or rule the way they feel they should
rule. That only certain types of individuals can be “clean” and free from sin because they don’t
belong to this organization or that select club. And when a person if found to belong to an
organization that does those “terrible things”, the Enlighten part of this conversation decides that the
bad person needs to be banned, forever.
What happens if a particular Judge belongs to the North American Fly Fishing Association? Does the
fact that he enjoys helping with outdoor activities that involve wading through streams and catching
various forms of aquatic life cause concern? Some might see it as his torturing native trout with sharp
instruments or, heaven forbid, taking that poor creature and gutting them with a sharp knife and
roasting it over a flame and eating it, The horrors.
Does this membership and activity preclude the Judge from taking an objective look at the laws as
they pertain to fishing, lake use, pond use, or eating of fish?
Or how about a Judge that owns firearms. Enjoys going to the shooting range and shooting at targets.
Spending hours with their rifle or pistol making large amounts of noise and enjoying the camaraderie
of others trying to improve their accuracy and skills. Or even traveling into the forests and hunting
various game during hunting season.
Does this preclude him/her from sitting in judgment on any case involving a firearm? Does this make
the Judge an evil person? Does exercising their right to spend their time supporting a legal activity
somehow preclude them from being a Judge. Does this activity, that some find objectionable,
somehow preclude from them from membership to your “Club”?
When you start “selecting” which organization someone can belong to and precluding any who don’t
belong to what you feel they should, you are one step closer to be ruled by a mob, not by the law.
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Each and every Attorney took an oath:
Attorney’s Oath
I solemnly swear (or affirm) that I will support the Constitution of the United States and the
Constitution of the State of California, and that I will faithfully discharge the duties of an attorney
and counselor at law to the best of my knowledge and ability.
When you start “selecting” who can be part of the Club, you are discriminating based on YOUR
criteria, not what you swore to defend when you raised you hand and said yes.
224. Charles Greschel
Roseville, CA
D
COMMENT:
The United States is One Nation Under God and God does not condone gay lifestyles. A better
qualification to be a judge would be the requirement that they had been a Scout rather than
prohibiting them from membership.
225. Elena Gross
San Bernardino, CA
AM
COMMENT:
The committee recognizes that there may be a conflict of interest with the judiciary having
membership to a nonprofit group, but does not recognize the same conflict of interest when the
judiciary is a member of a religious organization. I propose that the proposed amendments include
that “a judge may not hold membership in a religious organization”.
C. Membership in Organizations
A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin, ethnicity,
or sexual orientation.
This canon does not apply to membership in a religious organization or an official
military organization of the United States.
As a litigant acquainted with members of the judiciary who are practicing members of a religious
organization I can categorically confirm that this membership prohibits that a judge applies the law in
an impartial manner and does not instill confidence in the integrity of the judicial profession.
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A judge who is a practicing member of a religious organization has to adhere to the religious belief of
said organization. Those “beliefs” relate to the interpretation of religion, gender, sex, sexual
orientation, race and how that interpretation is compatible with the faith practiced by the religious
organization.
There are certain members of the judiciary who are actively engaged in a religious institution as a
preacher, drawing a salary where their belief discriminates against women, children and holds one
member of the sex above all others. That belief permeates every judicial proceeding where the judge
is incapable of addressing and implementing the law as his belief prevails.
One such example is Judge Dale Wells, a practicing judge in the Riverside Superior Court, who is
also actively employed as a preacher in the Church of Christ, (see enclosed economic interest
statement). Judge Dale Wells' has publicly stated in a Riverside County Bar interview (May 2004
edition, pg 8 enclosed) that he belongs to a group that does not believe in divorce. As a judge
presiding over my case he has TWICE refused that I obtain a divorce in my case, citing reasons that
have no relevance to the law as California is a no-fault divorce state that advocates and allows a
speedy divorce pursuant to the legislature.
Judge Wells' sermons are widely available to the public and his conduct during court proceedings
categorically confirms that he preaches from the bench and that he is not impartial. An example of
his sermons can be viewed here at the following hyper
link: http://www.slideshare.net/pdcoc92255/060507-god-is-no-fool-hebrews-2-1-4-dale-wellspresentation
“Today, we come to the first of five warnings in Hebrews Hebrews 2:2-3 NLT The message God
delivered through angels has always proved true, and the people…
were punished for every violation of the law and every act of disobedience. (3) What makes us think
that we can escape if we are indifferent to this great salvation that was announced by the Lord Jesus
himself?
Judge Wells' actions quite clearly contravene canon 4 a which specifies that :A judge shall so conduct
the judge’s quasi-judicial and extrajudicial activities as to minimize the risk of conflict with judicial
obligations”
The Supreme Court has already ruled that religious paraphernalia cannot be posted in a court house
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in its ten commandment ruling (MCCREARY COUNTY V. AMERICAN CIVIL
LIBERTIESUNION OF KY. (03-1693) 545 U.S. 844 (2005), 354 F.3d 438), and has already ruled
on allowing religious practices in a Court and has specified that the separation of church and state
exists and that discrimination of one religious practice over another violates the first amendment
establishment clause which certainly includes a preacher who cannot separate his belief from his
judicial rulings, as he preaches to a group that firmly prohibits divorce.
The Riverside Superior court has firmly established itself as a faith based establishment rather than
an institution of law as a number of the judiciary including the current and past presiding judge are
members of the Mormon faith and allow their religious belief to represent the institution of law that
the court is.
The Ruben Clark Law Society, which several judges and attorneys in the Riverside Superior Court
community belong to, has a strong religious affiliation with the Mormon faith; where faith based
community service of members of the LDS church is advocated. The LDS church refers to Church
of Jesus-Christ of Latter-Day Saints.
“The Law Society strongly endorses one of the noblest traditions of the legal profession – the legal
representation of those in society who otherwise do not have equal access to protection of the law.
This tradition has special meaning for attorneys loyal to the Church of Jesus-Christ of Latter-Day
Saints whose faith leads them to give freely of their time, skills and means to the Lord’s
storehouse.[1] “The Lord’s storehouse includes the time, talents, skills, compassion, consecrated
material and financial means of faithful Church members. These resources are available to the
bishop in assisting those in need.”[2] ” http://www.jrcls.org/?folder=pro_bono&page=service_church
Events hosted by the Society advocate the influence of virtue in the court and were attended by
members of the Riverside Superior Court judiciary, who have an LDS
faith:http://www.jrcls.org/events/view_event.php?id=171
Justice Douglas P. Miller (Former Presiding Judge of the Riverside Superior court,
Assistant Presiding Justice Court of appeal 4th district division 2)
Judge Sherrill A. Ellsworth (Former Presiding Judge of the Riverside Superior Court, Active Judge
Riverside
Superior Court)
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Judge Mark A. Cope (Active Presiding Judge of the Riverside Superior Court).
Judge Kelly L. Hansen (Active family law judge Riverside Superior Court)
Judge Michael J. Rushton (Active judge Riverside Superior Court).
Judge Gordon R. Burkhardt (Active judge Riverside Superior Court).
Commissioner Bradley O. Snell (Active family law judge Riverside Superior Court)
Former Presiding Judge Ellsworth commented at an event held in 2013 that she as an LDS woman is
more qualified to preside over child molestation cases due to her religious background.
“Who better than me, a mother of six, to sort out the complex issues of high-conflict custody battles?
Who better than me, an LDS woman, to preside over child molestation cases where the victims and
the juries need a gentle touch? Who better than me to handle domestic violence cases?
http://jrclswomen.blogspot.com/2013/05/la-women-in-law-host-judge-sherrill.html
The amendments that are proposed are necessary to restore the integrity, impartiality and public
confidence in the judiciary as a culture of religious belief has been instituted which prevails above
law.
226. Elva Haag
Sacramento , CA
D
COMMENT:
This is taking away our freedom punishing for having certain beliefs. Please do not force to go
against our cherished values.
227. Bruce Haase
D
COMMENT:
I understand that there is a proposed amendment to Canon 2C that would ban judges from
membership in community organizations. I know and have know several judges, both current and
retired. The two individuals I have had the most contact with and have had the opportunity to work
very closely with are Larry Hayes and Susan Dauphine.
Both of these individuals are outstanding citizens and their passion for what they do and have done is
wonderful. Having them and other judges be active in the community is extremely important. Having
had their association and working closely with them has allowed me to see much more clearly how
they have a positive impact on both children and adults and truly build on not only how the judiciary
works, but how it functions within the community. They are very open and willing to discuss what
they can and can't do as a judge and what would be a conflict. Their own personal professionalism
lends a tremendous amount of confidence to the whole judicial process and how that process is truly
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an extension of citizens performing roles of public service throughout our government.
As a normal person, I certainly feel that there are currently enough safeguards in place to monitor and
take action if an individual judge were to not be acting appropriately. I feel that by further removing
and isolating judges from the community as the current proposed amendment would appear to do, is
not healthy or helpful. Isolating judges further would reduce our trust in the system and lead to a
greater sense that things are being controlled and manipulated behind closed doors. That is not a
feeling that we want to have.
In specific regards to Larry Hayes, I have been an active parent in the Boy Scouts Troop 127 in
Carmel Valley, while Larry has been Scoutmaster and now past Scoutmaster with the responsibilities
to supervise all the scouts on the Trail to Eagle. People may have varying opinions of the Boy Scouts
as a National Organization and the internal changes they are making in regards to their acceptance of
gay leaders and scouts, but in my involvement with Boy Scouts locally and with Larry and all of the
other adult leaders, I have found them to be extremely fair, open minded, professional and providing
leadership and direction to both the adults and scouts involved at at no time has there ever been an
issue with regards to a person's race, beliefs or orientation. The scouts learn skills that are invaluable
and develop a sense of responsibility, respect and appreciation for our nation, the flag, the
environment and how to treat all people properly. Larry has shown through his leadership that all of
these qualities are important and can help everyone grow up to be a leader in our society.
I have personally had the opportunity to work in business all over the world, and I value what I have
learned from Larry to be at and near the top of my experiences. I have seen first hand the impact that
he has both on the scouts and adults and how he interacts with others in the community and through
Boy Scouts. To take that away because of a change in your judicial procedures would be extremely
unfortunate. In a similar vein, I have seen the impact that peace officers have had in many
organizations such as Boy Scouts, Boys & Girls Clubs, local community outreach programs that help
keep youth out of trouble in different parts of the country. I also had the opportunity to teach at the
Hawaii State Prison and have 1st hand experience how being involved can turn people's attitude's
into a positive and productive direction. I can also say that having had contact with Larry, Susan and
other judges within the community and being part of organizations has helped me be to a better juror
when I have had to fulfill that role.
In summary, I feel that this proposed amendment should be rejected.
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Thank you for all of your time and efforts that you put in and the consideration that you give to all
your decisions and recommendations.
228. Mark Hague
Long Beach, CA
A
COMMENT:
Non-profits benefit from tax exemptions and should be held accountable for any discrimination,
including youth organizations such as the Boy Scouts of America, Inc. As a former Eagle Scout, I
believe the Boy Scouts and all other non-profits should not keep their tax exemptions when they
discriminate against any Californian. I urge you to please rescind the loophole that allows such nonprofits to continue to enjoy tax exemptions when they blatantly discriminate, as BSA and many nonprofits do.
229. Zack Hall
Los Angeles, CA
A
COMMENT:
It is wrong for the state of California to endorse, in any way, an organization that discriminates based
on sexual orientation.
230. David Hallett
San Diego, CA
D
COMMENT:
The exception should remain. Nonprofit youth organizations that carry a faith based model,
including the Boy Scouts, do a lot of good in the community. The service projects and good works
done by these groups benefit the community as a whole. A judge should have the discretion to be a
member or serve in such an organization.
231. Stephen Hallett
Vallejo, CA
A
COMMENT:
Those tasked with the solemn duty of safeguarding the Constitution's sacred promise of equality
under the law should not be permitted to have membership in organizations that practice
discrimination. Discrimination is the anti-thesis of the equality guaranteed by our Constitution, the
very same Constitution Judges have sworn to uphold.
The Boy Scouts of America is unashamed in its official sanction of discrimination against Gay and
Lesbian people. In the In Re Marriage cases, the California Supreme Court held that given the history
of discrimination faced by Gay and Lesbian people, Gay and Lesbian people are a suspect class. Any
law that discriminates against Gay and Lesbian people is subject to the most exacting standard of
judicial scrutiny because of the severe discrimination they have faced throughout history
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232. James Hanes
Soulsbyville, CA
Position
Comment
Given this backdrop, it is shameful that Judges tasked with enforcing this strong protection for gay
and lesbian people are allowed to belong to organizations that mandate discrimination. To protect the
integrity of our judicial system and the public confidence in the impartial administration of justice,
Judges must not be permitted to belong to organizations that practice discrimination against Gay and
Lesbian people.
D
COMMENT:
You are a bunch of idiots! Remember this is a free country and if as you people feel judges are good
people then we need then involved with our youth. You folks want to try to tell everyone what they
can do. Have your laws about discrimination but don't tell folks what organizations they can belong
to. Thought that was what free meant.
You have a lot more important things you should be doing, judges are doing a lot of really stupid
things both on and off the bench. Work on that.
Even your form is suspect, surprised you don't ask my sex, age and sexual preferences. And why do
you need my address, going to put me on a no fly list or something? Political correctness (who says
it is correct) is ruining this country.
233. Jessica Hankins
Apple Valley, CA
A
COMMENT:
By openly supporting and accepting membership in organizations that discriminate against anyone, a
judicial appointee is claiming public concession to those discriminatory policies and thereby is no
long impartial when it comes to their chosen profession and the profession they seek re-election. I
agree with the proposed changes, so that judges no longer be allowed membership in said
organizations.
234. Austin Hansen
Cave Springs, AR
D
235. Jeff Hansen
Loomis, CA
D
COMMENT:
I don't think we should pass this and reject people based on their occupational back ground. This is
not favorable.
236. Karl Harer
D
COMMENT:
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Ventura, CA
237. Cindy Harrington
Laguna Hills, CA
Position
Comment
I thought this proposal was a joke when I first heard about it. I cannot believe that serious
consideration would be given to prejudice an organization as positive and helpful and the Boy Scouts
of America because it has certain beliefs that others do not agree with. Mind you by holding those
beliefs the Scouting organization does not take or promote any action against any other groups or
individuals, they simply have a code of beliefs and what they consider proper conduct to uphold. The
Supreme court no less has deemed their rights constitutional and now some self important people
want to dictate to others what they should and should not do by attempting to deny the judiciary from
participating in the program. Unbelievable and I hope it does not pass or we will all suffer a loss of
freedom because of it.
D
COMMENT:
I think the proposed changes create an unjust situation for judges choosing to be part of the Boy
Scouts of America (an organization that has contributed great good to American society over its one
hundred-plus years), and if approved would be an infringement on the religious liberty and freedom
of association each of us is afforded by our Constitution.
Of course, ensuring fairness from judges is imperative, however, this proposal is an over-reach into
afterhours activities of the men and women who serve our judicial system. How does involvement in
the BSA preclude fairness from the bench? Will the next proposal demand judges renounce church
membership?
Peggy Noonan of The Wall Street Journal said "… The truly tolerant give each other a little space…"
Can't we do that? Can't we give each other a little space and agree to disagree in a civil manner? I
think we can and should.
238. John Harrison
Concord, CA
D
COMMENT:
The committee's reason for eliminating the nonprofit youth organization exception is that California
is the only state that has such an exception (and also prohibits membership in organizations that
discriminate on the basis of sexual orientation). So what sort of a reason is that? When did ethics
rules become just a way for those who happen to be in the majority to punish and eliminate those
who disagree with them (and are now in the minority)?
I think that a judge should be allowed to be a member of the Boy Scouts.
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239. Terrie Harrison
Yucaipa, CA
D
240. Wayne Harrison
Yucaipa, CA
D
241. Gary Hartvigsen
Yucaipa, CA
D
COMMENT:
The proposal to restrict judicial positions because of BSA affiliation is a further unjust bias against
people who have long served their communities and nations. The assumption that people involved in
BSA cannot deal fairly with all people despite sexual preference is utter nonsense.
Believing people to be hateful of another because of same sex attraction is akin to hating anyone
because they commit sin of any kind. People who believe that homosexual relations are a sin are not
wide spread homophobics. It is a reality that people can hate the sin, love the sinner and defend their
human rights equally. To propose any law that makes the assumption that being against any sin
means you cannot be fair to all is in itself a bias founded in unfairness or reality. How hypocritical
is that!
242. Jeffrey Hartmann
San Clemente, CA
D
243. Hon. Albert Harutunian III
San Diego , CA
D
COMMENT:
I respectfully submit this comment in response to the proposal to amend Canon 2C of the Code of
Judicial Ethics. I am opposed to the proposal, and believe Canon 2C should remain in its present
form. The Committee proposes to treat membership in a religious organization differently than in a
youth organization, but provides no rationale for doing so. If the Committee’s analysis about why the
change should be made were correct, it should apply with equal force to the religious exception. But
the Committee apparently realizes the firestorm of criticism it would receive if it forced judges to
choose their religion on the basis of the criteria of the Ethics Committee. For many judges,
participation in youth organizations is of greater importance than their religious affiliation. And like
many judges whose religion is viewed as discriminating on the basis of sex (e.g., no women priests)
or sexual orientation, judges who are leaders in youth organizations often disagree with the formal
tenants of the organization, and advocate for change from within. That avenue for change would end
if the Committee’s proposal were adopted.
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Commentator
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In the 18 years since Canon 2C was revised to include the youth organization exception, the
Committee has not identified a single instance of a judge’s membership in such an organization
impacting the disposition of a case. Nor have they identified what the Supreme Court “missed” when
they rejected a similar proposal to eliminate the exception in 2003. It makes no sense to force the
many judges who have relied on the ethical rules that permit participation in the Boy Scouts to
suddenly resign, leaving their own sons, dens, troops and packs without leadership, supervision and
support. It is also unrealistic to treat judges who participate in Boy Scouts as if they are publicly
walking around espousing discriminatory statements. My experience as a scout leader is that there is
no discussion or consideration of sexual orientation of the boys or leaders. I don’t know or care what
the sexual orientation is of anyone in scouting. The written policy of the Boy Scouts has no real
impact on the workings of the organization on the local level. And if there were an egregious incident
of discrimination by an individual judge involved in a youth organization, it should be addressed on a
case-by-case basis, not by wholesale prohibition against all participation in scouting.
Thank you for considering this input.
244. Gary Hartvigsen
Yucaipa, CA
D
COMMENT:
The proposal to restrict judicial positions because of BSA affiliation is a further unjust bias against
people who have long served their communities and nations. The assumption that people involved in
BSA cannot deal fairly with all people despite sexual preference is utter nonsense.
Believing people to be be hateful of another because of same sex attraction is akin to hating anyone
because they commit sin of any kind. People who believe that homosexual relations are a sin are not
wide spread homophobics. It is a reality that people can hate the sin, love the sinner and defend their
human rights equally. To propose any law that makes the assumption that being against any sin
means you cannot be fair to all is in itself a bias founded in unfairness or reality. How hypocritical
is that!
245. Laura Haskell
Chino Hillls, CA
D
COMMENT:
As professionals, judges are trained to separate their personal opinions and biases from their official
capacities judging the merits of legal cases. Any professional would do the same. It is frankly
insulting to assume that someone who has an affiliation with Boy Scouts of America is not able to be
objective in doing their duty as a judge.
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246. Clark Hatch
Brea, CA
Position
Comment
D
COMMENT:
If Judges are to be prohibited from participating in the BSA, then prohibiting judges from being
married to a same sex person, would also enhance public confidence in the impartiality of the
judiciary.
247. Jeremiah Hawkins
Beaumont, CA
D
COMMENT:
The Boys Scouts of America is a worthy and wholesome organization that has contributed to the
good character of this nation for many years. I view such a proposal as simple foolishness.
248. Ryan Haws
Newbury Park, CA
D
249. Hon. Larry E. Hayes
Monterey, CA
D
COMMENT:
I respectfully urge you to recommend leaving the current Canons intact regarding membership in the
Boy Scouts of America, and to reject adoption of this proposed amendment for the following reasons:
1. The Canons as they currently stand on this issue effectively preserve public confidence in the
impartiality of the judiciary as it relates to this issue.
2. If the proposed amendment is adopted, it will have a reverse effect on public confidence in
the Judiciary rather than enhancing it. An important obligation of a judge is to take an active
part in the life of the community and to participate in community outreach activities. I can
think of no greater service than to reach out to the youth in our communities to help them
build strong moral character, which includes instilling an attitude of tolerance toward other
people’s beliefs and lifestyles without limitation. “Complete separation of judges from
extrajudicial activities is neither possible nor wise; a judge should not become isolated from
the community in which the judge lives.” Adv. Com. Commentary to Cal. Code Jud. Ethics,
canon 4A. It would be unwise to ban judges from participating in scouting where there is no
actual prejudice.
a. The importance of being involved in Scouting can best be reinforced by the attached
resolution I received recently from the Carmel Unified School District Board of
Trustees following my four years as Scoutmaster for Carmel Valley Troop 127. It is
the first and only such resolution for a private citizen by the Trustees, who also know
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me as a Superior Court Judge. In part, it states:
• Whereas, Larry E. Hayes has served as Scoutmaster and previously
Cubmaster to over 200 students of Carmel Unified School District, leading
them by his own dedication and example of being Trustworthy, Loyal,
Helpful, Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave,
Clean and Reverent; and
• Whereas, sixteen boys have achieved scouting’s highest distinction – the
Eagle Scout Award – under Scoutmaster Hayes’ direct influence; and
• Whereas, the Carmel Unified School District seeks to promote lifelong
learners who are prepared for their roles as citizens in our ever changing
global community; and
• Whereas, Scoutmaster Larry E. Hayes has taught the Citizenship in the
Community, Citizenship in the Nation and Citizenship in the World Merit
Badges for more than six years to over 50 scouts; and
• Whereas, Scoutmaster Larry Hayes is a true model of good citizenship and
has promoted community service ideals among many of our District’s
students.
• Now, Therefore, Be it Resolved That: The Board of Trustees of the
Carmel Unified School District does hereby convey its deepest gratitude to
Scoutmaster Larry E. Hayes for distinguished service to the students of the
Carmel Unified School District and to our community in general.
3. As a registered merit badge counselor I have instructed scouts on the three Citizenship merit
badges mentioned in the above resolution, as well as Law and Family Life. The titles speak
for themselves as they relate to what I am trying to instill in the hundreds of youth I have
counseled. But if you have any questions, please refer to the link at the end of this sentence
to gain a better understanding of what the scouts learn in these merit badges. BSA Merit
Badges
a. To be a merit badge counselor or adult leader one must be registered with the BSA—
a process to ensure those volunteering have no criminal background posing a danger
to youth. Thus, your proposed ban will prevent me from being a merit badge
counselor to the youth in the community even if I otherwise terminate my leadership
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roles in scouting.
4. I frequently have scouts and adult leaders from the county attend court sessions to educate
them on the court system, their rights and duties as a citizen, the importance of serving as
jurors, and being a person of good character. Will I be banned from doing this if your
proposal is adopted, simply because the group coming into the court is a scouting unit?
Would that give the perception I am unfair to others because of sexual orientation just
because I am allowing scouts to come into courtroom and then talk to them about these civic
matters? Such arguments could be made from the implementation and rationale for the
proposal.
5. In the 14 years I have been active in scouts, first as a leader of Cub Scouts for seven years
and as a Scoutmaster or assistant scoutmaster for the last seven, neither the local Pack or
Troop, in which I have been a leader, has EVER discriminated against a youth or adult as a
result of sexual orientation or any protected class for that matter. In fact, even before the
BSA changed its policy, our troop had an openly gay scout in its membership.
6. The Proposal, if adopted, will tend to cause further isolation of judges from involvement in
community activities and diminish the diversity of the judiciary. This will seriously
undermine the public understanding and confidence in the integrity of the court system.
a. Finally, in reality, I consider myself to be a leader in a local boy scout troop: Carmel
Valley Troop 127. The organizational structure of scouting involves the BSA
national organization, under which there are 300 local Councils. It is the National
office that develops policies and standards for the BSA. Local troops are formed by
organizations that are completely separate from the BSA and local Councils, such as
churches, schools, and service clubs who may receive a charter from the BSA to
form a local scouting unit, such as a troop or pack. ”The chartered organization is
the "franchisee" and as such is the "owner-operator" of the Scouting program.” (See
http://www.scouting.org/scoutsource/Media/Relationships/TrainingtheCOR/02.aspx)
Troop 127’s chartering organization is Carmel Valley Scouting Inc. To become a
leader in the troop all adults must register with the BSA for the purpose of ensuring
the safety of the youth by enabling the BSA to conduct background checks of adults
working as a volunteer with youth. I am not involved directly at the national
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organization or even the local Council level. I have nothing to do with setting BSA
policies on adult membership I do not support the BSA on their position, and I did
not and do not promote that policy. As I said, the troop has not implemented that
policy in its practices either. My focus is on serving the youth and our local
community in my capacity as a leader in Carmel Valley Troop 127 to help make our
world a better place to live.
“The Boy Scouts of America is one of the nation's largest and most prominent values-based youth
development organizations. The BSA provides a program for young people that builds character,
trains them in the responsibilities of participating citizenship, and develops personal fitness.
For over a century, the BSA has helped build the future leaders of this country by combining
educational activities and lifelong values with fun. The Boy Scouts of America believes — and,
through over a century of experience, knows — that helping youth is a key to building a more
conscientious, responsible, and productive society.” (BSA’s stated purpose)
Judges I believe, are in one of the best positions to build character in and train our youth in the
responsibilities of good citizenship with the goal of building a more conscientious, responsible and
productive society. This laudable goal should not be overshadowed by the single flaw in the BSA that
caused the Committee to make its proposal. Any concerns of bias because of the BSA’s position on
adult members can be better handled on a case-by-case basis through the existing canons rather than
an absolute ban on all judges being members. If you are still of the mind to recommend adoption of
the proposal, might I encourage you to consider limiting it somehow so that it prohibits a judge from
holding a position in the BSA or Local Council, at which level the policies dealing with adult
membership are set or enforced, rather than being a member of a scouting unit where the role of a
judge involved at that local level is directed, instead, solely at the goal of helping youth and serving
our community.
I would be happy to answer any further questions you may have about my position on the instant
proposal.
250. Lyman Hays
Westlake Village, CA
D
COMMENT:
SP14-02 is an affront to common sense! We the people have the right to vote for our judges. If we
do not like their politics, then we can express our dissatisfaction at the polls. I deeply resent the
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implication that I must rely upon the opinions of some non-elected committee members to tell me
what is ethical.
I entered scouting as a pre-teen and continued until I was old enough to vote. I have great respect for
those who give of their time to serve as leaders. To castigate someone for being a Boy Scout of
America leader is shameful. Do you really think not promoting a gay lifestyle is “… invidious
discrimination of the basis of … sex …”? Just because someone else might think so, must we?
The entire SP14-02 is ill conceived and should be tossed into the waste bin. If this committee needs
some work to justify its existence, then develop the methods and procedures to insure the voting
public is well informed but do not attempt to define for us what is or is not ethical. You are not
qualified for that task.
251. Patricia Healy
Fairfax, VA
D
COMMENT:
I don't know where the members of the ethics advisory committee where when Con Law was taught
in law school, but the proposed prohibition is patently unconstitutional.
252. Richard Heaton
Irvine, CA
D
COMMENT:
An inappropriate infringement on a person's right to exercise his religious rights and freedom of
association.
253. Joseph Hertlein
Carmel Valley, CA
D
COMMENT:
I am writing to voice my strong opposition to the proposed amendment to Canon 2 C
SP14-02 Non Profit Youth Organizations which would prohibit judges from participating in the Boy
Scouts of America. I have three reasons opposing this rule change, it limits freedom of speech, it’s
discriminatory and is unconstitutional.
I know a number of judges who are outstanding contributors to the BSA program. To deny them the
opportunity of participating would be to deny their freedom of speech. These judges epitomize to the
highest level the scout oath “on my honor I will do my best” and the scout law about being
“trustworthy…..” Who better to reach Merit Badges like Citizenship in the community, Citizenship
in the Nation, that demonstrate the importance of upholding and living by the laws and constitution
of our country? These judges invite scouts into their courtroom to witness firsthand the importance of
fairness and that by living according to laws we have a civilized society. I know judges that are
uniquely qualified to teach the Family Life Merit Badge and the importance of family life because of
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their tenure in family court where they see firsthand the consequences of dysfunctional families.
These judges also demonstrate to scouts through their own actions good parenting skills which serve
as a role model to all scouts and families.
If judges cannot participate in the BSA because some people may think they are biased because the
BSA has a policy discouraging gay leaders, then by logical conclusion who can be a judge? By
excluding judges form the BSA because of this policy, then you are saying everyone has to have the
same beliefs. But that can never happen. No one would be able to be a judge. A person of the
Protestant faith would not want a Catholic, or Jewish or Muslim judge, because they have different
beliefs. Democrats would only want a democrat judge because they donʼt trust someone with
republican party leanings. Or brunettes would not trust a blond judge, how silly. Our judges must be
chosen and elected because they represent unquestionable fairness and a willingness to follow the
law regardless of their personal beliefs. Judges should not impose their personal beliefs and standards
upon everyone else: just as a citizen, I cannot expect to have a judge who perfectly mirrors all my
beliefs. The litmus test should be are they fair and do they follow the law, not that they hold all the
same beliefs that I do.
Freedom of speech is protected by the First amendment of the Constitution. Inherently that should
allow people to be a part of organizations that promote the common good and the welfare of all.
Organizations have rules and policies and individuals should be free to either abide by or refrain from
honoring all of them. Just because an organization has a policy it does not mean all people accept it.
People may vote democratic or republican, but that does not mean they approve of every policy of
that party. The BSA National may have a policy discouraging gay leaders in order to pacify the
beliefs of some of its members, but that does not mean that other members are unable to take a
different view and stance on this matter. I know BSA troops that even prior to the national policy
regarding allowing gay scouts was eliminated, already overlooked that policy to freely embrace all
scouts. They chose not to make sexual orientation an issue, they chose to make leadership, ethical
behavior, lifelong skills about first aid, camping and hiking as the important criteria to emphasize in
scouting.
It seems neither fair nor constitutional to discriminate against certain people (judges) from
participating in any organization, especially one like the BSA which does so much good. I am aware
of no other organization in our country that so comprehensively promotes, citizenship, leadership,
self discipline, a commitment to achieving goals, hard work, community service, diversity, nature
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and backpacking skills, appreciating and preserving the environment, being prepared, and doing a
good turn daily, than the BSA. And its programs are for boys age 6 to 21 (Cub Scout, Boy Scout,
Venturing & Explorer programs) and girls ages 14 to 21 (through Venturing and Explorer programs).
If this amendment to Canon 2C is enacted, then you will discriminate against a group
of exemplary individuals who can teach and demonstrate to the youth of our nation the very best
examples of a free society. Rather than promote freedom you would discourage it and that would be
a huge disservice to the cause of liberty. Please do not make amendments to Canon 2C.
254. Cameron Hess
D
COMMENT:
Supposedly for the sake of avoiding the appearance of bias, the California Supreme Court is on the
verge of forbidding all judges in California from any association with the Boy Scouts of America
because the BSA does not permit openly homosexual adult leaders to work with the boys. This would
prevent judges who are fathers or religious leaders of scouts from serving in any position that
requires registering as an adult scout leader, whether it be working with the boys or in advisory or
administration positions.
This is yet another example of the hypocritical intolerance displayed by those who claim they are the
victims of intolerance. Yet this same California Supreme Court, and even the United States Supreme
Court, saw no bias in allowing homosexual Chief U.S. District Judge Vaughn Walker to overturn the
voter approved 2008 California Protection of Marriage Act (Prop 8).
Within my brief lifetime, the Boy Scouts have gone from being the epitome of our society's model
for strong moral character, leadership, and preparation for lifelong citizenship to an outlaw
organization. And all because the BSA continues to promote living by the Scout Oath and Law while
the morays of popular culture continue to change.
The proposed amendment states in part, "Canon 2C prohibits a judge from holding membership in an
organization that practices invidious discrimination...".
The definitions of "invidious" are:
1- tending to cause discontent, animosity, or envy
2- envious
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3a : of an unpleasant or objectionable nature : obnoxious
b : of a kind to cause harm or resentment
Approval of this amendment would prevent judges from participating in any organization which
differentiates by gender, or age. This would not only prevent judges from participating in their sons
Boy Scout campouts, but also such organization as Girl Scouts, AARP, Girl Scouts of America. noncoed sports leagues, Indian Princess, and any organization that prevents access to their restrooms by
those of the opposite gender, etc.
PLEASE disapprove this amendment.
255. Christine Hicks
Roseville, CA
D
COMMENT:
Leave the law as it is. The BSA are a youth oriented organization that strives for high morals for their
members. I disagree that homosexuality should be legal....no matter how many relativity theories are
voiced/promoted that homosexuality is "OK". Therefore, I disagree with removing the current
language from the policy and allowing homosexuality to creep into decisions made by judges. The
current law provides guidelines for a judge who may belong to a youth organization that will not
allow gays into their ranks. That is, they have a chance to dismiss themselves from the case. The
policy is currently sufficient and working. Do not change it.
256. David Hiersekorn
Placentia CA
D
COMMENT:
I am not a member of the Boy Scouts and never have been. I have three boys of scouting age, but
have not enrolled any of them in the Boy Scouts. I have no personal interest at stake here.
However, I would strongly oppose this restriction. The Boy Scouts organization does not exist for the
purpose of promoting a particular viewpoint about homosexuality. That viewpoint is not central to
their purpose or the reasons that someone might choose to become involved in scouting.
It's possible, even likely, that a judge would be involved in scouting for reasons that have nothing to
do with his stance on homosexuality. Indeed, there are undoubtedly a variety of viewpoints about
homosexuality within the membership of the Boy Scouts. As a result, I don't believe there is any
automatic conclusion we could draw about a judge's beliefs, just from the mere fact that he is
involved in scouting.
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Lastly, the Boy Scouts actually permit homosexual scouts, just not scout masters. Consider the odd
irony that this rule would force on a judge whose homosexual son was a Boy Scout. Gay scouts have
parents, and some of those parents are undoubtedly judges. This rule would force that parent to
withdraw from involvement in his or her son's scouting activities.
Even if that likelihood is statistically rare, it still demonstrates that this issue is far more complicated
than those pushing for a rule chance want to believe.
257. Hon. Terry L. Higham
Los Angeles, CA
D
COMMENT:
I strongly disagree with the proposed Canon. As a practitioner, volunteer with various community
organizations and former Temporary Judge, I am ashamed and shocked that the Committee would
actually give serious consideration to such a proposal.
While the proposal facially attempts to serve the purpose of bias elimination; it miserably fails to
meet its goal. Rather, the proposed Canon creates and fosters its own substantial climate of
intolerance, fear, bias and discrimination against bench officers - including Temporary Judges, who
are members and/or affiliated with the Boy Scouts of America.
In effect the proposed Canon would work a denial of bench officers of their constitutionally protected
freedoms of association, expression and thought. Legislation such as this proposed Canon, will lead
to constitutionally infirm "test oaths."
That sort of thinking espoused in the proposed Canon will, as recently predicted by U.S. Associate
Justice Antonin Scalia, lead to the creation of wholesale constitutional nightmares such as those that
found expression in Korematsu v. U.S., the disenfranchisement and loss of civil rights of U.S.
citizens under the Edmunds/Tucker Act of 1884, the ethnic cleansing that was given expression by
the Missouri Executive Order of 1838 which forcibly expelled Mormons from Missouri under the
penalty of "extermination" and the Cherokee land cases heard before the U.S. Supreme Court that led
to the "trail of tears."
By contrast there is no credible or even persuasive evidence that any civil litigant has been chilled by
a bench officers' association with the Boy Scouts of America. Even more, were that the case, Code of
Civil Procedure sec. 170.6 serves as an existing and effective remedy where litigants may feel that a
bench officer is prejudiced against them or their interests.
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258. Eric Hightower
Los Osos, CA
Position
A
Comment
COMMENT:
Allowing judges to serve within a social institution like the Boy Scouts of America, which openly
discriminates against people based on sexuality serves to enable and reinforce Institutional
Discrimination as a whole. Allowing our judges, vital members of the judicial system, to be a part of
a group that discriminates openly, is a reflection of the integrity of our judicial system.
It says that the guidelines of our judicial system are vague and open to interpretation. It also puts
pressure on the Boy Scouts of America to change their practices.
An acquaintance of mine lost his Eagle Scout Status after he had received it because he was openly
gay. Then they said that you can be "gay in the scouts, but cannot be a leader." This has the potential
to be especially damning to the self esteem of any homosexual member of the Scouts because it tells
them, "you cannot be a leader" or it tells them, "you can only be a leader if you hide a part of who
you are." This sort of social structure is one that I cannot agree.
It serves to perpetuate misrepresentation, sexual discrimination, and discrimination and prejudices as
a whole within our social institutions.
Further, I feel that this applies to status with any social institution. A judge will retain these sorts of
opinions when trying people.
259. Wesley Hilton
Lafayette, CA
D
COMMENT:
Prohibiting membership in the Boy Scouts of America does violence to the ideal of viewpoint
diversity among bench officers. Many such officers have deep and reasonable convictions
concerning the morality of homosexual conduct. But these same officers retain an equally profound
commitment to equal justice for all, regardless of individual sexual orientation. To suggest that these
judicial officers cannot act impartially is intolerant and narrow-minded.
260. Elaina Hisgen
Henderson NV,
A
COMMENT:
Discrimination is discrimination, objectively, across the board, no exceptions. Just as Defendant is
wrapped in a cloak of innocence until proved otherwise, the Court must be wrapped in a cloak of
neutrality as to all matters brought before the Bench. Exceptions permitting discrimination in
stipulated circumstances are holes in that cloak. This is intolerable.
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261. Ronald Hodges
Palo Alto, CA
Position
D
Comment
COMMENT:
I am writing to oppose the proposed change in the Code of Judicial Ethics that would prohibit judges
from participation in the Boy Scouts.
Sexual orientation should not have the same claim to Civil Rights as race or ethnicity, because,
unlike the latter characteristics, it involves a behavior with moral content and implications for family
structure. These are matters on which informed people of goodwill may disagree. The issue should
be debated in the court of public opinion and resolved by the democratic process. However, in
several recent rulings judges have moved to impose a moral paradigm contrary to the convictions of
millions of American citizens. In the case of California's Proposition 8, the right of a California
citizen to have even a single vote on the structure of the family, the basic unit of society, was
eliminated by the opinions of a few judges and state officials.
Can the State affirm homosexual relationships without at the same time condemning those who
believe in sexual morality as traditionally understood? Unfortunately, measures like the proposed
rule change suggest the answer is "no." It appears that institutions and individuals (in this case
judges) that have traditional sexual mores in their core values will come under increasing legal
attack. I am particularly concerned for Christian liberal arts colleges, such as the one I attended, and
other groups, such as church related charities, adoption agencies, as well as the Boy Scouts, who ask
that their employees believe and act in conformity to those values.
Please do not continue the disturbing trend of courts dictating values in this area.
262. G. Thomas Hoemig
San Francisco, CA
A
263. Gordon Hoffman
Whittier, CA
D
COMMENT:
The proposed change in nothing more than an attack on the freedom of association. Has there been
even one case in which a judge's membership in BSA has brought about an unjust or wrong decision
in any case throughout the state of California? I think not, since we would surely have heard all
about in the press. If we are not allowed to associate as we please, then this proposal is nothing more
than an attack on our liberty. I strongly urge the proposed change to the Code of Judicial Ethics be
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rejected.
264. Barbara Hogeland
Beaumont, CA
D
COMMENT:
A free people must not allow special interest groups to dictate the conscience of our judges. Nor
should the judges be discriminated against for their affiliation with worthwhile institutions.
265. Jonathan Holbrook
Auberry, CA
D
COMMENT:
The proposed amendment to canon 2C of the Code of Judicial Ethics SP14-02 eliminating the
exception for judges to hold membership in nonprofit youth organizations such as the Boy Scouts of
America (BSA) is not justified. The two main arguments; eliminating the exception would (1)
promote the integrity of the judiciary and (2) enhance public confidence in the impartiality of the
judiciary are preposterous. As a member of the public, in my opinion this could not be further from
the truth. BSA has always stood for the highest ideals of citizenship and integrity, promoting
outstanding qualities in the young men who participate. There are many things the judiciary could do
to promote its integrity and public confidence but this elimination is not one of them.
Now with the declining morals of society a group that has done tremendous good and has not
succumbed to societal degradation is under attack and in the name of tolerance has been determined
to be intolerant. I see no reason for the proposed amendment that would rob the BSA of the
participation of judges in California. As with the public in general, if a member of the judiciary feels
the stated goals of the BSA are in conflict with their personal beliefs, then they are free not to be a
member.
266. Matthew Holbrook
Palmdale, CA
A
COMMENT:
In this day and age we need to show not just the young people but to everyone that discrimination is
wrong and that we need to end so that anyone that are different should not feel bad or guilty and or
depressed and maybe hurt themselves to let them know that it is ok and that there is nothing wrong
with you.
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267. David Holmes
San Jacinto, CA
D
COMMENT:
Barring a judge from helping in the BSA is close minded and ignorant. The BSA does so much good
and judges can have a great deal of influence on these young men. Please stop your attack on the
BSA.
268. Stephen Holmes
Beaumont, CA
D
COMMENT:
•
I would find it a tragedy to our great nation not to have the availability of our Judges affiliate,
interact and influence our youth in the Boy Scouts of America for good. I personally have enjoyed
listening to a judge during a visit to San Bernardino Courts interact and help the young men of the
rising generation in Boy Scouts see and appreciate how important to our nation these men and
women are to everyone. I believe firsthand experience with these Judges can never be replaced by
simply reading how and who operates our laws and government.
•
To believe, suspect and accuse a general group of judges that belong or affiliate with Boy
Scouts of America to have and exhibit their personal bias from the bench should never be considered
or entertained. It could therefore be said of any Judge or all of them, their personal way of life is
innately bias pertaining to everything they rule on, from the bench. All decisions should be made at
the individual level and never directed to group freedom. If there is individual misconduct, proof
should be provided and then the individual should be dwelt with accordingly to the law and not the
entire group. Reasonable limitations can be expected however, this should not be one of them at any
reach of the imagination.
•
Please do not consider terminating the body because of any one wart, could be said of all
organizations and beliefs. It would be offensive to common sense to narrow the views and
understanding of our Judges to only one kind of thinking. Where is the representation of the people
through there Judges, if this be the case? People do not need to lose any further faith in our judiciary
system by narrowing their Judges responsibilities and convictions to guiding the Boy Scouts of
America into a bright and peaceful future. We need our Judges to help participate in guiding our
youth in Boy Scouts of America so they don’t have to pass Judgment on them after the problems
occur in society. "An ounce of prevention is worth a pound of cure".
269. Richard K. Hooker
San Bernardino, CA
D
270. Bill Horn
A
COMMENT:
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Position
Comment
California stands alone in the nation on so many activities. This should not be one of them. It's
embarrassing.
271. Michael Horton
Escondido, CA
D
COMMENT:
1. SP14-02 violates the freedom of assembly; 2. SP14-02 wrongly assumes that suspending
prejudices is impossible if a judge's private associations in any way affect or reflect those prejudices.
Judges have to exercise discretion all the time in order to ensure that they are not allowing their
personal biases to infringe on the course of justice.
3. SP14-02 establishes a precedent for future suppression of liberties guaranteed in the U. S.
Constitution.
272. Carolyn Howard-Johnson
Glendale, CA
A
COMMENT:
We should not be encouraging (tacitly or actively) the idea that bigotry is OK on a case by case basis
or any other way. Excusing scouts is especially egregious because of the message it sends to our
youth whose habits and analytical skills in the formative state. These kids will be our leaders one day.
We should prepare them to do better than many of today's leaders. Please!
273. Brad Howe
Helmet, CA
D
274. Margo Howes
Roseville, CA
D
COMMENT:
I feel the proposal to prohibit judges from serving as adult leaders in the Boy Scouts of America is ill
advised. The mission of the Boy Scouts of America is to help build leadership skills in boys, promote
integrity and to instill high moral values. One method the Scouts use to achieve these goals is to
identify predators wishing to work in the organization who would compromise these values by
subjecting young men to degrading or deviant practices. A large percentage of pedophiles are gay.
However, that is not a blanket statement implicating that all gays are pedophiles because that simply
is not the case. Interestingly, as the Scout move to protect the boys from unwanted behaviors, they
find themselves caught in a popular "catch 22". That is, the Scouts are sued by the parents of boys
exposed to the advances of aggressive pedophiles while also trying to fend off increasingly strident
attacks by homosexual groups screaming about "equal rights" and "discrimination." Since it is
difficult to determine if a gay person is a pedophile, one obvious way to protect the boys is to exclude
gays from adult leadership positions in the BSA. Try as we might, you cannot legislate morality
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275. Hon. Seth R. Hoyt Jr.
Stockton, CA
Position
Comment
regardless of how we spin it. Instead of caving in to the demands of a small minority advocating
different lifestyles, perhaps we should revisit the wisdom of the ages by remind ourselves "by their
fruits ye shall know them." What have the Scouts contributed to society? Namely, they have built
young men who are true, chaste, benevolent, honest, trustworthy, morally straight and serve their
country to the best of their abilities. Denying the opportunity of judges to serve with their sons in the
world's premier boys organization - the Boy Scouts of America - is simply the wrong path to trod.
D
COMMENT:
I submit these comments in respectful opposition to the proposed amendments to Canon 2C of the
Code of Judicial Ethics.
I became a Cub Scout in 1978 and earned the Arrow of Light award in 1981. That same year, I joined
the Boy Scouts, earning my Eagle Scout rank in 1987. My father and grandfather both served as
Scoutmasters. My oldest three sons are Eagle Scouts and in 2010, we attended the National Boy
Scout Jamboree at Fort A.P. Hill to celebrate the 100 year anniversary of Boy Scouts in the United
States. I served as a Scoutmaster for seven years from 2003 to 2010. I have also served as a merit
badge counselor for the Law, Citizenship in the Community, Citizenship in the Nation, and
Citizenship in the World, Scholarship, and Crime Prevention merit badges for the past 15 years. As a
Scoutmaster, I had between 25 and 30 Boy Scouts that I worked with. As a merit badge counselor
and Scoutmaster, I have worked with over one hundred young men to assist them in learning about
the Constitution, our country’s history, the rule of law, and their civic duties.
Boy Scouts provides opportunities to young people to camp and do activities in the outdoors, provide
community service, and learn valuable leadership skills that will help them become productive
citizens and leaders in their communities. During my JNE interview in 2007, I was asked to recite the
Scout Oath and Law. The Scout Oath states, “On my honor I will do my best, to do my duty to God
and my country and to obey the Scout law; To help other people at all times; To keep myself
physically strong, mentally awake, and morally straight.” The Scout Law states, “A Scout is
Trustworthy, Loyal, Helpful, Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave, Clean,
and Reverent.” I am proud of my Scouting heritage and proud to live my life by these principles.
In recent years, the Boy Scouts of America was involved in litigation regarding its exclusion of
atheist and gay or lesbian Scout leaders. In Boy Scouts of America et.al. v. Dale, the United States
Supreme Court ruled that the Boy Scouts did not discriminate by not allowing Mr. Dale to be a Scout
leader due to his sexual orientation. I was not involved in that litigation and have never taken a public
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position with respect to that litigation. Any position taken by the Boy Scouts of America organization
has not affected my fairness and impartiality as a superior court judge. As a judge, I interpret the law
without bias or prejudice for or against those who appear before me. Certainly, if I need to disclose
my membership in the Boy Scouts on a particular case, I will do so. Also, if I need to recuse myself
on a particular case, I will do so. The Governor saw fit to appoint me to the position of superior court
judge and the voters San Joaquin County kept me in office. I am asking you to place that same level
of trust in me and allow me to continue to serve in my community as a Boy Scout leader.
I am a member of the Church of Jesus Christ of Latter-Day Saints. Our church has a lay, unpaid
ministry with members serving in various church callings or assignments. I currently serve as the
First Counselor in my congregation’s Bishopric and part of my religious calling responsibilities is to
oversee our congregation’s Scout program. Boy Scouts is the activity arm for our Priesthood age
young men who are 12 to 18 years old.
The LDS Scouting Handbook (Revised January of 2014) states the following:
Purpose of Scouting in the Aaronic Priesthood and Primary
Scouting can help young men and boys enhance close relationships with their families and the
Church while developing strong and desirable traits of character, citizenship, and physical and mental
fitness. Under priesthood leadership, Scouting can complement the efforts of Aaronic Priesthood
quorums and Primary classes in building testimonies in young men and boys. Scouting under Church
sponsorship should become an extension of the home, Primary classes, and Aaronic Priesthood
quorums. Scouting functions as part of the Church’s activity program for boys and young men.
Bishop’s Counselors
The bishop’s counselors help the bishop by overseeing the Scouting programs for eight-, nine-, ten-,
and eleven-year-old boys and Aaronic Priesthood quorums.
The bishop assigns a counselor to serve as the ward’s representative to the local Scouting district and
council. This counselor registers as the chartered organization representative (COR) and works with
other leaders to:
1. Charter all Scouting units in the ward annually.
2. Register boys ages 8 through 11, young men ages 12 through 15, and their adult leaders. Young
men ages 16 and 17 and their leaders should be registered when the ward sponsors a Venturing Crew
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or when rank advancements are being pursued.
3. See that Tour Plans are completed; signed by the bishop, the COR, or the committee chair; and
submitted.
4. Attend the district committee meetings and the annual council business meeting.
5. Attend Scout training as necessary.
6. Encourage all adults involved in Scouting to become properly trained soon after their call.
7. Help organize a functioning Scouting committee.
8. Conduct the annual Friends of Scouting campaign (I have delegated this responsibility as it
involves fundraising).
9. Help provide recognition for boys, young men, and their leaders.
I am the member of the bishopric that has been assigned the above duties as part of my religious
calling.
I am opposing any amendment to Canon 2C of the Code of Judicial Ethics because it will specifically
infringe upon my freedom of religion which is protected by the Constitution which I took an oath to
uphold. Thank you for considering my recommendation. If I can provide any further information,
please do not hesitate to contact me.
276. Derrick Hughes
Irvine, CA
D
COMMENT:
Strongly disagree. Fundamental interference with religious liberty for those of us whose religious
obligations include participation in BSA.
277. Hon. Jim Humes
San Francisco, CA
A
COMMENT:
l am a justice on the Court of Appeal, an openly gay man, and a former Boy Scout. I write in support
of repealing the exception to Canon 2C of the Code of Judicial Ethics that allows judges to belong to
private youth groups, such as the Boy Scouts, that practice invidious discrimination. The exception
should be abandoned because it incites distrust in judicial impartiality, demeans gay and lesbian
judges, and is offensive and harmful.
First, the exception should be repealed to prevent further weakening of the public's confidence in the
impartiality of the judiciary. The Boy Scouts’ insistence on excluding openly gay men and lesbians
from leadership positions panders to discredited stereotypes, encourages dishonesty, and sadly
contradicts the Scouts' history and stated goals of teaching children citizenship, respect, and honesty.
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By allowing judges to be members of the Boy Scouts, the exception perpetuates the public’s
impression that the scales of justice are tipped against gays and lesbians.
Second, the exception should be repealed because its acceptance of the Boy Scouts'
policy demeans and undermines gay and lesbian judges. Allowing judges to be associated with a
group that bars gays and lesbians from holding leadership positions sends the distinct message that
the judiciary considers gay and lesbian judges to be less deserving of respect and equality than other
judges. The purpose of the Code of Judicial Ethics is to promote public confidence in all judges, not
to diminish the public's respect for some.
Finally, as with other forms of discrimination and bigotry, the Boy Scouts' policy is offensive and
harmful. By sanctioning this policy, the exception perpetuates the wrong, and it should be repealed
without delay.
278. Bart Humphries
Lake Arrowhead, CA
D
COMMENT:
The Boy Scouts of America is a great organization. It inculcates morale values in its members. It
may bar membership to homosexual adults, which is a decision that National made 55% of all Boy
Scouts are sponsored by the Methodists, the Church of Jesus Christ of Latter-day Saints, and the
Catholics, none of whom support homosexuality. For some of those churches, notably the LDS
church, the Boy Scouts of America are the official activity for their young men's program and
adopting this change would abridge a judge's freedom of religious expression. What's next, barring a
person from attending one of those churches by removing the religious exemption clause?
279. Kim Humphries
Yucaipa, CA
D
COMMENT:
The committee seems concerned that California is the only state with this nonprofit youth
organization exception. Put another way, the committee seems uncomfortable being a "lone wolf", or
at least being in a distinct minority. One suspects though, that some of the same members of the
committee, and broader judiciary, had no reservation about being a lone wolf, or at least part of a
distinct minority, when the court overturned Prop 8, at a time when few states had legalized same sex
marriage. So the idea that we're the only state with this exception seems to represent a convenient
rationale, but is also inconsistent.
At a more gut level, how many fine members of the judiciary in the history of this state have also
been affiliated with the Boy Scouts? Did their BSA affiliation hamper them in any way from being
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280. Scot Hunter
Camarillo, CA
Position
Comment
fine judges? Are active judges who are affiliated with the BSA any less capable of being impartial
than any other judge who brings a mix of experiences, opinions and perceptions to a case? In our
effort to dot every "i" and cross every "t", let's not kill common sense.
D
COMMENT:
Please do not adopt a policy which discriminates against the Boy Scouts of America or other similar
organizations. The US Supreme Court has confirmed the federal constitutional right of Freedom of
Association. This proposed policy flies directly in the face and spirit of the law as confirmed by the
US Supreme Court. This proposed policy is simply political maneuvering in contravention of a
judges constitutional rights. Do not make political correctness appear take priority over the law of
the land.
We need judges with independent thought and judgment, and not force them to conform to the
political thought of the day. That was Hitler. Please stand for freedom and not forced thought and
action.
This draft policy will negatively affect mothers and fathers who serve in our State as Judges who also
understand the great value of BSA, who sons and daughters may be forced to resign membership in
BSA in order for them to retain their jobs as judges. This is a sad state of affairs.
This proposed policy lack honestly and integrity and becomes a political test for politically correct
judges.
281. Doug Huth
Palm Springs, CA
A
282. Chris Hynes
Redlands, CA
D
COMMENT:
It appears here that a select committee is attempting to "create" a new law within one that has already
been approved by a previous court. Is the previous court's decision to specifically allow exceptions
for religious, military, and nonprofit youth organizations irrelevant? Should the previous court's
decision to retain the exception be so easily overturned by a "modification" to the law by a select
committee. This does not to appear to be a narrow or limited modification.
Rather, this proposed "modification" to Cannon 2C in regards to "nonprofit youth organizations",
such as the Boy Scouts of America, has a huge impact on a judges individual freedoms by imposing
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more restrictions on a judge's right to hear a case that he/she already has the right to recuse
him/herself of should he/she have a conflict of interest. This modification would limit the rights of
one of the parent, a current judge, in our local Boy Scout troop. Wouldn't this infringing on the
judges rights? Or does the argument go like this, "It's only one person, let him take his case to court."
How about this as an alternative, "Don't make such a lame modification to begin with."
Furthermore, to use the rationale of the ABA Model Code of Judicial Conduct as a means to
accomplish an end is transparent and an insufficient argument to strike the "nonprofit youth
organizations" exception. I would hope that the impact that such a modification would have to
undergo a more thorough review. Since there has not been an overwhelming argument to warrant
such a modification, I would urge that no changes be made to the "nonprofit youth organizations"
exception found in Cannon 2C.
283. Jason A. Ibey
Whittier, CA
D
COMMENT:
Dear Judicial Council's Rules and Projects Committee,
Maintaining the exception for nonprofit youth organizations would not, in my opinion, undermine the
community’s confidence in members of the judiciary. Instead, prohibiting members of the judiciary
from being members of, and holding leadership positions in, the Boy Scouts of America would, in
my view, actually serve as a detriment to society by removing good and honest members from such
organizations, thereby diminishing the positive influence of such organizations.
As a member of the Boy Scouts of America, and having attained the respected rank of Eagle Scout
(See http://www.scouting.org/scoutsource/BoyScouts/Youth/Awards.aspx.), I have seen firsthand the
beneficial impact of the Boy Scouts of America on its members as well as society at large. I am also
an attorney recently admitted to the State Bar of California on November 26, 2012, and although I do
not know what the future may hold for my legal career, I would like to think, should one day I have
the good fortune of being able to serve my community as a member of the judiciary, that my
membership in the Boy Scouts of America would only further my ability to uphold the law. Notably,
a scout “obeys the laws of [his] community and country” (See
http://www.usscouts.org/advance/boyscout/bslaw.asp.) and is charged with being “trustworthy, loyal,
helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent” (See
http://www.scouting.org/scoutsource/boyscouts.aspx.).
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While I acknowledge the Committee may have concerns regarding a certain policy of the Boy Scouts
of America (it is my understanding that the Boy Scouts allows openly gay boys to become scouts,
although gay members may not hold leadership roles), such policy is not, in any way, the result of
animus or ill-will towards others. In fact, members of the Boy Scouts of America are encouraged to
foster “values of good conduct, respect for others, and honesty”
(http://www.scouting.org/sitecore/content/home/boyscouts/thebuildingblocksofscouting/values.aspx.)
. Further, scouts are supposed to perform a special act of kindness each day in line with the Scout
Slogan, “Do a Good Turn Daily” (See
http://www.usscouts.org/usscouts/advance/boyscout/bsslogan.asp.). These are the type of people we
should want to be judges in our legal system in California.
Since the Committee proposes retaining the exception for religious organizations, and a judge’s
membership in religious organizations (or churches) is arguably more influential on a member of the
judiciary than membership in a nonprofit youth organization such as the Boy Scouts of America, why
then would the committee contemplate prohibiting membership in valuable organizations such as the
Boy Scouts of America where the influence on a member of the judicial is likely less significant than
that of religious organizations? If the Committee has sufficient confidence in members of the
judiciary to support the Constitution and laws of the United States by permitting membership in
religious organizations, I believe the Committee should likewise have confidence in the same
members of the judiciary to uphold such values and goals as members of the Boy Scouts of America.
I have continued confidence in the ability of the judges of the state of California to disqualify
themselves in the event participation in such organizations may necessitate recusal in accordance
with Canon 3E(1), 3E(4), or 3E(5) or statutory requirements.
Therefore, I respectfully submit to the Committee that the exception permitting members of the
judiciary to be members of and hold leadership positions in nonprofit youth organizations such as the
Boy Scouts of America should be maintained. I am confident that our judges are fully capable of
upholding the laws of the State of California and the Laws of the United States of America while
being active participants in the Boy Scouts of America.
284. Britt Imes
Victorville, CA
D
COMMENT:
I believe the proposal is inconsistent with long standing Constitutional principles, namely the First
Amendment rights of freedom of speech, association and religion. To target youth organizations
while protecting religious groups is contradictory. Many nonprofit youth groups are also sponsored
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or run by religious groups (e.g. BSA troops and packs sponsored by the local LDS stakes, Heritage
Kids, etc). Also it is inconsistent to exempt religious organizations and not youth groups when many
religious groups practice discrimination in not allowing certain genders in their leadership, don't
condone homosexuality, etc. By structuring this rule prohibiting such associations the Court is
saying it is okay to be Catholic or LDS but not in BSA or Heritage Kids.
It is also important to recognize that this proposal is singling out one group without recognizing there
are many others. Such targeted political motives itself flies in the face of impartiality and borders on
hypocrisy.
While it is important to insure that judges uphold high standards of impartiality, one must also be
respectful of each person’s individual constitutional rights to freedom of association, religion and
speech. Membership in any such group, association or religion does not automatically mean a judge
cannot be fair and impartial.
285. Nicole Jacobsen
Rancho Santa Margarita, CA
D
COMMENT:
The passing of this proposal will disqualify many exceptional candidates for the judiciary. It will
also undermine the public's trust and confidence in the selection of the judiciary and result in discord
and strife. If this proposal is passed, it will open the door to a list of organizations that judiciary
members cannot participate in. This proposal violates fundamental rights of free speech and
association. This proposal should not be passed.
286. Delilah Jaeger
San Diego, CA
D
287. James
Beaumont, CA
D
COMMENT:
288. Janelle
Carlsbad, CA
D
COMMENT:
I strongly disapprove and disagree with the proposed amendments to Canon 2C on the Code of
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Judicial Ethics. I disagree with the committee’s idea that eliminating the judge exception would
“enhance public confidence in the impartiality of the judiciary.” I propose that the exception should
be kept.
Thinking that judges can be impartial and that they will not be judged based upon their role in BSA
in terms of ethical, religious, and other views in incredulous and I do not believe it will benefit the
larger public group or the judges themselves.
Furthermore, the proposed amendments would stop any judge who is a member of a religious
organization from accepting church callings or assignments. My household and I firmly disagree
with the proposed amendment and do not believe it will benefit the public or enhance anything for
BSA. DO NOT APPROVE THIS AMENDMENT WE PLEAD.
289. Jared
Chandler, AZ
D
COMMENT:
I find it absurd to think that simply because of someone's affiliation with an organization that they
will not be allowed to be a judge. This goes against everything that is American and is more
consistent with those countries that first forced our founding fathers to come to this land to find
freedom and to believe what they wanted without fear of repercussions.
If the real essence of this proposal is to create an unbiased environment for judges to operate in then
it is only fair that any person that is associated with a gay or lesbian association should also not be
able to be able to be a judge.
Today there is so much media pressure to conform to what people deem as "right" and if you don't
agree with that you must change your beliefs and live with fear that if you state your beliefs you will
be attacked for them and persecuted for your belief.
This proposal begins a trend that will marginalize and persecute anyone that is willing to stand for
what they believe which again will go against everything that America stands for and was founded
on.
290. Jason
Tampa, FL
AM
COMMENT:
As far as I know discrimination in general is unlawful in any case with the exception of religion. after
reading this my interpretation is basically that they want to discriminate against religion bsa and
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Comment
military because they might turn out to be bias in certain cases. This definitely sounds like they want
to keep ethics out of the equation and very possibly free thinking as well. I have served in bsa the
Marines and in a religious institution but when it comes to work I maintain my morals while also
keeping personal matters separate. I see no reason why this example can't be adopted.
291. John Jay
Santa Rosa, CA
A
COMMENT:
As some businesses and even churches have shown by their examples, disapproval of prejudicial
policies must be consistently demonstrated. Withdrawal of corporate support, withdrawal of the
availability of meeting space, and other acts have confirmed the commitment of these leading
organizations to a more equal environment for kids and adults. It is time for the State of California, in
all of its branches, to do the same. How a judge, supposedly an impartial arbiter of the law, can be
expected to judge impartially when winking at discrimination around him or her is beyond me. This
loophole needs to be closed, and judges need to be held to the same degree of respect for equality as
the people and institutions on whom they pass judgment. The time has come!
292. Jeff
San Diego, CA
D
COMMENT:
This is targeted intimidation toward the Boy Scouts of America. CA judges should be free to
participate in scouting, as parents or leaders, in their personal time.
293. Tim Jeffris
Ventura, CA
D
294. Mark Jensen
San Francisco, CA
A
295. Mark Jensen
Calimesa, CA
D
296. Jeannette Jessup
Carmel, CA
D
COMMENT:
Is the next proposal to ban the judges from being part of a particular church, participating in the
I am a member of the State Bar of CA.
COMMENT:
The Federal and State governments are themselves turning into a religion. They are the religion of
anti-religion and it seems they can’t bear to have any of their “members” (employees, it won’t stop
with just the judges) choose for themselves how they will practice their religion.
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activities that go along with that church? I think this is a bad idea all around.
297. Grace Jo
Los Angeles, CA
D
COMMENT:
The rationale for allowing the nonprofit youth organizations exception in 2003 has not changed.
Therefore, I do not understand why deletion of the language is necessary and oppose deletion of the
exception.
298. Matthew Joens
Irvine, CA
D
COMMENT:
The proposed changes violate religious liberties. They should not be accepted.
299. Timothy Joens
Irvine, CA
D
300. John
La Mirada, CA
D
COMMENT:
This is religious discrimination. Pure and simple.
301. Jeffrey D. Johnsen
Oak View, CA
D
COMMENT:
Restricting a judges membership in the Boy Scouts of America is wrong for several reasons:
1. It infringes upon a judge's freedom of expression:
2. It assumes the BSA is a discriminatory organization with no proof. It is akin to telling a judge he
cannot be catholic because the catholic church will not allow female priests; 3. The entire proposal is
a bias based attack on value based organizations.
Don't buy into the gay and lesbian political machine.
302. Kathleen Marie Johnson
Cathedral City, CA
D
COMMENT:
This is ridiculous! Really, just ridiculous.
303. Tyler Johnson
Fullerton, CA
D
COMMENT:
Given that Homosexuals in California have a longstanding history of cruising the roads for
hitchhiking boys for the purpose of sex, the idea of punishing the Boy Scouts of America for
protecting its members against predators is as intolerant and bigoted as the Homosexual lobby could
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304. Weldon B. Jolley, PhD
Anaheim, CA
Position
Comment
possibly be. There is no right to an orgasm at the expense of minors, in the constitution.
Do judges still take an oath to the Constitution in this state?
D
COMMENT:
I think this type of thinking is so irrational that none of the choice institutions of the USA and the
world could never have a judge sitting his office who ever had contact with the Boy Scout,
Genealogists, historians of international reputations, and a variety of other areas of expertise and
dedication.
Please do not let a very deceitful group sway the live of millions of good men and women. Many of
these would make some the most erudite and scholarly judges we could ever have
305. Clay Jones
Laguna Niguel, CA
D
306. Fred Jones
Auburn, CA
D
COMMENT:
It is one thing to disapprove of the BSA, but it is another to punish those who associate with them.
This is guilt by association.
According to the court's website, the deadline for submitting comments is today, but I couldn't
find an email address to send my comments … please forward this to the appropriate Judicial Council
staffer handling Committee of Ethics re: Boy Scouts membership and judges"
I believe the Advisory Committee's recommendation to bar judges from supporting or being a
member of the BSA is an affront to the bar and to the Courts. The Boy Scouts of America has
inspired countless young men -- me included -- to live honorable and civically-minded lives, and for
the Advisory Committee to recommend membership in such should be barred for judges is Political
Correctness run amok, verging on totalitarianism.
Please reject the Committee's intolerant and close-minded call for striking the "nonprofit
youth organizations" exception and embrace the US Constitution's freedom to associate, especially
with an organization that has such a positive impact in the lives of young boys.
Thank you.
307. Robert Jones
Sacramento, CA
D
COMMENT:
I do not agree with the proposed changes to canon 2c as shown in SP14-02 for the following.
A Federal judge ruled against Proposition 8 not long ago. Soon after his ruling he retired and it was
disclosed that he was homosexual. His ruling was permitted to stand because many voices said that
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he should have been able to be unbiased in making judgments whether he was homosexual or
heterosexual. Why should a judge who is heterosexual and simply has a son in the Boy Scouts or is a
leader at even the lowest level in the Scouts in his neighborhood troop not be able to rule in cases
regarding sexuality similar to the Federal judge in Proposition 8. I am sure every judge in every
position has many opinions about many things. Isn't one of the reasons people are judges is that they
are able to put aside personal opinions and make a fair ruling? If the concerned amendments to canon
2C and its related articles are implemented it seems as if a double standard exists between federal
judgeships and California judgeships. Are we to next exclude homosexual judges from making
rulings in which heterosexual persons are involved?
308. Bill Jurkovich
Citrus Heights, CA
D
COMMENT:
Judges are to be impartial in their duties, ruling based only on the law. This was the basis of
allowing a homosexual judge with a long time partner to rule against Proposition 8.
Now there is a proposal to ban judges from the Boy Scouts. Are they also banned from being
Catholic, or Mormon, or Muslim, or member of some Republican groups? Membership and private
beliefs do not prohibit the impartial execution of one’s job, or even agreement with all the tenants of
the group. Several years ago, a man was let go from the Music Circus by executives because he had
privately contributed to Prop 8, even though homosexuals working at the Music Circus supported
him, saying he was friendly and it had no affect on his work. Tolerance, not bigotry, is the way we in
America should deal with people who have different beliefs.
309. JW
Riverside, CA
D
COMMENT:
The proposed legislation against judges with ties to the BSA will have a prejudicial impact on active
male members of the Church of Jesus Christ of Latter-day Saints (a church with over 15 million
members world-wide and countless strong members currently serving their respective communities
on the bench). Doing so, in turn, will severely limit the "religious exception" to those churches/faiths
that do not actively affiliate with BSA. (The LDS Church has long adopted the BSA as the activityarm for its youth activities; leaders in the Church are often enrolled in BSA to properly supervise
youth in BSA/Church activities.) More fundamentally, the State may not regulate such religious
affairs of active members in any church by limiting access to the judiciary. Doing so violates the
express religious protections afforded in the U.S. Constitution. Please reconsider.
310. Anthony K. Kalanui
Calimesa, CA
D
COMMENT:
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311. Makani P. Kalanui
Calimesa, CA
Position
Comment
D
COMMENT:
312. Malia K. Kalanui
Calimesa, CA
D
COMMENT:
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313. Renee A. Kalanui
Calimesa, CA
Position
D
Comment
COMMENT:
314. Saraia K. Kalanui
Calimesa, CA
D
COMMENT:
315. Hon. Stephen J. Kane
Fresno, CA
D
COMMENT:
I am not now nor have I ever been affiliated with the Boy Scouts. Nor have any of my children.
I oppose the amendment because I do not consider the Boy Scouts policy to be "invidious."
316. Jon Randall Kaplan
Santa Clara, CA
D
COMMENT:
Like what I believe to be the majority of my fellow citizens, I have rejoiced at the evolution of rights
long denied to persons of same-sex orientation. Whether or not the equal rights of gays and lesbians
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were denied for religious or personal reasons, I believe that that denial was invidious discrimination,
and I am pleased not only to see its end in legal and juridical terms, but also in the courts of public
opinion. I believe this to be a natural and necessary step forward in the evolution of a just society
under law.
I personally am an atheist, with no religious beliefs. Yet, just as it is incumbent for any atheist to
constantly bear in mind the rights to freedom of speech, freedom of conscience and religious belief,
and the right to free exercise of religion, despite what personal opinions and emotions that atheist
may harbor in regard to religion and toward its desirability and utility, I cannot ignore a simple pair
of facts. First, all major Western religions, as well as many others, have always unqualifiedly
condemned homosexuality as sinful; therefore many persons of those religious persuasions may not
feel, in good conscience, that they can support the legal rights of homosexuals and also maintain the
religious faith that it is their right to believe and exercise. Such persons have the same rights to free
speech, free conscience, free association, and free assembly as any other citizens. They have the right
to believe as they wish, worship as they wish, and to instruct and raise their children as they wish. I
am confident that the schools and the culture will provide more than adequate education in the
humanity and the rights of homosexual persons; I see no reason why parents, in the exercise of their
religious beliefs and practices, should not be allowed to present competing points of view. It is
natural and normal and an integral part of the history of not only this country, but of civilization in
general, that various religious, fraternal, educational, and other organizations arise that both reinforce
beliefs and also encourage friendly associations among persons of differing beliefs. I am loath to see
such organizations restricted in any way, and, in turn, to see membership in such organizations
denied to judges or to any public officials.
I believe that the Judicial Council is going down a dangerous road. Violence done to the fundamental
rights of free speech, religious belief, religious exercise, conscience, parenting, association, and
assembly is far too high a price to pay for even the long-denied rights of my gay and lesbian brethren.
The very act of labeling organizations that have long been part of the American social fabric as
discriminatory by their very nature is itself invidious discrimination against persons whose faith
demands that they see homosexuality differently than how the majority of us see it. I vehemently
oppose Proposal SP 14-02.
317. Erich Kather
Sunnyvale, CA
D
COMMENT:
An outrageous proposal. The Boy Scouts is a fine, honorable organization. If one doesn't agree with
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318. Kathy Kavanagh
San Diego, CA
Position
Comment
their principles, fine, don't. But to hold anyone, including judges, that supports or (essentially) has
anything to do with the Scouts, up to scorn or sanctions, is intolerant, hateful and un-American.
People proposing and supporting this, are the real intolerant ones.
D
COMMENT:
The Boy Scouts of America is not an anti gay group, the fact is that homosexual men are more likely
to molest boys. This isn't my opinion nor is it the Boys Scouts opinion, it is a sad fact of life welldocumented and supported by research by no less than the FBI as well as other law enforcement
agencies.
The Boy Scouts of America is motivated to protect the young boys in their care as best they can; not
to discriminate against gay men. If those who are campaigning to forbid judges to work with the Boy
Scouts could demonstrate to the Boy Scouts that the afore-mentioned research is wrong, then this is
what should be done; not limit a judge's right to free association. I am sorry to see the gay rights
movement degenerate into a vindictive, totalitarian mob.
319. Kay
Tustin, CA
D
COMMENT:
"enhance public confidence in the impartiality of the judiciary." I disagree with the committee's
position, and strongly encourage them to leave the exception as written.
320. Kurtis Kearl
Concord, CA
D
COMMENT:
I strongly oppose a blanket disqualification of judges on the basis of membership or leadership in the
Boy Scouts of America.
I am a member of the Church of Jesus Christ of Latter-day Saints and have served as a leader in the
BSA in connection with my church membership. The BSA is an integral part of the LDS church's
youth program for boys aged 7 through 18. Members of the church are often assigned by their
religious leaders to serve in positions of BSA leadership. This participation is regarded as church
service the same any other position in the church.
If Canon 2.C is amended to impose a blanket disqualification upon judges whose participation in the
BSA is pursuant to a an assignment given to them as part of their religious practice, it will effectively
nullify, as to those judges, the protection provided by the provision of the canon that exempts
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membership in religious organizations on the ground that such membership is constitutionally
protected.
I urge the Court to adopt an exception applicable to judges whose participation in the BSA is
pursuant their religious practice.
321. Hon. John Keegan (Retired)
Peoria, AZ
D
COMMENT:
The purpose of this rule change appears to use ethical guidelines to enforce a political position on an
issue that is currently in the middle of dynamic social flux. The current Boy Scout position has
changed significantly in the last year and will probably change again in the foreseeable future. As it
is, the BSA policy is virtually identical to the don't-ask-don't-tell that was the military standard until
very recently.
It is inappropriate for the bench to weigh in politically in the guise of ethics rules. I urge the
Supreme Court to reject this proposed rule change.
322. Mitchell Keiter
Beverly Hills, CA
D
COMMENT:
See attached PDF.
323. Cindy Kelley
Thousand Oaks, CA
D
324. Scott Kelley
Lake Sherwood, CA
D
COMMENT:
This is overreaching government intrusion into individuals’ personal beliefs.
325. Dennis Kelly
San Marcos, CA
D
COMMENT:
This proposed change would be an unreasonable infringement on a judge’s right to freedom of
association.
326. Rock Olney Kendall
Laguna Niguel, CA
A
COMMENT:
As a practicing attorney (CSB#179939) and the father of two Eagle Scouts, one of whom just
happens to be gay, I doubt that you'll find anyone more qualified to comment on this proposal. I
support it. It was half-hearted and disingenuous for the Boy Scouts last year to allow gays younger
than 18 but prohibit gay and lesbian adults from leadership roles. Your proposal, if adopted, should
encourage the Boy Scouts to be more inclusive. That would be good.
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327. Vance Kennedy
San Mateo, CA
A
COMMENT:
I believe the State should not provide exemptions for any organizations who discriminate. The
position of the Boy Scouts of America organization excluding gays should remove them from
consideration for special exemptions.
328. Stephanie Kennelly
East Elmhurst, NY
D
COMMENT:
This proposal is a form of prejudice, I do not agree with any proposal that would prohibit law abiding
citizens from serving as judges simply because they are affiliated with a time honored 100 year old
organization that serves our community.
329. Richard & Gloria Kitzman
Morro Bay, CA
D
COMMENT:
My wife and I thought that the law states that what a person does on his own time was that persons
business only. If so how can you tell judges what to do on their own time? We are against this
proposal.
330. Sherri D Knobloch
San Diego, CA
D
COMMENT:
member of BSA?” The answer….No, I do not. Since the “public” is made up of so many opinions
that do not agree, stating that “public confidence will be enhanced” by the change in this code
appears presumptive, because all public confidence would not be enhanced.
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who holds BSA membership. If an individual takes issue with what they believe to be the
impartiality of a judge because of their membership in BSA, or any other potential for conflict of
interest, there are already provisions in the Code of Judicial Ethics that facilitate recusal of a judge in
this type of circumstance.
Thank you.
331. Lawrence Ko
San Diego, CA
A
332. Hon. Barbara A. Kronlund
Stockton, CA
D
I submit these comments in opposition to the proposed amendments to Canon 2C of the Code of
Judicial Ethics. These comments are made in my personal capacity, and are not made in any
representative capacity.
I am in my 19th year on the bench, serving San Joaquin County as both a court commissioner and
judge. I previously served on the Judicial Council Access & Fairness Advisory Committee, the
CJER Fairness Education Committee, and have been a member of the CJA Judicial Ethics Committee
for 6 years. I am also a mom of a 13-year old Boy Scout who is working on becoming an Eagle
Scout, the highest award in Boy Scouts.
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Since taking the bench, I have willingly given up many personal freedoms, including virtually
dropping out of the political scene, despite truly enjoying participation. I willingly stopped attending
many functions, as did my family, due to my career choice and the restrictions imposed by the
Canons and my own set of standards to avoid the appearance of bias or partiality.
Right to Free Exercise of Religion
I see this whole issue of revising Canon 2C as a slippery and really dangerous slope---one that
inevitably and necessarily will lead to the infringement of my right to free exercise of religion as
guaranteed by the First Amendment of the Constitution.
The Boy Scouts of America seek to instill certain values in members which are found in the Boy
Scout Oath and Law. Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670.
1
The Boy Scout Oath states: “On my honor I will do my best to do my duty to God and my country
and to obey the Scout Law; to help other people at all times; to keep myself physically
strong, mentally awake, and morally straight.” The Boy Scout Law provides that a scout is
“trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean,
and reverent.” Scout Law provides that a scout is reverent toward God. He is faithful in his
religious duties. He respects the beliefs of others. The organization has consistently held the view
that homosexual conduct is immoral and incompatible with the Boy Scout Oath and Law. In the
Curran case, there was testimony that the terms “morally straight” and “clean” have been in use in
the Scout Oath and Law from the early 1900’s when it would have been clearly understood that
homosexual conduct was considered immoral (and illegal), and that the words continue to be
interpreted by the Boy Scouts of America as rendering homosexual conduct unacceptable today..”.
Id. at FN.8.
Unless you have been a Boy Scout or had a son in Boy Scouts, you may not be aware of the strong
and pervasive religious aspect of Scouting. Since we are practicing Catholics, my son joined an allCatholic Troop as a Cub Scout when he was 6 years old. Participation in Boy Scouts is a Youth
Ministry of the Catholic Church, much like service as an Eucharistic Minister, Altar Server, Lector or
1
http://www.scouting.org/Visitor/WhyScouting/FaithTraditions.aspx
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participation in the Choir are also ministries within the Church in which lay parishioners are
encouraged to participate. 2 All of our meetings and ceremonies were either in the sponsoring
church, or on church property, with the Priest participating on many occasions. For the religious
award ceremonies, we were graced with the Bishop presiding, in addition to our local Priest.
In the February 8, 2014 church bulletin for St. Joachim’s Catholic Church, there was an
announcement titled, “Catholic Scouting YYA”, which invited all scouts to attend and support all
those earning awards with several youth organizations, including Boy Scouts and Girl Scouts. The
website was noted as www.sdccscouting.org. 3
The Boy Scout program identifies itself as a program guided by moral principles. In the companion
case to Curran, Randall v. Orange County Council, the California Supreme Court addresses the
religious component of scouting. (1998) 17 Cal.4th 736. Twin brothers attempted to obtain the level
of “Bear” rank, but refused to complete a part of the ranking process that required them to promise to
do their best to obey God and country. Id. at 739. During the course of the suit, the Boy Scouts
“produced evidence intended to demonstrate that it does … have a religious message” and that the
message was to be conveyed to scouting members. Id. at 741. Even further, one of the responsibilities
of scouting leadership is to “instill the values of the organization in their charges, including the value
of reverence for God.” Id. at 742.
As discussed in the Randall case, supra, one of the requirements for advancement in the Boy Scouts
has a religious component, which was stated in the following terms in the materials provided to boys
seeking advancement: “We are lucky the people who wrote and signed our constitution were very
wise. They understood the need of Americans to worship God as they choose. A member of your
family will be able to talk with you about your duty to God. Remember, this achievement is part of
your Cub Scout Promise. 'I, ___, promise to do my best to do my duty to God and my country.' ”
2
National Catholic Committee on Scouting website: http//www.nccs-bsa.org/aboutUs.php- The purpose of the NCCS is to utilize and ensure the constructive use of the program
of the BSA as a viable form of youth ministry with the Catholic Youth of our nation. The NCCS seeks to sustain and strengthen the relationship between the BSA and the Catholic
Church and to work cooperatively with the National Federation for Catholic Youth Ministry (NFCYM) and various other groups involved in youth ministry in the United States.
3
The website takes you to a page titled “Stockton Diocesan Catholic Committee on Scouting”, and states: The Stockton Diocesan Catholic Committee on Scouting (SDCCS) is a
committee affiliated with the Diocese of Stockton, California. Youth Ministry serving The Greater Yosemite Council of the Boy Scouts of America, Heart of Central California
Council of Girl Scouts USA, and American Heritage Girls. The Committee is dedicated to promoting “Duty to God” at each level of Scouting. We are affiliated with the National
Catholic Committee on Scouting (NCCS), an advisory to the Boy Scouts of America, National Catholic Committee on Girl Scouts and Camp Fire, and Region (11) of the NCCS
(and NFCYM). Click here for SDCCS BYLAWS. The bylaws are signed by the Rev. Bishop Stephen Blaire of the Stockton Diocese.
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Further, the Cub Scout seeking advancement to the “Bear” rank is instructed to: “Practice your
religion as you are taught in your home, church, synagogue, mosque or other religious community.”
Religious emblems provided by the scout's own religious institution also may be earned at this point
in Scouting. Id. at 42. Boy Scout leaders are instructed that they “can be positive in their religious
influence and can encourage Scouts to earn the religious emblem of their faith.” Barnes-Wallace v.
City of San Diego (2012) 704 F.3d 1067, 1073.
Randall continues, “With respect to the religious element of its teaching, although the Boy Scouts of
America does not define what constitutes belief in God or membership in a religious organization, it
strongly encourages boys to join and participate in the religious programs and activities of a church,
synagogue, or other religious association. Adult leaders are trained to instill the values of the
organization in their charges, including the value of reverence for God. Adult Cub Scout leaders are
expected to convey to their scouts the fundamental belief that they cannot develop into the best kind
of citizen without recognizing an obligation to God. Leaders specifically are instructed to introduce
the idea and meaning of God to scouts, and to teach nonsectarian religious ideals by way of
explaining the child's duty to God.” Id. at 742.
A judge on my bench is a practicing Mormon, and he’s an Eagle Scout who is also a Scoutmaster at
his church. His own sons are either Eagle Scouts or working toward their Eagle award. This judge’s
“calling” or religious duty through his church is to be a Scout leader for the Mormon youth at his
church. All meetings are held at his church or on church property. Last year, the Mormon Church in
Utah celebrated their 100-year affiliation with the Boy Scouts of America. There is a long history of
all-Mormon Scout Troops.
Judges have always enjoyed our freedom of religion rights, and the Boy Scout issue is inextricably
bound to the right to exercise one’s freedom of religion. Although I mention the Catholic and
Mormon religions, there are many more religions that promote Scouting and all have particular
emblems and awards that the Boy Scout can earn that are specific to their particular religion. Have
you considered that having judges participate as leaders is the best assurance of obtaining change in
this area? Judges are wonderful change-agents who can lead others to do the right thing.
I view the proposed amendment as an attempt to legislate morality of judges and moreover, to punish
the Boy Scouts for their recent decision regarding gay and lesbian participation in Boy Scouts. The
Supreme Court’s Advisory Committee’ s request for comment indicates that the proposed
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amendment to Canon 2C is in response to the end of the military’s Don’t Ask, Don’t Tell policy, and
the Boy Scout’s recent decision to end its policy barring gay youth from becoming Scouts, yet still
prohibiting openly gay and lesbian adults from being troop leaders. If this amendment to Canon 2C
is enacted, judges will be required to give up religious affiliations in order to maintain their position
as a member of the California judiciary. Forget about judges participating in most forms of
mainstream religious practices since many religions do in fact entertain discriminatory practices and
beliefs. The unintended consequence of amending Canon 2C is to impose a restraint on judges’
freedom of religious expression.
In the Barnes-Wallace case, supra, lesbian parents and agnostic parents and their scouting-aged sons
brought suit against the City, Boy Scouts and the Boy Scout Council for various claimed violations
due to the Scouts’ prohibition of atheists, agnostics and homosexuals from being members or
volunteers and requiring members to affirm a belief in God. The Desert Pacific Council (Council) is
a nonprofit corporation chartered by the Boy Scouts to administer scouting programs in San Diego.
Per both Plaintiffs and Defendants in the Barnes-Wallace case, “The Council itself is ‘not a house of
worship like a church or synagogue, but it is a religious organization.’ All members and volunteers
take an oath to ‘do my best to do my duty to God and my country’, and to remain ‘morally straight.’
Duty to God is placed first in the Oath as ‘the most important of all Scouting values.’ ” The 9th
Circuit Court of Appeals ruled in favor of Defendants, noting many such groups limit their
membership or services on the basis of culture, ethnicity, or religion. At footnote 2, the BarnesWallace court stated: “These organizations include indisputably religious and arguably religious
organizations (e.g. San Diego Calvary Korean Church, Point Loma Community Presbyterian Church,
Jewish Community Center, Salvation Army), organizations concerned with children or the elderly
(e.g., Camp Fire, Girl Scouts, ElderHelp, Little League), organizations that limit their membership or
services on the basis of race or ethnicity (e.g., Vietnamese Federation of San Diego, Black Police
Officers Association), and art museums and similar institutions (e.g., San Diego Art Institute, Old
Globe Theater).” Id., at 1073.
Right of Expressive Association
The US Supreme Court case of Boy Scouts of America v. Dale (2000), 530 US 640, was a case in
which the Supreme Court ruled that applying New Jersey’s public accommodations law to require
Boy Scouts to admit plaintiff, a gay rights activist as assistant scoutmaster, violated Boy Scouts’ First
Amendment right of expressive association as guaranteed by the First Amendment to the
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Constitution. Some language from the case is instructive: “In so ruling, the Court is not guided by
its view of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or
wrong: public or judicial disapproval of an organization’s expression does not justify the State’s
effort to compel the organization to accept members in derogation of the organization’s expressive
message. While the law may promote all sorts of conduct in place of harmful behavior, it may not
interfere with speech for no better reason than promoting an approved message or discouraging a
disfavored one, however enlightened either purpose may seem.” The Court further states: “As is
true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that
they view a particular expression as unwise or irrational (citations omitted). Religious beliefs need
not be acceptable, logical, consistent, or comprehensible to others in order to merit First
Amendment protection.” (Emphasis added). And the majority point out a flaw in Justice Stevens’
dissent, saying, “Justice Stevens’ dissent makes much of its observation that the public perception of
homosexuality has gained greater societal acceptance. But this is scarcely an argument for denying
First Amendment protection to those who refuse to accept these views. The First Amendment
protects expression, be it of the popular variety or not.”
I’ve heard it argued that judges can still “participate” in Scouts, as can their sons, as the prohibition is
merely as to “leadership” in the organization. But in practical terms, that doesn’t work. Only Scout
leaders are allowed to attend certain Scout camps. In fact, our Mormon judge is scheduled to attend
Scout Camp with his children and his Troop this summer. If he is not a leader, he cannot attend.
Further, there are many families where either there is only one parent, or only one parent has the
time, inclination, or ability to participate in their children’s activities. That means, in practical terms,
the want-to-be Boy Scout suffers the consequences, despite the Ethical Canons inapplicability to
family members.
Duties to Disclose and Disqualify Under Existing Canons are Sufficient
Judges presently are under a duty to disclose and disqualify in appropriate cases pursuant to Canon
3E and CCP section 170.1(a)(6)(A)(iii). Canon 2C prohibits membership in organizations that
invidiously discriminate, excepting membership in a religious organization, official military
organization of the U.S., and nonprofit youth organization, since, as the Commentary explains, such
membership gives rise to the perception that the judge’s impartiality is impaired. Canon 2C refers to
Canon 4A, which also prohibits judges from conducting their judicial activities in such a way that
would cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or
lead to frequent disqualification of the judge.
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Even where a judge believes they can be impartial and that there is no basis for actual
disqualification, Canon 3E mandates disclosure of all information reasonably relevant to the issue of
disqualification. This is all that should be required. It has worked thus far. Further, as Judge David
Rothman states in the California Judicial Conduct Handbook, 3rd Ed., at Section 10.20, there must be
a “nexus” between membership in the discriminatory organization and the judge’s ability to be fair
and impartial. Further, “although it may be proper for a judge to belong to a nonprofit youth
organization that invidiously discriminates against gay men, a judge would have to consider whether
or not disqualification would be required in a case ‘where appropriate’ based on the appearance of
partiality and, if not disqualification, disclosure.” Id. at 10.21. Judge Rothman continues, and
addresses religious organizations that a judge may be a member of that practice invidious
discrimination (against gays, lesbians, women, racial groups, or non-members), pointing out that the
judge need not consider disqualification in an appropriate case, as an interpretation of Canon 2C
would raise serious federal and state constitutional issues related to religious freedom. As provided
in CCP section 170.2(a), the fact that a judge is a member of a religion is not a ground for
disqualification.
While judges certainly have a heightened duty, “the proper performance of judicial duties does not
require a judge to withdraw from society and live an ascetic, antiseptic, and socially sterile life.”
United Farm Workers of America v. Supreme Court (1985) 170 Ca.3d 97, 100. That is what
changing Canon 2C is asking of judges now: to withdraw from religious organizations that have been
thus far protected under the First Amendment. The Supreme Court Advisory Committee offers no
statistics or examples of any problems with the current system of disqualification and disclosure
which would warrant the “remedy” proposed in the suggested amendment to Canon 2C.
By revising Canon 2C to prohibit judges from serving in a leadership role for the Boy Scouts, you
will be elevating gay-rights above religious freedom rights. Judges will clearly be deprived
of their right to practice their religion through service in the Boy Scouts. How will that result support
or foster public confidence in the judiciary or judicial system?
333. Carl Kube
Roseville, CA
AM
Thank you for considering my letter.
COMMENT:
The prohibition should not be a blanket prohibition but should apply on a case by case basis.
Who makes the decision as to whether a Youth Organization is biased on the basis of sexual
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334. Chandler Eliason Kunz
Tustin, CA
Position
Comment
orientation. This could be a very subjective decision. You are taking away basic freedoms which our
ancestors fought to preserve. We don't want judges who are politically correct but ones who have
high integrity. I thought Judge Vaughn Walker should have been prohibited from making the
decision on Prop. 8 because by his lifestyle he was obviously biased against traditional marriage.
D
COMMENT:
Coming from a large family that has a great history and relationship with the Boy Scouts of America
as well as many family members being members of the California Bar I must object to this proposal.
My Grandfather, Orange County Judge Max V. Eliason wouldn't stand for this either if he was still
alive.
These changes are uncalled for and unnecessary. This is just another jab towards those people that
believe in traditional marriage and family values. They are trying to get rid of anybody who disagrees
with same sex marriage especially those in the court system that could oppose them.
Please don't let this proposal go forward. You are putting the family in jeopardy and future
generations.
335. Rebecca Kunz
Tustin, CA
D
336. Jay Laefer
Redwood City, CA
A
COMMENT:
As an attorney in California (#221357), I strongly support these changes to the Code of Judicial
Ethics. They are an important step in treating all Californians with full equality.
337. Weston LaGrandeur
Carmel Valley, CA
D
COMMENT:
Recently, it was brought to my attention that there is a proposal before the Ethics Committee of the
Supreme Court that would ban Judges in California from holding membership in the Boy Scouts of
America and other organizations. Personally, I am very upset to hear that such a amendment would
even be considered. I earned my Eagle Scout from Troop 127 of Carmel Valley, CA in 2009 and
attribute a lot of my success and development as a leader, team player and contributing member to
society to the adult leaders in my troop, council and district. My issue with this proposal is twofoldboth personal and principal based. Personally, Judge Larry E Hayes of Carmel Valley Troop 127 has
dedicated not only his time and money, but also his wholehearted effort to improve the lives of our
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community's youth and serve as a role model. Having worked, traveled and scouted with Judge
Hayes, I can say that his efforts were not in vain and noticed by every single scout and adult leader he
came in contact with. It would deeply sadden me to hear that he would have to forfeit his
membership to the Boy Scouts of America and he would be a massive loss in leadership to our troop
and community.
Secondly, as a Stanford graduate and a newly admitted medical school student I have attributed much
of my success to my time spent in the Boy Scouts of America and my Eagle Scout Award. I find it
hard to be proud of this organization when it discriminates against some of the most moral and level
headed members of our society. To quote Judge Hayes, “the local Pack or Troop... has NEVER
discriminated against a youth or adult as a result of sexual orientation or any protected class for that
matter. In fact, even before the BSA changed its policy, our troop had an openly gay scout in its
membership". I quote him in this instance because I feel that he expresses my feelings and beliefs
exactly. Discriminating against protected classes is not only an antiquated part of society but also a
source of embarrassment for many members of the organization. I strongly hope that the Ethics
Committee of the Supreme Court rejects this amendment and upholds the qualities that the Scout
Oath and Scout Law dictate.
338. Michelle Lakey
Los Osos, CA
D
COMMENT:
I strongly disagree with these proposed changes. Many judicial officers serve as BSA leaders and
provide excellent role models for young men women. There is no evidence that any judicial officer
who belongs to BSA has exhibited bias from the bench on the basis of sexual orientation. Prohibiting
membership in BSA does violence to the ideal of viewpoint diversity among bench officers. These
officers retain an equally profound commitment to equal justice for all, regardless of individual
sexual orientation. To suggest that these judicial officers cannot act impartially is intolerant and
narrow-minded.
I hope that thorough examination into the results of this action will be considered. I see no positive
outcome for these proposed changes. Please do not pass this proposal.
339. Graig Larsen
Thousand Oaks, CA
D
COMMENT:
I am strongly against the proposed bill excluding members of the Boy Scouts of America from
appointment as judicial officers. This is exactly the kind of political correctness that a free and open
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340. Bob Larson
Folsom, CA
Position
Comment
judiciary is intended to protect AGAINST. This kind of legislation will exclude highly qualified,
competent, intelligent, thoughtful individuals from the bench, where they could certainly serve
admirably in the pursuit of the application and enforcement of laws. This legislation is driven by
lobbyists with an axe to grind in promotion of narrow interests and should be vigorously opposed. I
am extremely disappointed that this legislation could be taken seriously by anyone who has any
actual knowledge of the Boy Scouts, their mission, their enhancement of leadership skills, patriotism,
civic duty, service, and all the other qualities the Boy Scouts have championed for over a hundred
years. I urge a vote against this unwanted, unneeded, detrimental, prejudicial, and, yes,
discriminatory legislation. How hypocritical and infinitely more damaging to the state and nation
would be passage of this patently discriminatory act in the guise of protecting against perceived
discrimination by the Boy Scouts, than is the discrimination these so-called and self-identified
champions of freedom and equality view in the positions taken by private citizens and groups outside
the public arena to adhere to core values, however repugnant those values may seem be to the
promoters of this legislation. If the state discriminates on the basis of private beliefs, is that more
acceptable than the discrimination practiced by private individuals and institutions who practice those
beliefs? This legislation is wrongheaded and, frankly, shameful and I cannot believe it could pass
constitutional muster. I'm sure taxpayers, already burdened in this state, will wonder if the costs
associated with the months and maybe years of litigation that will surely follow passage of this act
are worth throwing the baby out with the bathwater.
D
COMMENT:
As a community we should foster our diversity because it brings with it a wide range of thought and
input, especially when it comes to the question of morals. Whenever we start to eliminate or restrict
others from practicing what their morals lead them to do, no matter if it is for or against a certain
stance, we eliminate that diversity of involvement that has made us so great as a nation. The issue
seems to be especially egregious in the case of discriminating against those who respectfully have a
difference of opinion on sexual orientation ala the policies of the BSA. By writing these restrictions
into the code you are eliminating the diversity of opinion that an organization that lives at the
intersection of religion and public has struggled to deal with. The BSA's involvement with religious
organizations require that there be some acknowledgement of the moral issues of homosexuality.
And yet the state is the first in line to punitively restrict the BSA, an organization that does only
good.
I will ask the question very simply. The LGBT movement no doubt has the right to be treated
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without discrimination. Why then should someone who respects but does not agree with the LGBT
morals be restricted in what they do in their personal time? Doesn't that person also have an equal
right of non discrimination? In the end you will never be able to end discrimination using
discrimination.
341. Charles Lawrence
Aliso Viejo, CA
D
COMMENT:
I want judges to be able to serve with the Boy Scouts of America.
342. Hon. Edward F. Lee
AM
COMMENT:
Thank you for the opportunity to comment on the proposed amendments to Canon 2C of the Code of
Judicial Ethics. The comments expressed herein are my own and are not made on behalf of any
organization or government entity.
By way of background, I am the immediate past chair of the CJA Committee on Judicial Ethics, and
have served on that committee and its associated Hotline for many years. I also serve on the board of
a nationwide youth serving organization that fully embraces diversity in both our youth and adult
leader members. I have never been a Boy Scout or Scout leader.
It is beyond question that judges must avoid impropriety and take all reasonable actions to promote
public trust and confidence in the judiciary. That said, I am concerned that the proposed changes do
not go far enough in that regard, and – worse yet -- may actually be counter-productive.
The proposed changes are not likely to accomplish the admirable goal of further promoting public
confidence in the integrity and impartiality of the judiciary, and do not address significant underlying
issues concerning actual and apparent judicial bias shown by associating with certain groups and
organizations.
I. The changes are problematic and unlikely to be effective and accordingly will not succeed in
promoting public confidence in the integrity and impartiality of the judiciary.
A. Proposed Changes Treat Similar First Amendment Rights Differently.
Existing language in Commentary to Canon 2C recognizes both a religious organization exception
and a non-profit youth organization exception, and clearly states the necessity for each. The religious
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exception is declared necessary because “religious beliefs are constitutionally protected,” presumably
by the First Amendment. Similarly, the Commentary language declares that the nonprofit youth
organization exception must be permitted “to accommodate individual rights of intimate association
and free expression,” again presumably based on First Amendment protections.
The Committee’s proposed amendment would delete judges’ First Amendment rights to Freedom of
Association, but retain the right to Freedom of Religion, but provides no rationale about why the
Code should treat some First Amendment rights differently than others. It is difficult to imagine how
a judge’s membership in an organization that practices invidious discrimination should be acceptable
only if it is based on religious principles.
Restated, it is difficult to understand why the Code should protect a judge’s membership in the
Westboro Baptist Church 4 while forbidding the same judge from serving as a scout troop secretary.
Surely such a result cannot promote public confidence in the judiciary.
B. Pragmatically, Eliminating the Youth Organization Exception is Unlikely to Affect Membership
in the Boy Scouts.
Assuming that the Committee’s amendments are adopted, it appears that judges may still ethically
maintain memberships in the Boy Scouts since that particular organization has a substantial faith
component and would likely qualify as a “religious organization” permitted by the existing
exception.
According to their website 5, “Duty to God” is a key tenet of Scouting. The organization’s charter
contains a “Declaration of Religious Principle.”6 While Scouting does not require membership in a
particular church, a “duty to God” is contained in the Scout Oath required of all members, and the
Scout Law requires all boys to be Reverent. 7 Many, if not most, troops are directly sponsored by
churches, temples, and other organized faith communities.
4
A church best known for its extreme ideologies concerning gay persons. Official website: www.godhatesfags.com
http://www.scouting.org/Visitor/WhyScouting/FaithTraditions.aspx
6
http://www.scouting.org/scoutsource/guidetoadvancement/appendix/charterandbylaws.aspx
7
“REVERENT. A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.”
5
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Accordingly, since Scouting is an organization with religious principles and practices that apply to all
members, it would appear to qualify as a “religious organization” in any event. Therefore,
eliminating the nonprofit youth organization exception while maintaining an religious organization
exception would be unlikely to affect judges’ memberships in the Boy Scouts.
C. “Appearance of Bias” Concerns Raised by Memberships Are Adequately Addressed by Other
Canons; Canon 2C is Unnecessary.
The existing Commentary to Canon 2C announces that judges’ memberships in organizations that
invidiously discriminate is prohibited (subject to the exceptions) because such a membership “gives
rise to the perception that the judge’s impartiality is impaired.”
The Code wisely recognizes that all judges are human beings and have inherent biases. To safeguard
the public and promote public confidence in the judiciary, judges are trained to recognize their biases
and to disclose them and /or disqualify in appropriate cases as required by Canon 3. Even when
judges believe they can be impartial, Canon 3E requires disclosure of all information reasonably
relevant to the issue of disqualification.
Canon 4A already prohibits judges from conducting their extrajudicial activities in a way that would
“cast reasonable doubt on the judge’s capacity to act impartially,” “demean the judicial office,” or
“lead to frequent disqualification of the judge.” The Commentary to Canon 4A specifically refers to
Canon 2C.
There is no rationale offered why the appearance of bias issues created by membership in invidiously
discriminating organizations should be treated differently than other appearance of bias issues.
Rather than categorically prohibiting some discriminatory memberships and allowing others, we
should rely on the protections and mechanisms of Canons 3E and 4A and simply require the
disclosure of such memberships in appropriate cases. Canon 2C is simply unnecessary to protect
litigants and promote public confidence in the judiciary. Paradoxically, by treating one kind of
appearance of bias differently from all others, it actually makes it harder for litigants to be apprised
of information they might find helpful on the issue of disqualification when it involves a judge’s
religious views.
Interestingly, temporary judges are not prohibited from membership in an organization that
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invidiously discriminates. However Canon 6D(5)(b) simply requires that they disclose such
memberships “in all proceedings,” subject to the religious, military, and nonprofit youth organization
exceptions. Here again the Code pragmatically uses the tool of disclosure to ensure that litigants have
the information relevant to disqualification and serves to promote public confidence in the judicial
system. The Commentary does not explain why appearance of bias issues in temporary judges
should be treated differently than with regular judges. There is no reason to treat temporary and
regular judges differently in this regard; both regular and temporary judges should disclose the
memberships in appropriate cases in the same manner.
II. Regardless of Whether the Proposed Amendments Are Adopted, the Code Should Define
“Invidious Discrimination” in the Terminology Section
The Code itself does not currently define the term “invidious discrimination;” however the
Commentary does provide some guidance. The Commentary lists a number of “factors” that should
be considered when judges attempt to determine whether a given organization invidiously
discriminates. “[This is] often a complex question to which judges should be sensitive.”8
The CJA Ethics Committee has on occasion struggled with assisting judges with this very question.
Reasonable minds applying the Commentary-provided factors have differed as to whether, for
example, a golf club that has different tee hours for men and woman players is engaged in invidious
discrimination such that judges may not be members. (One gender may appear to play slower or
faster than the other; or drive the ball farther (or not), or simply because “single gender groups prefer
to play that way.”) Single gender clubs or organizations can be problematic to categorize.
Judges would welcome a more precise and workable definition of invidious discrimination.
III. Recommended Action – Delete Canon 2C and Require Disclosure of Membership in Any
Organization That Invidiously Discriminates, Including Religious Organizations
Rather than tinker with Canon 2C, I recommend that it be deleted and Commentary language be
added that makes it clear that in appropriate cases judges must disclose membership in organizations
that invidiously discriminate, regardless of whether the organization is a social club, a youth serving
organization, or a church.
8
Official Advisory Committee Commentary to Canon 2C
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I would be happy to provide further comments or assist the Committee in any way.
343. Hon-Man Lee
Houston, TX
D
COMMENT:
The committee note for the ABA Model Code of Judicial Conduct stated:
"[2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from
membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation
persons who would otherwise be eligible for admission. Whether an organization practices invidious
discrimination is a complex question to which judges should be attentive. The answer cannot be
determined from a mere examination of an organization’s current membership rolls, but rather,
depends upon how the organization selects members, as well as other relevant factors, such as
whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of
legitimate common interest to its members, or whether it is an intimate, purely private organization
whose membership limitations could not constitutionally be prohibited."
The Boy Scouts don't act arbitrarily in excluding persons. They are an expressive association
communicating a message. It is "dedicated to the preservation of religious, ethnic or cultural values
of legitimate common interest to its members."
344. William Lemmon
Los Angeles, CA
A
345. Mark A. Lester, Esq.
Oxnard, CA
D
COMMENT:
Boy Scouts of America is about raising young boys to become productive, self-reliant and lawabiding young men. Sexual orientation has nothing to do with any part of the training or core beliefs
and is not mentioned anywhere in the Scout Law, Scout Oath, Scout Motto or Scout Slogan.
It is completely hypocritical of the court to permit judges to serve "ethically" who belong to a
religious organization that openly discriminates on the basis of sexual orientation on the grounds of
religious freedom yet ban otherwise qualified persons from serving as a judge because a national
policy of a nonprofit youth organization which they don't personally follow is offensive to court.
Freedom of association is equally protected under the 1st amendment as is freedom of religion.
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The test should be whether or not a judge actually discriminates in the performance of his/her duties
on the bench, not simply blanket disqualification because a part of an association to which he/she
belongs has an evolving policy that is not yet politically correct.
346. Paul Leveque
San Diego, CA
A
COMMENT:
There is no room for this discriminating exception in the courts.
347. Gregory Lewis
Crestline, CA
D
COMMENT:
I believe that the BSA, as the largest organization subject to this proposal, as well as other
organizations that could fit this category, are good organizations that promote the general welfare and
common interests not only of its members but of society as a whole.
The proposed changes would prevent civil-minded people from supporting organizations that are
proactive in society, and would hinder the courts and the groups, as well as the people they serve.
348. Kent Lewis
San Diego, CA
D
COMMENT:
1) Prohibiting membership in BSA is no more than a politically correct attempt to enforce a uniform
point of view. This is the opposite of diversity and an attempt to close down honest discussion.
2) It is anti religious. Many people have sincerely held religious beliefs concerning the morality of
homosexual conduct, and yet there is no evidence that judges have allowed those beliefs to affect
their conduct on the bench. To suggest that these judicial officers cannot act impartially is intolerant
and narrow-minded.
349. Kevin Lewis
La Mirada CA,
D
COMMENT:
On behalf of myself, my fellow law professors, and fellow theologians, we urge rejection of the
current proposal to amend SP14-02 to require judicial officers to renounce or avoid any affiliation
with the Boy Scouts of America (BSA) and similar organizations. Forbidding judicial officers from
refraining from associations with a long-established and esteemed youth organization such as the
BSA is neither a compelling interest of government, nor is it reasonably related to a legitimate state
interest. This rule change will not improve the judiciary in the State of California. It will simply
exclude qualified people from serving as judges.
All judicial officers of all political, religious, and moral persuasions are capable of fairness and
impartiality notwithstanding their private affiliations with any organization, including youth
organizations such as the BSA. As such, the reasoning of the proposed rule change is flawed in its
epistemic and legal justification for eliminating the exemption. Judicial officers, for example, are
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permitted to be members of religious organizations whose theology, philosophy, and praxis are
similar to that of the BSA. The hard fact is that a conservative judge with character and integrity can
remain impartial and fair even if his or her religion holds that homosexuality is morally wrong. The
antithesis is true as well. A progressive judge can uphold all existing laws on gun rights if he or she
has integrity. All judges in almost all cases separate their personal views from their professional
duties. Accordingly, the proposed rule change is unnecessary and results in the apparent unintended
consequence of discriminating against the BSA and judges whose moral views comport with this
organization.
Aside from discrimination against the BSA and the judges affiliated with them, the proposed rule
change would violate the First Amendment rights of judges with respect to their freedom of
association, freedom of speech, and free exercise of religion. This is unacceptable.
Finally, this proposed rule appears to inject politics into the judiciary with the result that many wellqualified judicial officers would be excluded from serving on the bench. I know I speak for many of
my colleagues and constituents in academia and the legal field. We urge its rejection.
350. Nathan Lewis
La Jolla, CA
D
COMMENT:
At face value this proposal looks as if it is a valid move to avoid having judicial members with
prejudice based on race, religion, gender, or sexual preference. However, this move actually biases
the law process with respect to gender, religion, and sexual preference. There is a significant portion
of the California population who are affiliated with the BSA. These are predominantly male,
affiliated with religions, and heterosexual. By blocking affiliates with the BSA, you are biasing the
judicial pool against these three areas, instead of allowing for the possibility of obtaining a more
representative sample of the population in judicial roles (which is already biased grossly, based on
socioeconomic factors and availability to higher education). We don't need more regulation to further
skew the judicial pool.
This is also a direct attack against those affiliated with religions that "call" members of the
congregation to serve as leaders in the local BSA troops. For example, I have been asked by my
congregation to serve as a cub scout leader. Because of my faith, I do not feel it would be appropriate
to turn down such "callings" of service. Thus, because of my religious faith, I would be discriminated
against by this proposal.
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Instead we should be seeking out opportunities to unite the residents of California. We should be
seeking out opportunities to integrate ourselves and working on legislation that would increase the
chances that these organizations will realize their discriminatory practices and change their policies.
Trying to force changes by discriminatory legislation will only breed discontent and further
discrimination.
351. Tim Lewis
San Diego, CA
D
COMMENT:
Very much opposed to a requirement preventing a judge from being part of the Boy Scouts of
America.
Unconstitutional in my opinion.
Egregious totalitarianism.
Most Californians are unaware this is being proposed.
Most Californians that hear about this proposal are dead set against it.
Please throw this out and place it where it belongs in the trash!!!
352. Jim Libbin
Las Cruces, NM
D
COMMENT:
I know quite well a California judge who will be adversely affected by this proposal. This individual
earned the Eagle Scout award when a youth and has been recognized by other adults as a
Distinguished Eagle Scout. He has served his profession with character and without bias. He has
served the youth of our country selflessly and tirelessly.
This proposed rule would force him to choose between a career that he has served with superb
dedication and fairness for all concerned and a membership and participation in an organization that
helped him develop the characteristics the judiciary and the public have admired in him as they
selected him and continue to return him to his position.
The proposed rule, if adopted, will hurt him; if he resigns his leadership position in the Boy Scouts of
America, it will hurt me that you have taken away his counsel and guidance. But most importantly, it
will hurt millions of young men and women who participate in BSA activities and depend upon
adults who insure that the program develops, grows and maintains the goals of developing fit, ethical
citizens for our country’s future.
The proposed rule is meant to be punitive. It is that, the group will have gained its purpose – it will
hurt BSA to take this individual away from us. And, in the meantime you demonstrate to the world
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what intolerance really is all about, you decide what is good without concern for who is affected.
You will not only punish adult leaders but youth as well. That is not a proud tradition for you to
build for yourselves.
353. Liberty Institute
By Jeffrey C. Mateer
General Counsel
Plano, TX
D
COMMENT:
See attached pdf.
354. Life Legal Defense
By Catherine W. Short
Legal Director
Napa, CA
D
COMMENT:
See attached pdf.
355. Jeffrey Lilly
San Francisco, CA
A
COMMENT:
I know from experience how important it is to have GLBT models growing up.
356. Daniel J. Lim
Gardena, CA
D
COMMENT:
This is a terrible proposal that is limits the freedom of association. It is biased against those who hold
to specific religious or personal opinions. It specifically targets private organization. It is simply an
attempt by a specific group to bias or manipulate judges and the appointment of judges, thereby
interfering with the just impartiality of the office.
Again, it is biased, unconstitutional, unjust, special agenda driven, divisive, discriminatory motivated
by hatred against a specific group of people, and manipulative. It should never have been proposed in
the first place.
357. D. Lim
Gardena, CA
D
COMMENT:
Please note that the following comments are in addition to comments I have already made upon this
recently.
any affiliation with Boy Scouts of America (BSA). While ensuring that the judiciary is fair and
impartial in rulings from the bench, forbidding judicial officers from refraining from associations
with a long-established and esteemed youth organization such as BSA is not a compelling interest of
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government nor is it reasonably related to a legitimate state interest. Judicial officers are capable of
fairness and impartiality notwithstanding private affiliations with a youth organization such as BSA.
For example, judges are permitted to be members of churches whose ideology, teaching, and practice
is not dissimilar to that of the BSA. It is of course the case that judges of integrity can remain
impartial and fair on the bench notwithstanding that their church teaches that the gay and lesbian
lifestyle is morally wrong. All the time they separate their personal views from their professional
duties. Accordingly, the proposed rule change is unnecessary.
358. T. Linala
San Luis Obispo, CA
A
COMMENT:
I applaud the Court for considering the issue of disallowing loopholes in CA's anti-discrimination
practices and statutes. There should be a more strict application of anti-discrimination law regarding
orientation and gender identity to protect these classes of people --along with other minorities-- from
covert or overt acts that lead to weakening perception and understanding of the issues involved
especially by non-profit youth groups. I work in the field of LGBT senior advocacy and can say from
first hand field experience our sexual minorities are being put back into the closet by a lack of
support within the State system to protect with consequences. Your court provides the opportunity for
such a ruling to help enable the people in this mission. Thanks.
359. Randolph W. Merrill Linehan
Rancho Mirage, CA
D
COMMENT:
As a 35 year member of the State Bar, Sixth Generation Californian, and coming from a family
involved in Scouting (BSA) for almost 100 years including organization of the Orange County 1953
Jamboree held at Irvine Ranch, which had state sponsorship, I am appalled that the CA Supreme
Court and one of its Judiciary Committees would even think of ending the present Protected
Categories for Non Profit Youth Organizations which we all know is this Judiciary Committee taking
a "side swipe" at BSA, an excellent organization which has promoted so much good in this state and
around the world for generations developing character and leaders including many of the members of
today's Judiciary at the State and Federal Level. Shame on you if such a negative policy were
promulgated to end any affiliation of the Judiciary with Non Profit Youth Organizations (meaning
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BSA) which this Judiciary Committee subjectively determines do not meet State Constitutional
standards. I submit that if put to a state wide vote by referendum, the conclusion will be most
definitely different than the conclusion advised by the Committee.
360. Steven Ling
Taipei City, Taiwan
AM
COMMENT:
Thank you for your steadfast contribution to the California Judiciary. I've carefully read through
your thoughtful Invitation to Comment.
It is understandable why eliminating the Military Organization Exception is being proposed
because the U.S. Military across the board no longer restricts military service by gay, lesbian, and
bisexual personnel.
As a minority, I too support diversity and tolerance, including toward viewpoints that I may not
necessarily agree. However, it's my understanding that the progressive change at BSA does not
currently represent the across the board change with all the other Nonprofit Youth Organizations;
therefore in my humble opinion, I must confess that I do not think that it is fitting at this point to
eliminate the Nonprofit Youth Organization Exception based on the progressive change of the Boy
Scouts of America (BSA).
361. Edward Litiwn
So. San Francisco, CA
D
COMMENT:
I am opposed to the proposed change. the Boys Scouts have been a long time youth organization that
has become part of the fabric of our culture. They have tried to run an organization that provides a
number of things for our young boys, including security and safety. There are reasons why they have
been singled out for special qualifications. It would be a shame for an otherwise qualified person to
be rejected for judgeship, based merely on membership in that organization. This amendment appears
to be a reaction to vociferous media reports that denigrate the marvelous benefits and influence of the
Boy Scouts organization on our young men. This proposal is merely pandering to some of those
vociferous elements.
362. Judith Little
Arcata, CA
A
COMMENT:
Either we allow justices to belong to any type of discriminatory group or we do not. Exceptions to
appease a few are hypocritical.
363. Jeffery Long
Sacramento, CA
A
COMMENT:
As a member if the California bar I was disappointed to learn that the Boy Scouts was excluded from
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this ban. Although I believe the organization does some great things for kids, I believe it could do so
without discriminating. I stopped supporting local troops years ago and will continue to do so until
the policy is changed. I would expect the Judges I appear before every day to do the same. Hopefully
such a stance might lead to a reconsideration of the unfair and discriminatory policies.
364. John Longanecker
Placerville, CA
A
COMMENT:
Discrimination is discrimination.
365. Phyllis Lopez
Long Beach, CA
D
COMMENT:
Judicial officers who are also BSA leaders are excellent role models to young men and women.
366. Marie Lothyan
Yucaipa, CA
D
COMMENT:
Freedom of association to a great organization, such as Boy Scouts of America, has nothing to do
with being or not being able to be a judge.
367. Wilna Lucitt
Grass Valley, CA
A
368. Kathryn Lui
D
COMMENT:
Just like Nurses, your personal feelings & believes should NEVER influence the care you give your
patients. Judges should be NON-JUDGEMENTAL or not be a Judge at all! Membership to ANY
organization that can influence your decision-making should be banned!
COMMENT:
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369. Hon. Roger L. Lund
Ventura, CA
Position
Comment
D
COMMENT:
I am a Superior Court Judge and a Den Leader of my son's local Cub Scout pack sponsored by my
church. I plan and execute weekly meetings and activities for boys ages 10-11 to help them grow and
develop in character and stature.
I am also an Eagle Scout, having earned that rank as a teenager. I have served for the better part of
the last 20 years in the Boy Scouts of America in various assignments in the organization, including
assistant scoutmaster, troop committee chairman, troop committee member, district commissioner
overseeing several dozen units, merit badge counselor, varsity leader, venture leader, and even
survived as chair of a pinewood derby.
I strongly oppose the proposed amendment to the judicial canon eliminating what is commonly
known as the "Boy Scout Exception" to the discrimination prohibition for judicial officers, and urge
you not to adopt it. The reasons for keeping the exception are as sound today as the day they were
enacted. Many judges throughout California, including myself, give freely of our time and talents to
volunteer with an organization we believe to help boys become men of faith, integrity and courage.
In my own circumstance, I am also a member of The Church of Jesus Christ of Latter-Day Saints
(hereafter, "the Church") in good standing. Long ago, the Church adopted the Boy Scout programs
offered to young men ages 8-18 as its official activity arm. Each local congregation typically
sponsors 2-4 Boy Scout units (a cub scout pack for boys ages 8-10, a boy scout troop for boys ages
12-18, a varsity team for boys ages 14-15, and a venture crew for boys ages 16-18) As such,
members in good standing regularly are called upon by their local congregation and regional leaders
(i.e. Bishops and Stake Presidents) to serve in various capacities in the congregation's sponsored units
or to oversee such units on a regional level. It is this religious calling in which I am serving at
present, and it is through this religious calling that I have served in all of the various positions in the
Boy Scouts of America I have heretofore held. To deprive me of serving as a member or leader in
my congregation's local boy scout units would, at least in my case, deny me the religious freedom
preserved by the Constitutions I have taken a solemn oath to uphold.
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I also wish to emphasize that in all my years of service in the Boy Scouts, without exception, I have
never been in the presence of anyone who ever discussed the policy that the committee finds so
offensive. We are focused on serving the boys in our congregations, and any friends they bring with
them.
In addition to these personal points of opposition, there are numerous other reasons for not adopting
SP 14-02. I would hope the committee understands the grave constitutional violations it would
impose by eliminating the Boy Scout Exception.
One might approach the proposal with the belief that the regulation as proposed in SP 14-02 is not
unconstitutional on its face since it merely eliminates an exception to a non-discrimination rule of
general application. However, what will likely make this regulation unconstitutional is selective
enforcement and the intent of the committee, which specifically targets the Boy Scouts. The
committee acts as if it can freely revoke judges' First Amendment rights to freedom of association
with the Boy Scouts but cannot do so with respect to religious organizations because the right to
associate with religious organizations is protected. See page 4 of the proposal: ". . . the commentary
would retain the language noting that membership in religious organizations is constitutionally
protected, but references to military and nonprofit youth organizations would be deleted."
In fact, as discussed below, both freedoms have strong protections under the First Amendment and
the mere elimination of the nonprofit youth exemption does not in any way revoke a judge's
constitutional right of association with the Boy Scouts of America, any more than eliminating the
exemption for membership in religious organizations could eliminate a judge's right to be a member
of the church, synagogue, mosque or other religious organization of his or her choice.
The committee's improper intent is further revealed by the proposed elimination of certain language
in the Advisory Committee Commentary under Canon 2.C, specifically the phrase: "Membership in
nonprofit youth organizations is not barred to accommodate individual rights of intimate association
and free expression." Thus, the committee is seeking to eliminate prior commentary expressly
recognizing judges' rights of association and expression. However, notwithstanding the change in
marriage laws, nothing has changed in the area of expressive association rights to warrant eliminating
this right or this commentary. The committee treads on thin ice and exhibits its true intentions (i.e., to
violate certain judges' rights and to engage in their own form of viewpoint discrimination) by
eliminating this language.
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Some relevant general principles of law include:
"The constitutional right of freedom of association, that is, the right of individuals to exercise as a
group those rights which they may exercise as individuals, is an implied First Amendment right,
which has been judicially derived by implication from the express guarantees of the First
Amendment. . . . The right of freedom of association is a basic or fundamental constitutional freedom
or right, derived from freedom of speech, and, like freedom of speech, is grounded on the
requirements of a democratic form of government and lies at the foundation of a free society." 16B
C.J.S. Constitutional Law sec. 986.
Freedom of association protects those associational relationships which exist "for the purpose of
exercising rights protected by the First Amendment, including speech, assembly, petition for redress
of grievances, and the exercise of religion." Cal. Civ. Prac. Civil Rights Litigation Sec. 4:22.
The right to associate protects individuals who choose to become members of any group or
organization, and who express their views by virtue of their affiliation with a particular group.
Griswold v. Connecticut (1965) 381 U.S. 479; Bohemian Club v. Fair Employment & Housing Com.
(1986) 187 Cal.App.3d 1.
The foregoing general principles have been expressly applied to judges' rights of association in the
following recent cases, most of which have clearly sustained a judge's right to associate
notwithstanding judicial regulations prohibiting the protected association:
Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (strict scrutiny standard of
review is applied to regulations of judges' associational rights).
Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) (a judicial regulation seeking to promote public
confidence by prohibiting judges' political party affiliations was content-based restriction on speech
and, as such, was subject to strict scrutiny standard of review; regulation at issue was not narrowly
tailored because recusal was a workable alternative).
Carey v. Wolnitzek, 2006 WL 2916814 (E.D.Ky. 2006) (judicial canon prohibiting partisan activities
was unconstitutional because it was not narrowly tailored to achieve compelling state interest).
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See also Sanders County Repub. Central Com. v. Bullock, 698 F.3d 741 (9th Cir. 2012) (statute
criminalizing political party endorsements of judicial candidates violated rights of association; a key
finding was that the under-inclusiveness of the regulation made it unconstitutional).
But see Bauer v. Shepard, 634 F.Supp.2d 912 (N.D.Ind. 2009) (judge challenged judicial code
section prohibiting "partisan activities"; code section found constitutional under strict scrutiny
analysis because the code allowed judges to identify with a political organization and to attend
political events, but only prohibited judges from being a political leader, holding office or making
speeches on behalf of a political organization).
I believe that SP 14-02 is clearly unconstitutional under all of the above cases to the degree that it is
interpreted to bar membership in the Boy Scouts of America, which the committee is advocating.
Such an interpretation would offend even the Bauer case above and is clearly not narrowly tailored to
achieve its alleged aim.
By barring a judge's mere membership in the Boy Scouts of America from the commentary and
canon, I believe the restriction would not withstand strict scrutiny review because of the fact that
allowing other judges to associate with "discriminatory" religions makes the regulation underinclusive, which is a primary factor in finding that it is not effective, or narrowly tailored, to achieve
its alleged purpose.
However, even if the canon limited the prohibition to judges not being "leaders" in the Boy Scouts of
America, the term "leader" is very ambiguous. Is a troop or pack committee member a "leader"? Is a
merit badge counselor a "leader" or merely a member participant? Is even a Scoutmaster a "leader" in
terms of making discretionary policy? Or is he merely implementing a program of Scouting for boys?
Or is a "leader" only someone who has policy-making discretion, such as council or national
executives of the organization? I would suggest that most adult members of the Boy Scouts of
America are not "leaders" in the sense that Central Committee Chairpersons are "leaders" of political
parties with voting or policy making discretion. As I have indicated above, any position in a boy
scout local unit is not a "leader" in this classical sense, in that the local "leaders" merely plan and
implement programs and activities for the boys in the troop. Local troop and pack leaders do not set
council or national policy.
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Eliminating the exception as proposed will in no way enhance the reputation of the California
judiciary for being fair and impartial, which is our essential function.
Again, I urge you not to adopt SP 14-02 in any fashion.
370. David Lupton
Chico, CA
D
COMMENT:
I believe the change would do harm to the diversity of the Judicial bench and in turn would harm an
organization that has taught and helped create a lot of this counties leaders from small municipalities
to national government.
371. Larry N. Lyle
San Diego, CA
A
372. P. Steven Maasz
San Diego, CA
D
COMMENT:
The onslaught of extra-political efforts to elevate homosexuality to the level of a special
characteristic requiring elevated protection from alleged discrimination is an affront to reason,
religious liberty and freedom of conscience which carries the potential to rip our country and state
apart. The notion that you can, by fiat, automatically disqualify half of Californians for eligibility to
become judges is repugnant to American Liberty and a foolish usurpation of our civil rights.
373. Lindsay Mabey
Beaumont, CA
D
COMMENT:
We will remember you at election time.
374. Paul MacBone
Mariposa, CA
A
375. Floy Daun Mackay
North Tustin, CA
D
COMMENT:
Not long ago I listened to a Federal Judge speak at a well-known university. His main premise was
that judges have agreed to the sacred responsibility of making decisions/rulings based on the
evidence as it pertains to LAW, both constitutional and state/federal. The judge, he said, must NOT
make decisions based on any personal biases or preferences. He advised us that as citizens, if we do
not like a law, it is our responsibility to work to change the law. But whatever the law is as it stands,
that law must be the basis upon which a judge rules.
To me, it is a FACT, that if this proposed change is enacted, what you are saying is that you
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CANNOT TRUST THE VERY JUDGES that have been duly appointed or elected to do exactly they
have been entrusted to do—rule according to current law and the constitution, rather than upon some
personal experience they have had earlier in their lives. You are stating that a judge who has been in
or associated with BSA cannot be trusted to perform his sworn duty. Then, what other associations a
judge has had will be of concern?
When a President of the United States selects a person to serve on the Supreme Court, all of us as
citizens expect that judge to rule according to the law and the constitution regardless of their known
political affiliation prior to their selection. Is the BSA to be of more concern to you than a political
affiliation? What ARE you thinking!
Everyone I have spoken to about C2 seems to know that this is a blatant attempt to punish/subvert the
BSA because of their stand not to allow gays to serve as leaders in the BSA. No organization of a
political, religious, atheistic, or sexual orientation should be allowed to pressure our judicial system
into subverting the First Amendment rights of our citizens—including judges.
376. Ian Mackay
Santa Ana, CA
D
COMMENT:
I strongly disagree that eliminating the exception for a judge to belong to BSA would enhance public
confidence in the impartiality of the judiciary. In fact, I would have greater confidence in a judge
who has been or is now a member of BSA because of the integrity and moral character taught,
promulgated, and exemplified by the BSA. I know this because I served for many years as a scout
leader, and know the positive influence toward good citizenship that BSA had on young men. Good
citizenship as taught by the BSA includes being impartial in our judgments of events and
relationships.
I am personally acquainted with more than one CA Superior Court judge who has been leaders in
BSA. Their character is above reproach and they have received high praise from their peer and
attorneys for their unbiased rulings. I am also acquainted with a current Federal Judge who held a
leadership position in BSA, and whose integrity is beyond question, and who was appointed with the
highest recommendations.
Most of all, I strongly oppose the proposed two amendments to Canon 2C on the Code of Judicial
Ethics on the grounds that it infringes on the First Amendment rights of a judge, and of those
outstanding young men who in the future could be called to serve as judges. California must not
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trample on anyone’s First Amendment rights, including those of judges
377. Jerry D. Mackey
Fullerton, CA
D
COMMENT:
I would like to go on record as strongly opposing this proposed change. This is in my view a very
dangerous violation of the freedom of association for judicial officers. To disallow a judge from
association with many worthwhile youth groups that may be considered "discriminatory" because of
religious or other traditional values such as the boy scouts or youth programs run by the Salvation
Army, etc., is an affront to our liberties. If only the religious exemption remains, when will it also be
challenged. It is a dangerous and slippery slope with serious chilling effects on the right of free
association.
378. Runston G. Maino
San Diego, CA
D
379. John Malki, Esq.
San Diego, CA
D
COMMENT:
A judge's disagreement with homosexuality does not affect the integrity or impartiality of the
judiciary. You are pretending the "morality" of homosexuality is a foregone conclusion, when in fact
people of high moral stature disagree with you. You are pushing a hard-leftwing agenda. Stop
cramming homosexuality down our throats. Stop the homo-juggernaut thought-police.
380. Diana Malkin
Pacific Grove, CA
A
381. James Manning
Riverside CA,
D
COMMENT:
When did the USA become the USSR and Mao's Red China? What's next, Re-education Camps? No
diversity of opinion, only a leftist orthodoxy? Is that it? No one who is a member of the Federalist
Society or who believes in natural law or who holds certain religious beliefs can be a judge, in your
view. (The religious exemption will not protect an individual who holds certain views; btw, I
thought you weren't supposed to ask prospective judges certain questions; I guess that went by the
board a long time ago.) You are anti-freedom, anti-traditional religion, anti-American.
382. Hon. Steve Mapes
San Bernardino, CA
D
COMMENT:
My name is Steve Mapes, I am a judge currently serving in San Bernardino County in the Fontana or
Valley Court. Thank you so much for taking your time to read my email and consider these
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important issues.
I am writing you to express my concerns over the deletion of the exemption to Canon 2(C) as it
relates to the Boy Scouts of America (BSA). My concern is one of a free practice of religion and that
this modification will disenfranchise both current and potential future judges who are LDS (Church
of Jesus Christ of Latter Day Saints also known as Mormons).
The LDS Church has been closely affiliated with the BSA for over 100 years. The LDS Church has
used the BSA as its activity organization for young men starting at Cub Scout age. Members of the
Church are called to serve by their Bishops (local ecclesiastical leaders). When an adult is called to
serve in the Young Men’s Organization of the Ward (local church community) they are called as both
spiritual advisors and leaders and are also enrolled as Scoutmasters, Assistant Scoutmasters, Venture
Leaders, Varsity Coaches etc. through the BSA. The LDS Church does not have a paid ministry thus
all callings are volunteer. Once a member is called to a position in the LDS Church the Ward
congregation must be asked whether or not they sustain the Bishop in this calling. Once this is done
the Bishop or one of his Counselors will lay his hands upon the person called and set them apart to
that calling. Members of the LDS Church are strongly urged not to decline a calling.
My concern for lawyers who are active LDS Members and desire to be faithful by fulfilling callings
of their Bishop to serve in the Young Men’s Organization or on the Primary Board is that by
practicing their faith they will be excluded from eligibility to apply for appointment to a judgeship.
My concern for current judges is that we will be prohibited from fulfilling callings that otherwise do
not interfere with the duties of being a judge.
Not that it matters but on a personal note I am an Eagle Scout and have served in the past as an
Assistant Scoutmaster. Moreover, my two sons are very involved in scouting. The idea that I would
not have been eligible or “qualified” to serve as a judge because of my previous Church Calling is
offensive to me. The idea that my ability to serve in a Church Calling that ministers to the youth is
offensive to me. The idea that any LDS member of the Bar who has fulfilled their callings and has
served as a BSA volunteer would be “unqualified” to serve as a Bench Officer is offensive to me.
The idea that should any youth who is LDS later become a lawyer and want to apply for a judgeship
when otherwise eligible would be required to disclose their involvement with the BSA through their
youth would become disqualified is offensive to me.
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Whether or not it is intended the effect of this modification would serve to disenfranchise LDS
members of the Bar and Bench from Judicial Service.
Thank you again for your consideration of these important issues.
383. John M. Maraldo
Watsonville, CA
D
COMMENT:
The proposed rule is an abridgment of our First Amendment right to associate for the purpose of
advocacy. To say that an organization cannot discriminate in the provision of services to the public is
not to say that a voluntary organization cannot restrict its membership in accordance with its
principles.
384. Sheri Markley
Menifee, CA
D
COMMENT:
Why would you eliminate the opportunity for young boys to interact with judges and allow the boys
to understand that even though you disagree with the law, you follow it because that is our law.
Scouting serves and benefits young boys. This is an opportunity for the judicial branch to interact
with those young boys and help them understand how our country works. Every other organization
subject to Canon 2C is an adult organization in which membership serves the interest of the member
Judge. Scouting is an exception. Adult members dedicate their time and resources for the direct
benefit of young men and women in Scouting.
The President of the United States serves as the Honorary President of the Boy Scouts of America.
Why would you impose a higher standard of restriction on Judges then is imposed on the President of
the United States.
I do not like the restrictions placed on those in our society who are gay. I understand that The Boy
Scouts of America have often been in the center of the controversy over gay rights. But how do we
change their opinions if we don't have people involved with their organization that understand the
fundamental philosophy of equality under the law? By not allowing judges to participate in a youth
organization that benefits only young men and boys (not the judges themselves - it's a lot of work
being involved in a youth organization) aren't you closing a path of education for those young men
and boys. Do not change the exception. It would be a big mistake.
385. Hon. John Martin
AM
My wife and I are Administrative Law Judges with the California Unemployment Insurance Appeals
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Hon. Denise Meyer
Glendale, CA
386. Mike Martin
Position
Comment
Board. I am the Presiding ALJ of the Inglewood Office of Appeals and my wife is an ALJ in the Los
Angeles Office of Appeals.
We are writing with respect to the proposed amendment to Canon 2C of the Code of Judicial Ethics
specifically with respect to the elimination of the exception currently allowing judges to be active in
the Boy Scouts of America (BSA).
We have no issue with the proposed elimination of the exception. However, we ask that judges like
ourselves who are current active leaders in BSA with children in BSA be allowed to continue in that
capacity until their children “age-out” of BSA on their 18th birthday.
I have served as Scoutmaster of Troop 125 in Glendale for 2 years now and was Assistant
Scoutmaster before that. Prior to joining the Troop, I served as Committee Chair for Cub Scout Pack
125 and my wife as den leader. We are currently Merit Badge Counselors in Law and Citizenship in
the Community/Citizenship in the Nation in the Troop. Our son Nick is a Life Scout in the Troop. He
is a freshman in High School. He turns 16 in November. He has been in BSA since he was in second
grade. He plans on reaching the rank of Eagle Scout.
Up to this point, we have invested a great deal of time and effort in assisting not only our son but
dozens of boys in BSA in learning the tools to help them become men and leaders. We are still in the
thick of that commitment, especially to our own son. To cut us off from continuing in our leadership
capacities at this point in our commitment, especially to him, seems abrupt and somewhat arbitrary in
terms of timing. We do not believe it will allow us to see our son through his final goal of reaching
Eagle Scout or to honor commitments we have already made to other Scouts and their families. As it
is, I am leading a group of 22 Scouts to summer camp at Camp Emerald Bay on Catalina Island this
summer from July 28 to August 2. I am not sure I could resign on August 1 while at camp and not
continue to have responsibility through the conclusion of camp. This is but one concrete example of
the practical difficulties of removing the exception for leaders like myself who have ongoing
commitments.
Once our Scout ages out, we would of course not continue in any leadership capacity. We only ask
for the ability to continue until he comes of age.
D
COMMENT:
I am opposed to the proposed judicial guidelines restricting religious freedom and freedom of
association. There are, and always have been associations which restrict members based on religion,
ethnicity, etc, such as Jewish country clubs, Black organizations, Hispanic organizations, etc. This
secular move towards political correctness is doing more to attack our freedoms and the American
way of life, than anything I have seen in my 70 years.
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This trend will erode the very foundation of our country. Please put an end to this attack on our
freedoms.
387. Peter Martin
Aliso Viejo, CA
D
388. Delphine Martinez
Whittier, CA
D
COMMENT:
This is unconstitutional. It bars freedom of association for judges.
389. Heather Martinson
Yucaipa, CA
D
COMMENT:
The many good people who serve our youth through the Boy Scouts should not be excluded from
being judges.
390. Lee Martinson
Yucaipa, CA
D
COMMENT:
The Boy Scouts of America is doing good things for boys and it would be a sad day to say a judicial
officer can't choose to affiliate with them on their own personal time.
391. Denise Massey
Redlands, CA
D
COMMENT:
I do not agree with the proposal. Many judicial officers serve as BSA Leaders, especially amount the
members of the Church of Jesus Christ of Latter-day Saints. They accept this role as a matter of
duty. The Church of Jesus Christ of Latter-day Saints, has a lay ministry and all members have a
duty to fulfill voluntary positions. These opportunities for service in these positions allow these
leaders to be exceptional role models for youth.
It is also important to note that there is no evidence that any judicial officer who belongs to the BSA
has shown bias on the basis of sexual orientation.
Prohibiting membership in BSA will decrease the idea of diversity among judicial officers. These
officers may have convictions regarding the morality of homosexual conduct, but they also have deep
convictions regarding equal justice for all regardless. To imply that these officers cannot by
impartial is intolerant and narrow-minded.
392. Jeffrey Matsen
D
COMMENT:
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Costa Mesa, CA
Position
Comment
I have been a practicing attorney for over 40 years (UCLA, 67) after having served as a Captain in
the Marine Corps. I have always strongly supported the Boy Scouts and cherish their values and
principles. Two of my sons are Eagle Scouts and our entire family (wife, seven children and 17
grandchildren) strongly support and most often participate either actively or financially in support of
the Boy Scouts. I only wish that more adults and children understood the worth or their values and
leadership development. The BSA has the right to persevere in promoting these values for the
strength of our communities and nation. Please reject the pending proposal and allow individuals the
right to the chose for themselves the core values by which they desire to live.
393. Esther McAllister
Elk Grove, CA
D
COMMENT:
This seems to me discrimination against Attorneys as well as the Boy Scouts and I'm opposed to it.
394. John McBride
Oroville, CA
D
COMMENT:
As a member of the law enforcement community myself, I know those that are asked to sit in
judgment for our legal system, have the integrity and intelligence to have no bias no matter how they
feel personally.
It is very dangerous for our society to make laws preventing individuals from exercising their own
freedoms.
395. Marian McBride
Yucaipa, CA
D
COMMENT:
In regards to SP 14-02, California Code of Judicial Ethics. I do not support this proposal. What has
happened to freedom of association in this country? How can justices be barred from a wholesome
organization as the Boy Scouts. Once again our freedoms, outlined in the Bill of Rights, are being
infringed upon.
396. Michael P McBride
Yucaipa, CA
D
COMMENT:
I strongly disagree with any interference of choice for judges to be able to participate with or in the
Boy Scouts of America. Cookie-cutter approaches to political correctness can erode the basic right of
freedom of association.
397. Robert McCauley
Richmond, CA
A
COMMENT:
Please stop discrimination against LGBT youth!
398. Susan H. McCollum
D
COMMENT:
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Santa Barbara, CA
Position
Comment
In accordance with the Invitation to Comment on the proposed amendment to Canon 2C of the Code
of Judicial Ethics, I submit this comment by email to you, the Chair of the Supreme Court Advisory
Committee on the Code of Judicial Ethics.
The proposed amendment to Canon 2C eliminates the exception for nonprofit youth organizations
that discriminate on the basis of sexual orientation. As you know, the Boy Scouts of America permits
openly gay boys to participate as scouts until age 18, but bars openly gay and lesbian adults as troop
leaders or in other leadership positions.
The Church of Jesus Christ of Latter-day Saints, sometimes erroneously referred to as the “Mormon
Church,” has a formal relationship with the Boy Scouts of America and sponsors Scouting Units in
many wards (congregations). The Church pays all or part of the fees for registering young men and
adult leaders in Scouting. The Church also pays for unit chartering. The Church provides these funds
in addition to the other budget allowances. The Church has its own Scouting Handbook which can
be viewed at https://www.lds.org/bc/content/shared/english/young-men/35814_scouthandbook_eng.pdf?lang=eng. It details the intricate relationship between the Church and the Boy
Scouts of America.
Part of the Church’s religious instruction program for boys includes their involvement in the Boy
Scouts. As part of the commitment of all members of The Church of Jesus Christ of Latter-day
Saints, each member is required to fulfill “callings” to various assignments as directed by the Bishop
of the ward (congregation). There are many callings in the Church that require a member to be
involved in the Boy Scouts of America Scouting Program. The Church requires all adult Scout
leaders to register with the Boy Scouts of America before they begin their service.
The following are a few examples of Church members required involvement with the Boy Scouts of
America (“Scouting”) from the official “Handbook 2: Administering the Church:”
• The bishop and his counselors oversee Scouting;
• Members of the Young Men presidency are generally called to serve as Scout leaders or
assistant Scout leaders;
• Assistant quorum advisers are generally called to serve as Scout leaders or assistant Scout
leaders;
• In each quorum, the bishop usually appoints the quorum president or one of his assistants in
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•
•
•
•
Comment
the priests’ quorum to serve as the youth leader of the Scouting program.
The bishopric organizes a ward Scout committee to ensure that Scouting functions properly
as a supporting activity for Aaronic Priesthood quorums.
The Primary President (woman who is the head of the children’s auxiliary) is required to
hold Scouting activities for children ages 8 through 11.
Primary Teachers of children ages 8 through 11 are responsible for planning and conducting
the Scouting activities for those children.
A High Councilor is assigned to help implement the Scouting program
In short, the Scouting program is an integral part of the Church’s training of young people. There are
many people in each ward (congregation) who, as part of their required service in the Church, must
register as a member of the Boy Scouts of America.
The proposed amendment to Canon 2C would effectively disqualify from the judiciary all members
of the Church of Jesus Christ of Latter-day Saints who have been called to a Church position which
requires involvement with the Scouting program. Thus, the proposed amendment infringes on such
judges’ First Amendment Right to freely exercise their religion.
I strongly urge the disapproval of the proposed amendment to Canon 2C.
Please contact me if you have any questions regarding this comment.
399. Mark McElrath
Orange, CA
D
This note is to express my opinion that Judges or other civic leaders should not be compelled to
dissociate themselves from the Boy Scouts of America.
The reasoning should be self-evident.
400. Mark McEwan
Oceanside, CA
D
COMMENT:
The so called government continues to take away rights guaranteed under the constitution.
Remember" you reap what you sow."
401. Michelle Orengo-McFarlane
San Francisco, CA
A
COMMENT:
Nonprofit youth organizations that receive special state tax privileges must comply with California’s
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nondiscrimination laws!
402. Bruce McIntosh
Walnut Creek, CA
D
COMMENT:
The Boy Scouts of America is a private association, and as such has associational rights guaranteed
under the First Amendment to the US Constitution to set membership requirements as it sees fit. See
Boy Scouts of America v. Dale, 530 U.S. 640 (2000); see also, Curran v. Mount Diablo Council, 17
Cal.4th 670, 952 P.2d 218, 72 Cal.Rptr.2d 410 (1998).
The presumption of the proposed rule is that the Boy Scouts of America unlawfully discriminates
when it prohibits avowed homosexuals from participation as adult members. This presumption is in
opposition to decisions of both the state and federal Supreme Courts, which have both held such a
restriction is a proper exercise of protected associational rights. Thus, the proposed rule does not
stand against discrimination, but rather discriminates against the Boy Scouts for exercising its
protected associational rights.
The proposed rule should be rejected.
403. Thomas J. McIntosh
D
COMMENT:
The proposed amendments to Canon 2C of the Code of Judicial Ethics would violate laws against
discrimination and thus would be unethical.
The position taken by the Boy Scouts of America on membership by homosexuals may be
discriminatory, but, per decision of the U.S. Supreme Court is lawful.
Thus, to adopt the proposed amendments to Canon 2C would be viewpoint discrimination and thus
discriminate against one’s point of view and not be a response to unlawful activity.
The proposed amendments to Canon 2C are not in keeping the standards of judicial conduct of the
court.
404. Scott McIntyre
Wichita, KS
D
COMMENT:
The proposed changes make broad assumptions about members of nonprofit youth organizations, and
more specifically about the BSA. The idea that membership in an organization signifies complete
agreement with the structure, public statements, and procedures of said organization eliminates any
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sense of nuance. One may decide that the merits of an organization outweigh what he or she finds
distasteful about it, and therefore worth joining. There are shades of gray. Just as those voting to
place judges in their positions should use common sense and reason rather than a single topic litmus
test.
405. James McKinnon
Tustin, CA
D
COMMENT:
The Boy Scouts of America is an institution that has done a lot of service to society and has helped
make young men into leaders and teach them valuable life skills. This organization has need of
people of high character to serve as leaders and help teach the future leaders of the nation. Judges, as
leaders in the community, should have the opportunity and choice to serve as leaders in the Boy
Scouts of America and otherwise associate with the organization. In addition, the reasoning that
judges should not participate in this organization because of possible discrimination based on sexual
orientation implicates further repercussions. Many religions do not support homosexuality and if this
proposal were to be upheld, that would pave the way for judges to proposals banning judges from
belonging to a church. I oppose this proposal.
406. Dr. Douglas A. McOmber
Carlsbad, CA
D
COMMENT:
The proposed changes to Canon 2C on the Code of Judicial Ethics are just wrong. The result would
be the opposite of the stated purpose to “enhance public confidence in the impartiality of the
judiciary.” I would not have confidence in judges' impartiality if they were biased against the BSA.
These changes also abrogate 1st Amendment rights, because a large proportion of the BSA's units are
chartered through religious organizations It is precisely because some judges are members of the
BSA that I would have more confidence them. Please leave this exception for the BSA as written.
407. David McPhie
Irvine, CA
D
COMMENT:
I write in respectful opposition to Proposal SP14-02, which seeks to eliminate certain existing
exceptions to Canon 2C of the Code of Judicial Ethics. As I explain below, the Advisory
Committee’s proposed revisions present a serious risk of undermining the integrity of and public
confidence in the impartiality of the judiciary, contrary to the laudable goals set forth in the
commentary accompanying the proposal.
As an initial matter, although the commentary to Proposal SP14-02 suggests that it might “prohibit[]
judges from being members of or playing a leadership role in the BSA [Boy Scouts of America],” the
revised rule on its face does not have any such sweeping effect. To the contrary, the proposal rightly
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retains an exception for religious organizations, and preserves a related comment regarding
organizations that are “dedicated to the preservation of religious [and] cultural values of legitimate
common interest to its members” -- an apt description of the BSA.
Nevertheless, should Proposal SP14-02 be misconstrued as absolutely barring a judge’s participation
in the BSA, it would present a serious risk of violating freedoms of religion, expression, and
association. An example may best illustrate this point. The BSA enjoys a long-standing partnership
with The Church of Jesus Christ of Latter-day Saints, which adopted Scouting as part of the activity
arm of the Church’s youth organization over 100 years ago. Leaders in these Church-sponsored
Scout troops do not volunteer; they are “called of God” to serve by invitation after prayerful
consideration by the bishopric of the local congregation (see LDS Article of Faith 5). Acceptance of
these calls is understood as a manifestation of faith. Thus, if an LDS judge were extended a calling
to serve as a Scout leader (a likely scenario, as Church members commonly serve in a variety of
callings throughout their lives), an ethical rule that barred acceptance of this calling would present an
intolerable conflict with sincerely-held religious beliefs and expression of faith.
I share the Advisory Committee’s conviction that intolerance based on sexual orientation is wrong.
However, I am concerned that Proposal SP14-02 does little to eliminate intolerance; to the contrary,
it presents a serious risk of undermining the rights of religious minorities as well as the diversity of
the bench. I therefore urge that the proposal not be adopted.
A final note: the California judiciary counts among its ranks the finest women and men this state has
to offer, and it would be a shame if these individuals were deterred from serving as leaders and role
models in an organization that, while not perfect, has nevertheless done much good for youth both
straight and gay -- instilling in them timeless values including selfless service to the needy, love of
the great outdoors, and devotion to God and country.
The opinions expressed here are entirely my own; I do not speak on behalf of my church, employer,
or any other organization.
408. S. Mildenhall
D
COMMENT:
This issue is before you due to ideological differences between two groups, both having
constitutional rights guaranteed by the Constitution of the United States. While I do have a bias
strongly to one side of this issue, I believe that no action should be taken by the committee to change
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the currently approved wording of the code as it relates to non-profit youth organizations. In effect,
what you are doing by changing the code is forcing a group of individuals, judges, to not participate
in organizations whose ideologies are guaranteed by the Constitution. The only way this issue will
be truly resolved is for the people of the United States, collectively, to amend the Constitution to take
away religious freedom. As long as the Constitution guarantees religious-based ideologies,
supporting moral standards of conduct, with the freedom to practice and believe as they want, this
issue will never be resolved. The is no need for those supportive of this code change to continue to
slowly unravel the fabric of the Constitution as currently written; recommend they “come-out” and
propose an amendment to the Constitution removing freedom of religion.
I ask this committee to please not write away the freedom of judges to participate in Scouting…or for
judges with other constitutionally protected beliefs to support their choice to participate in their
choice of non-profit youth organizations. This is no different than the code being rewritten 30 years
ago to state judges can’t participate as leaders in an LGBT non-profit youth organization because of
their non-belief in religious-based morals. Judges, or any other person with similarly held beliefs,
shouldn’t want to support or join Scouts anyway…their constitutionally protected right of belief
differs from the constitutionally protected beliefs of BSA and the majority of its members. You
cannot separate the homosexual judge from his/her deeply held convictions guaranteed by the
Constitution of the United States. No matter the amount of law you write. It is no different for a
judge wanting to participate in Scouting. He or she likely participates because it upholds
constitutionally protected ideals and beliefs they support.
It is okay for people not to accept homosexual conduct based on religious-held beliefs. Those
holding those beliefs are not telling them they can’t live how they want, but they shouldn’t force
someone to accept them when they openly go against what an organization holds as important. In
this case it does not hurt the homosexual. There are other organizations promoting similar values
with no issue regarding homosexual conduct. The organizations with issue however, don’t want to
kill homosexuals…they just want participants to uphold a protected religious-standard of belief. By
definition, the homosexual cannot meet it unless they change or stop the pattern of conduct that
doesn’t fit with the beliefs of the organization; just like I couldn’t meet the standards to be a leader of
an LGBT youth-organization. Would they want me participating while at the same time telling
everyone around me what they believe goes against God’s law? Should I try using the court system
to force my way in or force their acceptance of me? It’s absurd to let people with differing beliefs to
continue doing the same thing...unless there is a change to the Constitution and the people decide to
take away one of our most important freedoms…freedom of religion. The State of California should
not discriminate against people having religious-based constitutionally protected rights….the real
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issue. The state should allow judges the freedom to choose and expect them to make ethical
decisions when cases come before them. Their actions will speak for them. In the End, God will
judge!
Tolerance goes both ways.
Please add this to the official record of comments to NOT support the proposed amendments in
SP14-02 unless modified to keep the exemption for judges to participate in non-profit youth
organizations.
S. Mildenhall (An Honest Abe type who believes we should just do the right thing.)
409. Duane Mieliwocki
Glendale, CA
A
COMMENT:
While I completely support the reasoning for prohibiting leadership in discriminatory groups like the
BSA, it seems as if this is a fluid situation, likely to change soon into a non-discriminatory situation.
It seems as if the battle which needed to be fought here is almost over and that removing judges from
positions of example and leadership only serves to hurt the boys. The policy views of the BSA are
quite different from the views of the individual troops and the two are in no way lockstep,
particularly in California. I would suggest that California leave it up to individual judges allowing
them to use this to leverage for non discrimination when necessary and to encourage acceptance
when possible.
410. Brian R. Miller
West Sacramento, CA
A
COMMENT:
As an openly gay Eagle Scout (St. Paul, MN. 1968), I strongly agree with the proposed changes. My
grandfather and great grandfather were judges. My grandfather served as a District Court Judge in St.
Paul, Ramsey County, MN. and my great grandfather served as a Justice on the Minnesota Supreme
Court. I believe they would agree that I should be able to serve as a volunteer leader in the BSA. It
will be a strong message would be sent by a sitting judge, who also serves as a volunteer member of
the BSA, that he or she cannot serve as a BSA volunteer because the BSA discriminates against gay
people.
411. Ryan D. Miller
Riverside, CA
D
COMMENT:
SP14-02 is a dangerous proposal. On its face, it seems just because it deals with "invidious
discrimination," something rightly opposed. However, who is to judge whether the discrimination is
invidious? Ultimately, if the court can prevent a judge from participating in a group such as Boy
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Scouts of America, it should by extension, also ban participation in groups such as the National
Association of Women Judges, which discriminates against men.
I prefer freedom. Judges are instructed sufficiently that they should know whether they need to
recuse themselves.
Please do not move forward with the aforementioned proposal.
412. Leona Miner
D
COMMENT:
413. Robin Misin
Yucaipa, CA
D
414. Caleb Miskin
West Lafayette, IN
AM
COMMENT:
I believe the only change that should be made is to eliminate the military clause. The clause
concerning nonprofit youth organizations should remain in force to preserve the diversity of judges in
California. To alter would be to create partiality toward individuals opposing traditional marriage and
family life. Judges of all viewpoints on this matter should be allowed to practice equally. As they are
elected either directly or indirectly the people should decide whom to have for their judges. There is
no need to discriminate against judges of a different viewpoint.
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Furthermore, since the BSA's policies stem from religious belief the proposed change does more to
discriminate against people of faith than to accomplish any other objective.
415. Hannah Miskin
Loma Linda, CA
D
COMMENT:
·
There is no evidence that any judicial officer who belongs to BSA has exhibited bias from the
·
416. Kevin Miskin
Yucaipa, CA
D
COMMENT:
I oppose the changes to the code. Such language would bar judges with affiliation with the Boy
Scouts of America from serving on the bench. This change further weakens first amendment rights.
Judges can judge fairly even with strong opinions.
Please reject this change.
417. Lindsey Miskin
West Lafayette, IN
D
COMMENT:
By barring a judge because of his personal beliefs and affiliations you are doing exactly what you
criticize him of doing: discriminating. A judge's decisions while on the bench should be what
determines whether he is fair, not what he does in his home, family, and community.
418. Tyler Miskin
Loma Linda, CA
D
COMMENT:
·
There is no evidence that any judicial officer who belongs to BSA has exhibited bias from the
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·
419. Paula Mitchell
Upland, CA
D
COMMENT:
The Boy Scouts have a long history of service to our nation, it has always uplifted and bettered
society. The boy scouts have given young boys a chance for goal setting, adventure and character
building. They are now being singled out because of a belief that believers in traditional Christian,
Jewish, and Islamic faiths believe. If CA judges are forbidden to affiliate with the Boy Scouts then it
would be beyond hypocritical for them to be allowed to be leaders of any Islamic, Jewish, or other
traditional service group. This has gone too far.
420. Stephen A. Mitchell
Tustin, CA
D
COMMENT:
I am shocked and think it is appalling that the Committee would think it proper to take away an
individual's choice of affiliation with a private, nonprofit organization. It sets a precedent for
controlling what people are allowed to do in their private lives based on the Committee's evaluation
of the standards upon which the organization is based.
421. Michael Moniz
Yucaipa, CA
D
COMMENT:
Judges are supposed to protect a minority group like the Boy Scouts from tyranny. With judges
filtered by personal views of others in the populous, we would end up with only the judges that they
approve the of. If that ends up the case why would we need judges at all. We would get all of our
rulings from the mob. They should be ashamed.
422. Bruce Monroe
Altadena, CA
D
COMMENT:
Rules that prohibit judges from belonging to certain types of organizations are inappropriate
restrictions on individual freedom. Like other individuals, judges should be able to make their own
decisions on such matters. This is especially true for categories such as sexual orientation, when
many people believe certain types of sexual behaviors and relationships are immoral.
If the current rule is retained, the current exceptions for organizations such as the Boy Scouts, should
also be retained.
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423. Joel Montes
Position
D
Comment
COMMENT:
I Joel A. Montes, urge rejection of the proposal to amend SP14-02 to require judicial officers to
renounce or avoid any affiliation with Boy Scouts of America (BSA). While ensuring that the
judiciary is fair and impartial in rulings from the bench, forbidding judicial officers from refraining
from associations with a long-established and esteemed youth organization such as BSA is not a
compelling interest of government nor is it reasonably related to a legitimate state interest. Judicial
officers are capable of fairness and impartiality notwithstanding private affiliations with a youth
organization such as BSA. For example, judges are permitted to be members of churches whose
ideology, teaching, and practice is not dissimilar to that of the BSA. It is of course the case that
judges of integrity can remain impartial and fair on the bench notwithstanding that their church
teaches that the gay and lesbian lifestyle is morally wrong. All the time they separate their personal
views from their professional duties. Accordingly, the proposed rule change is unnecessary.
424. Michael Montoya
Long Beach, CA
A
425. Eldon Bruce Mork
Foster City, CA
D
COMMENT:
Freedom of association.
426. Flora H. Morgan
Beaumont, CA
D
COMMENT:
This is so wrong!! Isn't one of the best things a man can do while he is young is to receive his Eagle
Scout ranking. This ranking is supposed to make a better person. Why would it not make a man a
better judge.
This proposal discriminates against all men who have made a great accomplishment in his life.
There are judges who are pro-gays, why can there not be judges who are against gay marriage or that
life style. Fair is fair.
Pro-gay people look for judges who are pro-gay to pass rulings in their favor.
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427. Mr. Moser
Yucaipa, CA
D
COMMENT:
428. Steven Moshlak
Centreville, VA
D
COMMENT:
Although judges may be initially appointed, they are subject to the will of the voter. The facts are
that the Boy Scouts of America's fundamental prerequisite, is that the individual is a boy. This is no
different than requiring judges to have passed the bar, which, in general, also requires an education in
the law.
What we here, is an organization that performs not only services in the community-at-large, but
contributes to a youth's knowledge, skills and abilities.
We have seen the erosion of support for the Boy Scouts of America, first at LAUSD and through
various court proceedings.
What I have observed is the gradual take-down of what makes the United States and the State of
California exceptional, by gutting its traditions of the support of youth.
I suggest you look at the San Fernando Valley, 50 years ago, when I was in scouts and compare it to
what it looks like today. We didn't have graffiti on private and public places. We had pride in our
schools and our systems. Judges are important role models. As such, they should be responsible for
exercising their judgment on which organizations to associate themselves with and the voters shall
still have the power to rebuke those whose views are inconsistent with theirs.
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The Boy Scouts needs good role models. The Judicial Council would be doing a disservice to judges
and magistrates, by even considering this.
To take it even a step further, it would be fair to say that organizations like DeMolay, California
Masons, Scottish and York Rites and the Shriners, would be shunned, under this proposal.
429. Barry Motte
Clovis, CA
D
COMMENT:
DOUG ABENDROTH, Author of the email, suggests the following lines (keeping it civil and eventoned):
On behalf of myself and other Boy Scout Members, we urge rejection of the proposal to amend
SP14-02 to require judicial officers to renounce or avoid any affiliation with Boy Scouts of America
(BSA). While ensuring that the judiciary is fair and impartial in rulings from the bench, forbidding
judicial officers from refraining from associations with a long-established and esteemed youth
organization such as BSA is not a compelling interest of government nor is it reasonably related to a
legitimate state interest. Judicial officers are capable of fairness and impartiality notwithstanding
private affiliations with a youth organization such as BSA. For example, judges are permitted to be
members of churches whose ideology, teaching, and practice is not dissimilar to that of the BSA. It is
of course the case that judges of integrity can remain impartial and fair on the bench notwithstanding
that their church teaches that the gay and lesbian lifestyle is morally wrong. All the time they
separate their personal views from their professional duties. Accordingly, the proposed rule change is
unnecessary.
430. MoveOn.Org Petitions
Christine Allen Sacramento, CA
JC Andreatta Bakersfield, CA
Shelly Bailes Davis, CA
A
COMMENT:
I just signed a petition addressed to you titled Urge the California Advisory Committee On The Code
Of Judicial Ethics to recommend judges not belong to the Boy Scouts or other non-profits that
discriminate. The petition states:
"Dear Members Of The California Advisory Committee On The Code Of Judicial Ethics, I urge you
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to recommend that California Judges be banned from joining organizations, like the Boy Scouts,
Paul Ballard Mariposa, CA
which discriminate. Judges joining such organizations set a bad example.”
Larry Beaty Citrus Heights, CA
L. Wayne Bennett Castaic, CA
Bernice Bonillas Bakersfield, CA
Avis Boutell Moss Beach, CA
Suzanne Brooks Sacramento, CA
Kate Brotherton Lake Forest, CA
Shirin Buckman Los Angeles, CA
Bonnie Margay Burke San Diego, CA
Clark Burnett San Diego, CA
Daniel Carmin-Romack Tujunga, CA
Keith Chambers Sacramento, CA
Paul Cofrancesco San Diego, CA
Christopher Coleman Altadena, CA
Margherita R. Covino W. Sacramento, CA
Bertrand Deprez Seaside, CA
Jay Dore Rio Vista, CA
Katherine Downey Sacramento, CA
Dennis Dudley Carmichael, CA
Ann M. Eckersall Palm Desert, CA
Paul Edmonds Santa Rosa, CA
Pandora Edmonston Mariposa, CA
Claude Everett Oakland, CA
Kelly Hairgrove Santee, CA
Randy Hicks Sacramento, CA
Boyce Hinman Carmichael, CA
Nancy Howell Mission Viejo, CA
Charles Hurd Potter Valley, CA
Fred Ihler El Cajon, CA
Keith Johnson Sacramento, CA
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Denise Johnston Sunset Whitney Ranch, CA
Keen B. Keen Pittsburg, CA
Billie Klayman Los Angeles, CA
Adrienne Lauby Cotati, CA
Charles Loeffelbein Placerville, CA
Ruthie Loeffelbein Placerville, CA
Robert Mahoney Fairfax, CA
Larry Maldonado III San Diego, CA
Tom Martin Mariposa, CA
Lea Ann Mattly-Crow Bakersfield, CA
Nancy McKernan Orangevale, CA
Ayana M. McNair, PhD. San Diego, CA
Marilyn Mettler Modesto, CA.
Jerome Murphy, M.D. Pinedale, CA
Roger Nichols San Diego, CA
Noelle Fairfax, CA
James R. Ozanich Sacramento, CA
Carol Pierce San Diego, CA
Ellen Pontac Davis, CA
David W. Pritchett Sacramento, CA
Mary-Ann Rich San Francisco, CA
Judy Rickard San Jose, CA
Carol Rudisill Sierra Madre, CA
Merrie Schaller Felton, CA
Douglas Schorling Visalia, CA
Laurel Schroeder Stanford, CA
Sherry Long Beach, CA
Chris Simmons Elk Grove, CA
Dan Smith San Lorenzo, CA
Sountru Sountru San Francisco, CA
Comment
Thank you.
Please do the right thing! Thank you.
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Diana Stauffer Swansboro Country, CA
Nancy Steiner Lincoln, CA
Leslie Stewart Concord, CA
Sherry Stoll Alameda, CA
Bruce R. Sturzl, Jr. San Francisco, CA
Dorothy Thomson Sacramento, CA
Samuel Thoron San Francisco, CA
Debra Todd Citrus Heights, CA
Tran Andrew Tran Pinedale, CA
Elaine Verbarg Sacramento, CA.
Nathan Verrilli San Jose, CA
Pat Washington San Diego, CA
Reynold Watkins Pasadena, CA
Ellen Webster Richmond, CA
Kathryn White Fresno, CA
Janet Windz Grass Valley, CA
Warren Wood Palm Springs, CA
Franchezska Zamora Pasadena, CA
Scott Zimmerman San Diego, CA
431. Jennifer Renee Muir
La Canada, CA
Position
AM
Comment
COMMENT:
I am in agreement with the spirit of non-discrimination in Proposal: SP14-02 by the Supreme Court
Advisory Committee on the Code of Judicial Ethics that proposes amendments to canon 2C and
related provisions of the code. I understand that Canon 2C prohibits a judge from holding
membership in an organization that practices invidious discrimination on the basis of race, sex,
gender, religion, national origin, ethnicity, or sexual orientation, but contains exceptions for religious,
military, and nonprofit youth organizations. I further understand that the committee proposes
retaining the exception for discriminatory religious organizations. I am not in agreement with the
committee's proposal to retain the exemption for religious organizations that would include those that
are discriminatory to which judges may belong and that may lead to prejudice in rulings as well as
being inclusive of religious organizations that are not discriminatory. I firmly believe that an
important duty of the Judicial Council is to identify and eliminate bias in the courts.
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Another area of concern I have is for the Supreme Court Advisory Committee on the Code of Judicial
Ethics' definition of "gender" to mean a person’s actual sex or another person’s perception of the
person’s sex and that the definition also include the "discriminator’s” perception of the victim’s
“identity, appearance or behavior,” whether or not those factors are different from those “traditionally
associated with the [person's] sex at birth.”
If the definition of "gender" to mean a person’s actual sex or another person’s perception of the
person’s sex and that the definition also include the "discriminator’s” perception of the victim’s
“identity, appearance or behavior,” whether or not those factors are different from those “traditionally
associated with the [person's] sex at birth” where to be adopted, then, the military organization
exception may need to be retained for now as the U.S. military does, as of this date, continue to
restrict military service based on gender identity and the expression thereof. For up-to-date
information about this issue, please read the March 13, 2014 article "Panel urges end to US ban on
transgender troops" at this link - http://bigstory.ap.org/article/apnewsbreak-transgender-troop-banfaces-scrutiny .
I am in support of the Supreme Court Advisory Committee on the Code of Judicial Ethics' proposal
to eliminate the nonprofit youth organization exception.
I am in full support of the inclusion of those modifications in Proposal: SP14-02.
432. Dave Merkley
Ventura, CA
D
COMMENT:
People should be free to associate with organizations as they see fit, whether we agree with the basis
of that organization.
I was a Boy Scout growing up and support them now. I do not agree with all of their teachings or
policies, however, I feel there is a great amount of good I received and a great amount boys can
receive now from them.
The BSA policy impacts my brother and two uncles, all whom are gay. I would trust them being my
son's scout leaders, however because they are openly gay, they cannot.
I disagree with the BSA policy on Gay leadership, however, the freedom of people to associate as
they wish is the more important right of a person.
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433. Ray Mullen
Mission Viejo, CA
Position
D
Comment
COMMENT:
This bill is an outrage and my wife and I want to express our utter disgust for the contemptible PC
crowd who would try to further limit the rights of judiciary to privately express their views and
choose their affiliations.
We will provide our utmost financial support to groups fighting yet another attempt by the radical left
to silence the citizenry who refuse to be compliant to a failed liberal world-view.
434. Maureen Muratore
Rancho Cucamonga, CA
D
COMMENT:
The exception to Canon 2C, which includes religious, military, and nonprofit youth organizations,
should be retained.
Are we going to color every nonprofit youth organization with the same brush?
What will be next - no judge can be a member of a religious organization because that religious
organization does not support the homosexual agenda? The forefathers of this nation fought hard to
create a country where people could peacefully co-exist, while agreeing to disagree with one another.
Judges should have the right to belong to non-profit youth organizations of their choice, especially
ones like the Boy Scouts which provide children with excellent life lessons and experiences.
435. Ryan and Kerri Narasaki
Torrance, CA
D
COMMENT:
On behalf of myself and my wife Kerri, we urge rejection of the proposal to amend SP14-02 to
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As an Eagle Scout, this proposal causes me great concern.
Thank you,
436. Laura Needham
Aliso Viejo, CA
D
COMMENT:
It is truly astonishing that the California Supreme Court Advisory Committee is attempting to pass a
regulation that so clearly violates the Constitution of the United States and is a blatant attack on
freedom of association, freedom of religion and freedom of speech. When sworn into office, judges
swear an oath to protect the Constitution. But now, under this proposed rule change, these same
judges are not protected by that same Constitution and must choose between their career and
livelihood and being a member of the BSA or other non-profit youth organization whose values do
not align with the Committee's.
Nor does this rule change prevent the bias, or the perception of bias the Committee is attempting to
eliminate. Despite this rule change some judges will continue to hold these and other discriminatory
biases. The Committee should be ensuring judges' decisions and rulings are fair and unbiased, and
disciplining them when they are not. They should not be attempting to control the personal beliefs,
thoughts and activities of judges.
Additionally, if the Committee can ban judges from associating with a perfectly legal and widely
respected organization like BSA, what is going to stop them from banning judges from being a
member of a church, mosque or temple? Are attorneys' personal associations going to be controlled
as well? Where does it stop?
The Constitution protects all forms of association, speech, and religion; not just the type the majority
or the California Supreme Court Advisory Committee deem acceptable and no matter how
enlightened their purpose may be.
437. Rick Needham
Aliso Viejo, CA
D
COMMENT:
This action does not address the desired goal of an impartial judiciary, but does great harm to
principles we hold dear in America -- individual liberty, freedom of thought, freedom of association
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Comment
and freedom of religion. In other words, a judge is allowed to be a member of a Muslim, Jewish,
Christian, or other church that believes homosexuality is a sin and that prohibits homosexuals from
leadership positions in its church. As such, the judge could have the "bias" or "objectionable" view
on homosexuality that you are seeking to eliminate, or associate with those who do hold this view,
and still remain on the bench. So while this proposed rule change does NOT serve the stated
purpose, but it does harm the individual liberties of the judges and also harms the Boy Scouts of
America and other youth groups who believe that homosexuality is contrary to their moral beliefs
(because quality citizens such as judges cannot participate in such youth organizations). Such rules
that restrict individual liberty, freedom of thought, freedom of association and freedom of religion
show a lack of tolerance and are very dangerous. This is a slippery slope. Are lawyers next up on
these restrictions? To solve the inconsistency I mention above, is restricting a judge's or lawyer's
church affiliations next? I strongly encourage rejecting this proposed change.
438. John Nelson
Eugene, OR
A
COMMENT:
I think the proposed changes are justified because I do not believe the Scouts should have the right to
discriminate on the basis of sexual orientation for any age of person be they a scout leader or a scout
member.
I think the rule should be modified as a religious exemption rule with consequences to the religion
that is upholding participatory membership on the foundation of religious principles. For example if
the religious group is found to be discriminatory through judiciary processes then they would be
subject to a fine from a given state or municipality.
439. LYNN NELSON
Apo, AE
D
COMMENT:
Congress mandates the Army to serve as a sponsor of the BSA. As a California resident serving in
the Army in Afghanistan, I’m appalled that the California Courts would consider a move so contrary
to what Congress requires of its Armed Services. Does this mean that prior service Army and
National Guardsmen can no longer serve as judges in California? It has long been a way to serve our
community, and encouraged by our leadership. Outrageous.
440. Michael Nelson
Yucaipa, CA
D
COMMENT:
Trustworthy, Loyal, Helpful, Friendly, Courteous, Kind, Obedient, Cheerful, Thrifty, Brave, Clean,
and Reverent.
Which of these qualities is not desirable for a Judge? The Boy Scouts of America has been a force for
good in the lives of countless young men by instilling the above qualities which happen to also be the
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441. Philip Nelson
Tustin CA
Position
Comment
'scout law'. I am an eagle scout who learned to love and serve my fellow man and the environment
through my membership in the Boy Scouts of America. Some people misinterpret the BSA as being
anti homosexual simply because they continue to ban gay leaders. They have opened membership to
gay boys. They do not teach anything even remotely homophobic. There is a higher chance that a gay
leader would molest a boy in his troop than a straight one simply because the straight leader likes
girls (which aren't in the troop). If they allowed gay leaders, every time a boy got molested it would
be law suit after law suit alleging that the BSA didn't do enough to protect the boys.
Also, isn't the US Army mandated by congress to support the BSA? Would that mean that former
JAG officers would be disqualified from service in the CA judicial service? What about former
members of congress?
Also, what about former eagle scouts who are enrolled by their parents? Once an eagle, always an
eagle scout so does that mean those people will be disqualified from serving as a judge because they
listened to their parents?
This entire proposal seems aimed at making everyone who finds homosexuality to be immoral
publically denounce their beliefs for inclusion in society. You don't have to hate gay people to
believe what they are doing is wrong and having morals doesn't make one biased. Some judges
believe it’s wrong to tear down the forest or own a gun but they are trained to put their bias aside and
work inside the parameters of the law.
Legislating what a person can think or feel is first of all an impossible task and second of all
unconstitutional.
D
COMMENT:
Proposal SP14-02 states that, in the committee’s opinion, “prohibiting judges from being members of
or playing a leadership role in the BSA” would “enhance public confidence in the impartiality of the
judiciary.” This is a stark misreading of how the public will perceive this change, for at least the
following reasons:
1.
This puts a thumb on the scale of a highly controversial, political topic. No matter which
side of the Proposition 8 debate the public is on, for example, the public views the issue as political.
The public will likely view this as a highly political move, thus undermining confidence in a fair and
balanced, apolitical, judiciary.
2.
-
Describing someone as a “boy scout” in the common parlance means that person is:
“a person whose good deeds, obligingness, idealism, etc., exceed normal expectations.”
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http://dictionary.reference.com/browse/boy+scout?s=t
“a member of an organization … that promotes character, outdoor activities, good
citizenship, and service to others.”
http://www.oxforddictionaries.com/us/definition/american_english/Boy-Scout?q=boy+scout
The fact that such definitions appear in numerous dictionaries shows how widespread the view that
the BSA is a good social institution, not something to be officially shunned. Thus, such a change
would appear, in the public mind, to unfairly target a highly respected institution, known for its
patriotism and ability to teach civic duties to youth.
3.
It would cause approximately half the public (see, the results of this poll from March 2014,
showing a 43%-43% split
http://www.rasmussenreports.com/public_content/politics/general_politics/march_2014/43_favor_ga
y_marriage_43_oppose
) to consider judicial officers to be automatically biased against their moral or religious views. Even
if the public was not evenly split, it is not the role of the courts to take sides on social issues against
unpopular minority groups. Those who support the BSA (whether a majority or a minority) would
feel vulnerable to this bias in the courts.
4.
This proposal would disproportionately disqualify many religious judges if they are not
willing to renounce deeply held religious views about moral topics. Alternatively, it would
improperly coerce judges to make insincere pledges, violating their internal value systems, in order to
keep their jobs. This change would violate basic religious free exercise principles and impose, de
facto, a religious test for office in violation of the U.S. Constitution’s Article VI. It would also have
the practical effect of hounding many political conservatives from the judiciary. This will in no way
enhance the reputation of the California judiciary for being fair and impartial.
Even if you disagree with the points above, I am aware of no evidence that the Committee has
conducted public polling to determine if its “opinion” is correct on how this will be viewed by the
general public, despite the stated rationale based on public perception. Thus, this appears to be a
political decision based on the moral opinions of committee members, and not on any empirical
evidence.
For at least these reasons, I urge you _not_ to adopt SP14-02. The public will view this as polarizing
and political; approximately half the public will strongly disagree on the underlying moral question
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(see, e.g., the results of the public votes on Propositions 8 and 22). This change would cause harm to
the institutional credibility of the California Judiciary and _undermine_ the perception of
impartiality.
442. Mary Nesbitt
Santa Ana, CA
D
COMMENT:
any affiliation with Boy Scouts of America (BSA).
443. Gary Nevers
Oak Park, CA
D
COMMENT:
The principles of the Boy Scout Oath, Law and Motto reflect the strength of character and
commitment to public and private service which California judges have demonstrated for
generations. Judges are role models of integrity and courage to those who most need these examples.
A decision to spend personal time mentoring young men and boys through BSA or similar group of
one's choosing should in no way disqualify one from a life of public service. Judges are sworn to
uphold many statutes and principles with which they might have personal differences, and to respect
the rights of all kinds of people whose lives and principles diverge from his or her own. Designating
moral beliefs or permitted memberships as the current latest standard to qualify for public service is
insulting to all judges and a fearsome continuation of recent ennobling of state-required conformity
on matters of personal principles.
444. Don-Martin Nielsen
Burbank, CA
A
COMMENT:
No branch of the California State Government should allow any of its personnel to participate in
organizations that actively discriminate. I mean, come on, we are almost halfway through the second
decade of the 20th Century. Discrimination is against the law!
445. Samuel Nielson
Irvine, CA
D
COMMENT:
I see no reason why the proposed changes would enhance confidence in the judiciary's impartiality.
The current language already provides an appropriate forum for disqualification if a party feels that a
judge could not be impartial.
A problem with the proposal instead infringes on judges' right of association and religious freedom
rights. Some judicial officers may be involved with Boy Scouts due to their religious group's
sponsorship of a scouting unit. The proposed change would effectively prohibit the judges from
being involved youth groups affiliated with their churches, mosques, or synagogues if those groups
are part of a broader national non-profit organization like Boy Scouts. This is not right.
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446. Desiree Nordstrom
Tustin, CA
Position
D
Comment
COMMENT:
I do not agree with the proposed changes to Proposal SP14-02 because it will "prohibit[] judges from
being members of or playing a leadership role in the BSA..." This wording will have implications for
religious liberty and diversity on the bench.
Many religions participate with the BSA and staff its leadership. In fact, some religions have
volunteer positions within its congregation that fill leadership positions in the BSA. Limiting judges
from those positions limits a judges' religious liberty.
As a leader in the BSA organization myself and a California attorney, I foresee that this proposal
could limit my ability to be a judge (if I were to ever take that path) due to my religious commitment.
Because this issue has implications for religious liberty and diversity of the bench, I ask that this
proposal be rejected. Thank you.
447. Diane Nottingham
Crestline, CA
D
COMMENT:
I do not agree to taking away personal rights from our judiciary. They are sworn to their duty and the
men and women I know personally, have great conscience to do their duty.
This is one more step towards losing our American constitutional freedom. How far are we willing
to go?
448. Philip D. Oberhansley
Murrieta, CA
D
449. Evan Ochs
Yucaipa, CA
D
COMMENT:
We can't deny that there is a difference between men and women and that they are both vitally
important to the structure of our society.
450. Eugene Oliphant
Riverside, CA
D
COMMENT:
Do not delete 'because such membership... and religious beliefs is constitutionally protected.'
Why are you discriminating against judges based on religious belief?
Show some tolerance!
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Comment
Don't change anything!
451. Spencer Oliphant
Oceanside, CA
D
COMMENT:
I do NOT agree with the proposed changes which will be made by SP14-02. I would view these
changes as a direct attack against some of our basic freedoms as citizens of This Country and State. I
am a Proud Supporter of the BSA and believe that every citizen should have the opportunity to
support organizations such as this no matter their occupation.
452. Patricia K. Oliver
Saugus, CA
D
COMMENT:
Please do not modify the protections for Judges in Canon 2C of the Code of Judicial Ethics. The
proposed changes would undermine freedoms that are equally significant.
453. Mark Brett Olsen
Yucaipa, CA
D
COMMENT:
454. Hon. Robert O’Neill
San Diego, CA
D
COMMENT:
Whether one belongs to or is involved with the BSA is of no concern to their ability to function as a
fair and impartial judge. This is much ado about nothing.
455. Orange County Equality Coalition
By Marisa Cianciarulo
Board Member
Irvine, CA
A
COMMENT:
The Orange County Equality Coalition (“OCEC”) respectfully submits these comments regarding the
proposed elimination of the nonprofit youth organization exception contained in Canon 2C.
OCEC supports the elimination of the nonprofit youth organization exception currently contained in
Canon 2C. The participation of a judge in a nonprofit youth organization that practices invidious
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Comment
discrimination calls into question the judge’s impartiality and the judge’s commitment to equality and
fairness. Judges, who are entrusted with protecting the rights of minorities, should not be members
of youth organizations whose policies blatantly, invidiously discriminate against protected minorities.
First, discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s
official actions, are likely to call into question the judge’s integrity and impartiality. A judge’s
extrajudicial activities must therefore not be conducted in connection or affiliation with an
organization that practices invidious discrimination. It would clearly be unacceptable, for example,
for a judge to be a member of a neo-Nazi white supremacist youth organization. That the
organization is a nonprofit that serves youth would not be a reasonable basis for an exception. In the
interests of consistency and fairness, a judge’s participation in a youth organization such as the Boy
Scouts, which practices discrimination against the LGBT community but otherwise promotes positive
values, should also not qualify for an exception.
Second, discriminatory clubs are harmful because they symbolize inequality. It is laudable that
judges participate in nonprofit youth organizations, and their participation should be encouraged. A
judge’s participation in an organization that practices invidious discrimination, however, casts an
impenetrable shadow on the positive effects that such participation would otherwise have. Moreover,
there are numerous nonprofit youth organizations that do not discriminate on the basis of protected
characteristics such as sex, race, creed, color, or national or ethnic origin.
Finally, the elimination of the nonprofit youth organization exception would send a strong statement
from the profession about the unequal opportunity still encountered by minorities despite many
advances in societal views of minorities. The proposed amendment to Canon 2C would make it
improper for a judge to participate in the perpetuation of this inequality.
Thank you for considering our comments.
456. Pacific Justice Institute
By Kevin T. Snider
Chief Counsel
Sacramento, CA
D
COMMENT:
The Pacific Justice Institute details below why it does not agree with the proposed amendments of
item SP14-02 to the Code of Judicial Ethics to remove the non-profit youth organization exception to
judicial membership in an organization, and asks that it be rejected.
Introduction
The proposed amendment is misguided. Under it, three sitting justices of the U.S. Supreme Court
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Comment
could qualify for appointment as Superior Court Commissioners in this state.
Further, the amendment repackages McCarthyism. Unless members of the Bar offer resistance,
eventually something in the way of the following interrogatory will begin to surface on applications
of various sorts. “Are you now, or have you ever been, a member of, or associated with, the Boy
Scouts of America?” Those who believe that this assault on conscience will stop at judges suffer
from delusions. The premise, if not some form of the language, found in the amendment will be used
to challenge current members of the State Bar, candidates for the State Bar, and applicants to law
schools. Indeed, there remains present a real danger that this cancerous attack on freedom of
conscience will metastasize and spread to other professions, government employment, educational
opportunities, government contracts, nonprofits, and government benefits.
Assurances from the Committee and Bar notwithstanding, this amendment will not be contained with
that the Boy Scouts. It is an ominous precursor of things to come. Any associations or activities
deemed at odds with the gay lobby will be subject to state sponsored persecution.
The proposed amendment should be rejected because it deprives judges of their freedom of
expression and association.
The First Amendment of the Constitution establishes the freedoms of association, and expression for
everyone, including judges. The right to associate around a common belief also includes the right to
exclude based on that belief. These rights are protected whether the view expressed is the popular
view at the time or not. The Advisory Committee Commentary to Canon 4A of the California Code
of Judicial Ethics states a judge should not be separated from extracurricular activities and should not
become isolated from the community in which he or she lives. Judges in California and across the
country have been members and involved in youth organizations to support children since the
founding of this country. Eliminating the current exception would deprive judges of the right to
assemble, and would act to isolate them from their communities, and should only be done for the
most compelling of reasons. The Committee has not presented compelling or sufficient reasons to
deny judges their precious freedoms, and the proposed amendment should be rejected.
The proposed amendment should be rejected because it does not promote the integrity of the
judiciary.
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Comment
The Committee alleges the proposed amendment will promote the integrity of the judiciary in light of
recent development in the law and because California is the only state to allow an exception for nonprofit youth organizations. The California Code of Judicial Ethics defines integrity to mean “probity,
fairness, honesty, uprightness, and soundness of character.” The Supreme Court ruled in Boy Scouts
of America v. Dale, 530 U.S. 640 (2002), that non-profit youth organizations, such as the Boy Scouts
of America (BSA), may limit membership and participation in the organization based on their beliefs,
including a person’s sexual orientation. Unsatisfied with the decision, the Committee appears to be
attempting an end run around the Supreme Court by prohibiting judges from being members in
groups like the BSA. The fact that a judge is a member of a group, which is exercising its rights
confirmed by the Supreme Court of the United States, does not question his probity, fairness,
honesty, uprightness, or soundness of character. Quite the opposite is true. It displays integrity by
following the rule of law.
Furthermore, California being the only state with this type of exception does not question the
integrity of its judges. A State is not required to follow the majority in determining its rules and
laws. It takes more soundness of character to stand alone, and respect the views of everyone, no
matter how controversial, and displays fairness to all points of view. The proposed amendment
works at cross purposes to the promotion of judicial integrity in that it prohibits judges from
following the rule of law and standing up for the freedom of everyone to express themselves.
The proposed amendment should be rejected because the alleged reasons for the amendment indicate
a lack of impartiality by the Committee and would not enhance public confidence in impartiality of
the judiciary.
The Committee next alleges, taken in the light of a judge being a member of the BSA, that the
proposed amendment would enhance public confidence in the impartiality of the judiciary. The
California Code of Judicial Ethics defines impartiality to mean the “absence of bias or prejudice in
favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in
considering issues that may come before a judge.” The Committee emphasized the BSA decision in
May 2013 to continue lawfully exercising its rights of free expression and association by prohibiting
certain people from representing it as troop leaders. Based only on this the Committee alleges the
public confidence in the impartiality of the judiciary would be enhanced. There is no indication why
a judge being the member of an organization lawfully exercising its rights would prevent him from
being impartial. The only bias and prejudice seems to be the Committee being unable to maintain an
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Comment
open mind in considering the BSA and its rights to operate as a private organization.
The Supreme Court stated in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston,
515 U.S. 557 (1995), the law “is not free to interfere with speech for no better reason than promoting
an approved message or discouraging a favored one, however enlightened either purpose may strike
the government.” No matter how enlightened the Committee thinks it’s cause, it simply cannot
interfere with the free expression and association of judges for no better reason than it does not like
how the BSA, or any other non-profit youth organization, may make decisions. Once again the
proposed amendment would seem instead to diminish public confidence in the impartiality of the
judiciary.
The proposed amendment should be rejected and California should continue to allow judges to be
influential in benefitting and serving the interests of California children.
The Committee also states that the non-profit youth organization exception was included only for
judges who were members of the BSA, and it would be unfair to select one organization for special
treatment. However, currently Canon 2C and the Advisory Committee Commentary do not mention
BSA, and instead state that “membership in non-profit youth organizations is not barred to
accommodate individual rights of intimate association and free expression.” The Committee may
have been considering membership in the BSA as an example at the time of creating the exception,
but it also recognized the value of permitting the right of association and expression for judges by
expressly including this as the reason for the exception. If the exception was truly to allow
membership to only one group it would have been much easier to name the BSA as the exception,
rather than creating a broader category that benefits children. Organizations that are irrevocably
dedicated to benefiting and serving the interests of minors deserve a special status because the best
time to develop upstanding and productive citizens is when they are young, and before they could go
down a destructive path.
Judges have a unique and particularly useful point of view when it comes to minors developing into
upstanding and productive citizens. Judges see the product of childhoods that were allowed to go
down a destructive path rather than being given a helping hand to develop into productive members
of society. When creating this exception the Committee recognized the value of supporting our
children, but now instead of being focused on our children, the Committee seems to be out to punish
the BSA because it disagrees with its decisions, and deprive organizations dedicated to serving the
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Comment
interests of minors of a powerful and positive class of members, our judges. To continue protecting
and supporting the children of California, the proposed amendment should be rejected.
The proposed changes would be discriminatory, or at very least give appearance of impropriety.
The California Code of Judicial Ethics states, “[a] judge may not hold membership in any
organization that practices invidious discrimination on the basis of race, sex, gender, religion,
national origin, ethnicity, or sexual orientation.” If the non-profit youth organization exception is
eliminated it will deprive judges of the right of free association and will also deprive organizations
dedicated to minors from a powerful membership class, our judges. The proposed elimination of the
exception appears to be because the Committee does not agree with the BSA, and presumably groups
like them, and the beliefs that these groups follow in administering their organizations. This belief
may be rooted in a religious objection to what children are exposed to, even though the organization
is not set up as a religious organization. This proposed change would deprive our judges and these
types of organizations from their rights of expression and association, effectively discriminating
against these groups because of their religion. Since the California Courts would be practicing
invidious discrimination based on religion, judges would be prohibited from being members of the
Court, and the Courts certainly do not qualify for the religious exception to the rule.
The Advisory Committee Commentary reads, “public manifestation by a judge of the judge’s
knowing approval of invidious discrimination on any basis gives the appearance of impropriety under
Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary in
violation of Canon 2A.” Even if the discrimination of membership for non-profit youth organizations
is not included in one of the explicit classes stated in the rule, judges will still know that there is
discrimination on some basis by the Courts. An example of this type of discrimination could be an
organization, or the Courts, limiting its members, or judges, from involvement in an organization
dedicated to benefiting and serving the interests of minors, simply because a committee did not like
the way leaders were lawfully selected. By continuing to be members of the Courts, judges would be
giving approval to the discrimination, and would be giving the appearance of impropriety and would
be diminishing public confidence in the integrity and impartiality of the judiciary. The proposed
elimination of this exception will not preserve the impartiality and integrity of the judiciary, it may
actually diminish it, and the proposed amendment should be rejected.
The proposed amendment should be rejected because we cannot afford to sacrifice our children, and
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Position
Comment
the future leaders and judges of California, by depriving them access to our judges.
To put it another way, many judges have valued their time as members, scouts, and leaders in the
BSA because they know very well that supporting and serving the interests of children will make a
better country and society. Their time and work with youth organizations has prepared them and
developed their impartiality and integrity, including Supreme Court Justices Breyer, Scalia, and
Kennedy who are members of the BSA having achieved the rank of Eagle Scout. It is not worth the
cost either to our children or to the judiciary to lose the very valuable resource of our California
judges, and the proposed amendment should be rejected.
457. Dianna Packard
Carlsbad, CA
D
COMMENT:
I do not agree with the proposed changes on the Canon 2C of the code of Judicial Ethics eliminating
a Judge's right to belong to such organizations as the BSA. Passage of this amendment would serious
compromise my confidence in the entire judicial system, not enhance that confidence. The BSA is an
organization which is built upon religious and moral principles that our Country was founded upon
and have stood since the beginning of recorded history. BSA builds character in young men and its
Eagle award is still a symbol of character and leadership. It's designation of "discriminatory" has
come because some people do not agree with the moral standards if represents. This treads on the
religious rights we have to uphold the moral standards taught by the Bible. It treads on our rights to
belong to religious organizations. It treads on our rights to practice our religion. It even goes as far
as to tread on our right to worship God. If we want a godless judiciary, then pass this amendment. A
godless judiciary means no rights, for there is no longer a standard for right or wrong. I beg the
committee to reconsider and do not pass this amendment.
458. Paige
Riverside, CA
D
COMMENT:
Freedom of religion for all, including judges.
459. Craig Parker
Redlands, CA
D
COMMENT:
I strongly believe that all people in California must have equal justice under the law regardless of
individual sexual orientation. Just because a judicial officer serves the young people in his or her
community as a BSA leader, does not in any way prevent that judicial officer from holding a deep
commitment to equal justice for all Californians, including those who are homosexual. Latter-day
Saints feel it a religious duty to accept the call to volunteer to serve youth in the BSA. Currently
many Latter-day Saint men and women who serve as judicial officers in California also serve as
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460. Carolyn Parson
Yucaipa, CA
Position
Comment
leaders in the BSA. There is no evidence that any judicial officer who belongs to the BSA has
exhibited bias from the bench on the basis of sexual orientation. Prohibiting membership in the BSA
by judicial officers is contrary to the principles of freedom of association, freedom of thought, and
freedom of religious belief afforded by the California Constitution. This change to the code of
judicial ethics does violence to the ideal of viewpoint diversity that should be reflected among the
bench officers who reflect the diversity of the people who make up the communities of California.
Thus, this change will lead to less freedom, less respect, and less justice for all Californians.
D
COMMENT:
As you know, many churches sponsor Boy Scouts of America troops in an effort to organize their
children. Countless respectable men and women have served as Scout leaders, through their
churches, or through the schools. This does not preclude them from being fair and impartial judges in
our judicial system.
We should be in the business of making certain that everyone is given all of the rights to which they
are entitled. This includes judges who have attempted to direct the youth through the scouting
program.
461. Mike Parson
Temple City, CA
A
COMMENT:
I am the father of two Eagle Scouts. I am very proud of them for this accomplishment. They are
better American citizens because of it.
It is incomprehensible to me that this change in the Judicial Code is even being considered in the
United States of America. This proposed change appears to be unconstitutional on its face! Please,
you swore an oath to uphold the Constitution. Do the right thing.
462. Valerie Parsons
Folsom, CA
D
COMMENT:
Adoption of these changes would be discrimination against a group without cause and set precedence
for barring other groups without proper due process.
Belonging or affiliating with BSA, as with other organizations that have main goals unassociated
with sexual orientation is not a determiner of character.
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Comment
463. Jorge Pena
Arcadia, CA
D
464. Frederick W. Penney
Roseville, CA
D
COMMENT:
I have been an attorney in California for over 20 years. I am shocked that this clear attack on the Boy
Scouts of America by those who do not agree with them or their 100 year traditions has to get the
judiciary involved in personally backing one of the sides. Do you now have to tell all the Judicial
officers that they have to be Democrats or support this or that cause? Please stay neutral. The
judiciary is becoming more partisan and that is not what the Constitution dictates that you do. I will
not go into all the legal reasons why you should not take a side against the Boy Scouts of America as
that will be too long of an argument. I know you will say this is not about the Boy Scouts of America
but a "general rule". Stop hiding behind the curtain the community knows the real intent here.
465. Albert Perales-Rubin
Reedley, CA
D
COMMENT:
I think judges should be able to belong to the scouts if they so choose. That doesn't mean they
personally will discriminate them. I'm fed up with this politically correct attitude on the part of some
to impose their views on others. I defend gay folks but at the same time believe on the right of others
on some issues.
466. Helen Perri
Ojai, CA
A
COMMENT:
I believe that this loophole allowing participation in discriminatory nonprofit youth organizations
should be closed.
467. CS Perryess
Los Osos, CA
A
COMMENT:
Discrimination is discrimination. Period. The Boy Scouts need to grow up and realize that it's plain
wrong to discriminate against gay scouts &/or gay leaders. Maybe if our state does the right thing, the
Scouts will be forced to abandon their discriminatory practices.
468. Scott Peterson
San Diego, CA
D
COMMENT:
I would respectfully request that the Advisory Committee reconsider the need for the proposed
amendment. The current Canons, as established by the Supreme Court, appropriately protect the
public interest while at the same time maintaining the rights of judges.
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469. Coralee Petrakovitz
Elk Grove, CA
Position
D
COMMENT:
Discrimination in reverse.
Comment
470. Khristine Pettingill
Folsom, CA
D
COMMENT:
I strongly disagree with these proposed changes. I belong to the Church of Jesus Christ of latter-day
Saints, and the members of our church participate in the Boys Scouts organization as a matter of
religious duty. The Boy Scouts of America support excellent values and morals for young men and
women and officers of the board are excellent role models for young people. There is no evidence
that any judicial officer who is a member of the BSA has exhibited bias from the bench on the basis
of sexual orientation. It is an intolerant and narrow minded point of view to assume that membership
in the BSA means one cannot act impartially. I know that members of our faith are both deeply
religious and equally committed to equal justice for all, regardless of sexual orientation. These
changes would limit diversity among bench officers and exclude the members of our faith. They
move forward in one area the exact issue they attempt to correct in another, namely bias.
471. Geoffrey Phillips
San Jose, CA
D
COMMENT:
The proposed change is punitive toward a member (or prospective member) of the judiciary whom
chooses to be involved with the Boy Scouts of America (“BSA”). Many parents have used the BSA
to connect with their sons and daughters (e.g., Venturing Scouts), and many of those parents have
become actively involved in the BSA. The BSA program has successfully assisted parents in
building the character and abilities of young men and women for over one hundred years. Your
proposal will force members of the judiciary actively involved with the BSA to choose between their
employment and the best interests of their family. This proposal will also work to prevent members
of the Bar involved with the BSA from pursuing a judgeship, thereby reducing the diversity of ideas,
abilities and backgrounds in the judiciary.
Safeguards already exist where a judge can recuse himself/herself or be disqualified due to the
judge’s membership in an organization. An absolute bar is unnecessary.
472. Mark Pichaj
La Mirada, CA
D
The BSA reaches out significantly to minority and disadvantaged youth, and those involved with the
BSA should not be penalized in the interest of political correctness. Will you then require all
attorneys to similarly abide?
COMMENT:
The proposed changes to SP14-02 have two deleterious effects:
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Comment
(1) It is tantamount to dictating to religious groups, primarily Jewish and Christian denominations,
what their doctrine on human sexuality and sexual morality should be. This is a clear case of
violating the free exercise clause of the First Amendment.
(2) The reason why (1) is true is that by "allowing" an exemption for religious belief, but requiring
that ones religious beliefs be prevented from public expression (in a non-profit youth organization,
for example), is the same as dictating to a religious group which of their beliefs are valid before the
law, ethically and morally.
Thus, the effect of the proposed changes is to stifle the free exercise of religion and right of
association, as well as to demonize membership in an otherwise ethical, character-building and
popular youth organization. These changes could be seen by some as a discriminatory attack on the
above mentioned organizations, without any real ethical benefit to the integrity or impartiality of the
state judiciary. Thank you.
473. Ronald B Pierce
Brea, CA
D
COMMENT:
I object to the proposed change as discriminatory and exclusive.
474. Jay Pimentel
Alameda, CA,
D
COMMENT:
We trust our judges with important, very important, decisions. They are required to exercise good
judgment every day and we should trust them to make good judgments with respect to the
community organizations with which they affiliate outside the courtroom. Where does this end if we
head down this path of designating more and more organizations that are prohibited for a judge, in
her or his personal life? Will a judge's church membership be next? An alumnus affiliation with a
university? ...
475. Alan Plott
Yucca Valley, CA
D
COMMENT:
I would like to make know my opinion of the SP14-02. I have known many judicial officers who
have served as BSA leaders—especially among Latter-day Saints. They accept this role as a matter of
religious duty. By their BSA leadership, these judicial officers—men and women alike—provide
excellent role models for young men and women.
By prohibiting membership in BSA does violence to the ideal of viewpoint diversity among bench
officers. I am sure that many such officers have deep and reasonable convictions concerning the
morality of homosexual conduct. But these same officers retain an equally profound commitment to
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equal justice for all, regardless of individual sexual orientation. To suggest that these judicial officers
476. Sandra Portillo-Robins
El Cerrito, CA
A
COMMENT:
I think a judge needs to be an exemplar citizen and not belong to organizations that discriminate,
including youth organizations. If a judge belongs to these organizations it sends the message that it is
ok to discriminate.
477. Richard G. Preece
Vista, CA
D
COMMENT:
It was startling to me that such proposals would be considered by mature people. It made me feel
that children who fight over a toy are trying to disrupt a long peaceful community service provided
by judges in their personal lives.
478. Jessica Pretl
Irvine, CA
D
COMMENT:
479. James C. Prior
Claremont , CA
D
COMMENT:
As any individual is entitled to think for themselves it in not proper to tell any public employee
whether Governor or a janitor what he or she cannot do on their own personal time.
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480. Teela Pulliam
Position
Comment
A
COMMENT:
Please close the loophole that makes an exception for discriminatory youth organizations.
Discrimination should not be tolerated anywhere.
481. Joe Public
Coloma, CA
D
COMMENT:
Really. When did the boy scouts become a terrorist organization? It seems that anything the "gays"
feel is unjust to them, our judicial system seems to fall all over them to appease there wants. Our
country is deteriorating because of their wants. The boy scouts have been around a hell of a lot longer
than these queers. At one point in time is it going to be realized that these people are continuing to
spread their filth and continue to recruit and fool real humans.
482. Carolyn Rabe
D
COMMENT:
I oppose this rule change.
This change in rules would eventually lead to the prohibition of feminist lesbians with certain
ideological views about acceptable forms of sexual activity from becoming judges, if they joined a
non-religious organization to associate with others holding similar views. The view that sex with
males is oppressive by nature is a common theme in some schools of feminist thought.
I believe that most women holding these views would be capable of setting aside their ideological
positions and ruling according to law, in a courtroom setting.
483. J. Raft
West Hills,CA
D
COMMENT:
I believe that the authors of this have lost their minds.
Suggesting that a jurist is unable to be hold the same ethical qualities and fairness due to his
membership in with the Boys Scouts is ridiculous.
Quite the contrary, he probably has better judgment and leadership skill than someone who never
belonged to such an organization. Nonetheless if I am incorrect, can then one infer that same can be
said to supporters or members of CAIR? After all it is illegal to be a homosexual in most Muslim
countries and those countries have abysmal records regarding women's rights.
So supporting CAIR means that you hate gays and women. I just need some clarity.
I write this knowing that it will someday someone on the left will try to damage me with these words.
484. Hon. Roger D. Randall
D
COMMENT:
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Commentator
Los Osos, CA
Position
Comment
In considering the proposed modifications to the canons, the Judicial Council should consider the fact
that it has for many years advocated maximum inclusiveness in the selection of judges.
Inclusiveness, if it means anything, means that not all judges or judicial candidates will agree in
every respect with prevailing societal views on any given issue; that some judges will have families
and others none; that some judges will belong to Christian, Jewish, or Muslim religious organizations
that support youth groups , such as the Boy Scouts, or AWANA, which do not allow gay and lesbian
youth leaders, while others will belong to religious organizations that do not support such groups, or
may be individuals who are not at all religious but who hold views consistent with the present
position of the Boy Scouts or other youth groups on the issue under discussion.
To modify the canon in a manner which will interfere with a judge's ability to participate with their
own children in youth activities will clearly be deleterious to the attempt to attract and retain as
inclusive a group of individuals to the judiciary as possible. Judges and judicial candidates should
not have to choose between a career on the bench which subjects them to rules which interfere with
their child rearing choices, or resignation or a decision not to seek judicial office in order to fulfill
their most pressing obligation: to be the best mother or father possible for their children, which
clearly includes participation with their offspring in youth activities which they or their spouse
consider to be important to the development of their children.
485. Daniel Rasmussen
Irvine, CA
D
COMMENT:
This proposal would effectively disqualify individuals with strongly held religious convictions -- or -it would encourage insincere pledges in order to receive or keep the judgeship. This change would
violate basic religious free exercise principles and impose, de facto, a religious test for office in
violation of the U.S. Constitution’s Article VI. It would also have the practical effect of hounding
many political conservatives from the judiciary. This will in no way enhance the reputation of the
California judiciary for being fair and impartial.
486. Dan E Redfearn
Sacramento, CA
D
COMMENT:
Why is it that we are becoming so afraid of diversity in this nation. If people or individuals have an
opinion that is more conservative they are said to be intolerant. While we may not embrace others
views we should stand up to defend their right to have them.
This change is small minded and misses the bigger picture of the enormous good the BSofA has done
for individuals. The proposed changes disavow all of the members of the bar that support the BS of
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A.
487. William M. Reichert
Los Angeles, CA
D
COMMENT:
I fail to understand how membership or affiliation with the BSA affects the judgment of any judicial
officer. The BSA has for a century been one of the mainstays of our society and membership or
affiliation therewith should be considered a positive factor in evaluating a judicial officer.
488. Gay Reinhardt
West Sacramento, CA
D
COMMENT:
The BSA has always been a standard for young men to look up to and to aspire to achieve the highest
honor of Eagle Scout. When applying for a job or aspiring to a political office men who have
obtained their Eagle Scout award often times use this as sign of their commitment and dedication to a
task and to their allegiance to their country. Many Latter day saint boys and leaders that have
participated in the BSA do so because they not only feel it a matter of religious duty but they know
that because of the high standards of this organization that they are or can become role models, which
at this time in our society are greatly needed.
I am appalled that leaders in your positions would think that a judicial officer with high moral
standards and reasonable convictions concerning the morality of homosexual conduct, would not be
able to retain an equally profound commitment to equal justice for all, regardless of individual sexual
orientation. To suggest that these judicial officers cannot act impartially is intolerant and narrowminded.
Might I suggest that you search your own souls and ask yourselves if you are not purposing this
change out of your own inability to make judgments without partiality toward your own leanings and
prejudices towards those who have a different standard than yourselves.
I think that if this change is passed that you are doing a disservice to those justices who have made a
commitment to uphold the laws of this land, who have dedicated their lives to doing so and also to
the people of our State who appreciate these men's right to have their own beliefs and not be censored
for it. This is after all America.
489. Richard W. Rhodes
Nipomo, CA
A
COMMENT:
All just injustices of the courts of California must remain neutral, detached and impartial. There
exists a higher standard of conduct expected of all personnel who occupy the highest positions in the
judiciary and thus they may not be nor appear to be biased or prejudiced toward any individual,
group or organization. Any known bias or prejudice as spoken to in the proposed changes is
detrimental to the judiciary in total and cannot be tolerated. Evidences of inequality as evidenced by
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previous practices in United States, must not be allowed to occur again, particularly in the judiciary.
490. Scott Richert
Nevada City, CA
D
COMMENT:
I believe the proposed rule unreasonably discriminates against Judges of various religions. They will
be faced with the untenable choice of: (1) stepping down from the bar; (2) resign their post on the
non-profit organization; or, (3) compromising their religious beliefs. This is a province into which the
Judicial Council should be loath to tread. Surely there is no compelling or rational reason why what
applies to judges would not in time to applied to the entire bar. It strikes me as a huge infringement
on the very liberties which the judiciary is called to protect.
491. Daniel L. Ricks
Irvine, CA
D
COMMENT:
Crusading in the guise of tolerance and armed with the dubious justification of “recent developments
in the law,” proponents of the proposed changes to the Code of Judicial Ethics are seeking to forcibly
extricate a highly charged issue from the public, political realm in which it naturally belongs. This
lynching of the Boy Scouts of America and its members is, in the words of the proponents
themselves, “anomalous and inconsistent with other principles in the canons” and should be “of
particular concern” to anyone who espouses the shared values of the BSA and the State Bar of
California, including diversity, integrity, and respect.
Proponents of the proposed changes have failed to demonstrate how excluding judges from
participation with the BSA would enhance the impartiality of the judiciary or promote public
confidence in such impartiality. While the media and certain outspoken political groups seek to
portray the BSA as nothing more than an “anti-gay” club, this view is at odds with my own
experience with the BSA. I joined the BSA, as a youth and later as an adult, for the same reason I
joined the State Bar: in order to help others. Discussions during scouting activities, which I
participate in voluntarily without compensation, are focused not on the membership standards set by
the national organization in Texas but on service, leadership, and all of the other good things that
scouting has represented for over a century in America. In fact, in all my years of affiliation with the
BSA—ten years as a youth and the last five years as an adult volunteer—I have never met anyone
who joined because of the BSA’s policy prohibiting openly gay adult leaders.
Prohibiting judges from membership in the BSA or requiring BSA-affiliated judges to disqualify
themselves from certain cases, presumably where homosexuality is an issue, is akin to prohibiting
judges from membership in the American Civil Liberties Union (which supports protection for,
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among other things, practices that are currently illegal in the United States, including marijuana use
and possession of child pornography) or requiring ACLU-affiliated judges to disqualify themselves
from any case involving an issue on which the ACLU has a stated policy position.
It is one thing if a judge expresses personal opinions that conflict with the Code of Judicial Ethics
and could lead to questions regarding her impartiality. Ensuring that judges set aside their personal
convictions in order to apply the relevant governing law has always been, and should be, within the
domain of rules governing recusal. A potential judge’s opinions and affiliations should likewise be
subject to the scrutiny of the person or body that appoints or elects the judge. But creating a litmus
test that blindly attributes to each member of an organization all of the stated policies and views of
that organization is an offense to the case-by-case nature of the judicial system. A blanket ban on
judges’ BSA membership, which rightly would be viewed by the public as a political victory of one
ideology over another, would itself undermine the public’s confidence in an unbiased judiciary.
A colorless, opinion less, apolitical judiciary has never existed and will never exist. Judges’
association with individuals and groups that some members of society find offensive is as
unavoidable as a monolithic judiciary is undesirable. I call upon the Supreme Court to protect against
the proposed encroachment on the political process, on judicial diversity, and on individual judges’
rights of free association by rejecting the proposed changes to California’s Code of Judicial Ethics.
492. Gary Ricupero
Carmel Valley, CA
D
COMMENT:
I am writing you today in reference to the proposal before the Ethics Committee of the Supreme
Court that would ban Judges in California from holding a membership in the Boy Scouts of America
and other non-profit youth organizations.
I respectfully urge you to recommend leaving the current rules intact regarding membership in the
Boy Scouts of America, and to reject adoption of this proposed amendment.
I cannot see any reason why Judges themselves should be banned from the Boy Scouts of America or
any other organization; on the fact they are Judges. Any concerns of Judges should be addressed on a
case-by-case basis rather than an absolute ban on all Judges being members. Judges themselves are
an important part of the community and have an obligation to interact with the community. I believe
that Judges are one of our best resources to build the community and our youth organizations. It
would be unwise to ban a Judge from participating in the Boy Scouts of America where there is no
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Position
Comment
actual prejudice.
I have had firsthand knowledge of how important a Superior Court Judge can be to the community
and the Boy Scouts of America. I have had the honor to know and work closely with Judge Larry E.
Hayes for the past 8 years. Judge Hayes has served as Cubmaster of Pack 127 and Scoutmaster of
Troop 127 in Carmel Valley California for 14 years. Larry Hayes is an amazing individual and this
short letter cannot even begin to explain all he had done for hundreds of youth in our local
community. Larry E. Hayes is a leader and a mentor to his community and the Boy Scouts of
America. If the proposed amendment is adopted, it would prevent great contributors like Judge Larry
E. Hayes and others in participating in our community and making it a better place to live.
493. Hon. Craig G. Riemer
Riverside, CA
D
COMMENT:
I am Craig Riemer. I have been a Superior Court judge for over ten years, having been appointed to
the Riverside Superior Court in 2003. I write to express my opposition to that portion of the
committee’s proposal to eliminate the exemption for membership in non-profit youth organizations.
Undeniably, the proposed amendment restricts a judges’ freedom of association. As a
constitutionally protected right, that freedom should be restricted by our ethical rules only when
absolutely necessary. Necessity exists only when the goal of a proposed restriction cannot be
achieved in any less restrictive way. In this instance, necessity for the restriction does not exist,
because disclosure of membership would serve the same purpose as a prohibition of membership.
The proposed amendment also restricts a judge’s right as a parent to raise his or her children as the
judge chooses, restricts the judge’s right to fully participate in the judge’s children’s extracurricular
activities, and indirectly impairs the children’s rights of freedom of association. Judges and their
families should not be burdened with those restrictions unless the goals of the restriction cannot be
achieved through disclosure. Since disclosure would be fully effective, any restriction is unjustified.
If the committee recommends the proposed amendment despite the existence of a less restrictive but
equally effective alternative, then I have concerns about the lack of any definition of “invidious,” the
lack of a definition of “membership,” and the effective date of any amendment.
The Amendment Is Not Necessary
Judges are already subjected to restrictions on their free exercise of their constitutional right to
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Position
Comment
associate. In particular, judges are prohibited from belonging to adult organizations that are thought
to invidiously discriminate. Judges are also required to surrender some measure of their freedom of
speech. For instance, their political activities are severely limited.
In those instances, the judge’s relinquishment of full exercise of expressive freedoms or associative
freedoms affects the public activities of the judge, but do not affect the judge’s personal right to
interact with his or her family or to raise his or her child in the manner of the judge’s choosing.
By contrast, the proposed amendment would, for the first time, restrict a judge’s intimate decisions
regarding his or her children.
The younger the child, the more likely that the child’s membership in a youth organization requires
the accompanying membership by the child’s parent. (See, for instance, the BSA Tiger Cub program
for seven year olds and their parents.) Even when a parent’s actual membership is not absolutely
required, that child’s parent is generally expected to be present and to assist in supervising the
children. (For instance, few Cub Scout den leaders would appreciate parents who drop their 8- or-9year-old boys off at a meeting and then disappear for several hours.)
If a parent who is also a judge cannot be a member of a youth organization that the judge believes
would benefit his or her child, or cannot be an active participant in that organization, then the judge is
faced with two choices. The judge must either surrender his or her right to participate in the judge’s
children’s extracurricular activities, or require the child to join a different organization that in the
judge’s personal judgment as a parent (or in the child’s judgment, or both) would not be as beneficial
to the child. In short, the amendment would impair not only the judge’s personal interest in raising
his or her children, but would also tend to restrict the child’s freedom of association as well.
I personally think that these effects would be a tragedy. I am a former Cub Scout, Boy Scout, and
Explorer. Scouting had an extraordinary influence on making me the man that I am today.
Accordingly, when my only son reached the age of eight years, I enrolled him as a Cub Scout. He
stayed in Scouting until he was 18, after earning the rank of Eagle Scout. Now 28 years old, my son,
like his father, was shaped by his BSA experience. He is successful today in no small part because of
the leadership skills and the discipline that he learned as a Scout.
When my son entered Scouts, I was the only parent among the new members who was a former
scout. As a result, I became an adult leader in his Cub Scout Pack, and later his Boy Scout Troop and
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Comment
Venture Crew, serving as Den Leader, Cubmaster, Assistant Scoutmaster, and Crew Advisor. In
those positions, I was able to watch my son grow, mature, overcome challenges, and learn to lead
others. Moreover, I was able to share my love of the outdoors with my son as I lead backpacking
trips into the mountains.
If I had been a judge at that time, and if the proposed amendment had been in place, my son and I
would both have missed those experiences. I would have missed my fondest memories of my son’s
childhood; I would not be nearly as close to my son as I became on those backpacking trips; and my
son would not be the man that he is today.
This preemption of a judge’s personal parenting decisions, and this restriction on the judge’s ability
to fully participate in his or her child’s activities, is entirely unnecessary. Anything gained from
preventing judges from continuing to be members of youth organizations could also be achieved by
simply requiring the judge to disclose his or her membership in the organization.
I was one of four judges in my county who were challenged for re-election in 2012. As a result, at
the beginning of my calendar each morning, I disclose that a list of my campaign contributors is
located on the courtroom podium. (See the Advisory Committee Commentary to Canon 3.E.(2)(b).)
If I were still an adult member of the BSA, it would be a simple thing to add, “I am an adult member
of the Boy Scouts.” Any judge who wants his or her son to be a Scout, and to fully participate with
their son in that experience, would gladly say those nine words each day. It would be a small price to
pay for preserving that judge’s personal choices as a parent.
I urge you to reject an unnecessary restriction on judges’ rights as parents. At most, all that is
required is disclosure. Prohibition of membership is utterly unjustified.
The Canons Should Expressly Define “ Invidious Discrimination” and “Membership.”
As noted above, the proposed amendment would place further restrictions on a judge’s already
circumscribed exercise of his or her freedom of association. It would also impair the judge’s
personal right to raise his or her children as the judge sees fit, would prevent a judge from fully
participating in his or her child’s extracurricular activities, and would tend to restrict the judge’s
children’s rights of association as well.
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Comment
These additional restrictions should not be imposed until the Canons expressly describe the scope of
those restrictions by including definitions of two key terms.
The Canons currently prohibit membership in organizations that invidiously discriminate, but fail to
define that term. Does a single-sex youth organization invidiously discriminate? Does a youth
organization that only allows adult members of one gender or the other invidiously discriminate? If a
judge errs on the side of caution, that judge unnecessarily excludes himself or herself from full
participation in the community. That self-imposed isolation undermines rather than fosters public
confidence in the judiciary, the very justification for the amendment. On the other hand, if a judge
errs on the side of the full exercise of his or her constitutional rights, then the judge risks a letter from
the CJP.
Membership should also be defined, and should be defined in a way that distinguishes formal
membership from mere participation. For instance, to again use Boy Scouts as an example with
which I am familiar, some roles must be filled by adult members, but other functions can be
performed by non-member adults. A person does not have to be an adult member to drive Scouts to
an outing, to accompany the Scouts on a camping trip, to serve as a merit badge counselor, or to
serve on a board of review for advancement from one rank to another. The Canons should make it
clear that these forms of active participation are not within the scope of “membership.” While
formally joining an organization strongly implies an endorsement of the organization’s policies, mere
attendance or participation do not.
Judges should not have to guess when their constitutional rights and their personal rights as parents
are concerned. The exemption for youth organizations should not be eliminated until these key terms
are defined either in the Canons or the commentary.
The Effective Date of Any Amendment Should Be Delayed.
If the proposed amendment is adopted, the effective date proposed – August 1, 2014 – is far too
soon. Given that it is already the middle of April, and that any decision of this committee must be
reviewed by the Supreme Court, it is unlikely that any final decision will be made before July at the
earliest. Judges across the state are currently adult leaders in the BSA. In my own court, for
instance, one of my colleagues is the Scoutmaster of his son’s Boy Scout Troop. If those judges were
required to surrender those offices with only a few days or a few weeks of warning, it would be
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Comment
personally embarrassing to them and would impose a hardship on the organizations that they
currently lead. Forcing those leaders to resign without allowing time for replacements to be found
would not enhance public opinion of judges.
I submit that the effective date of any amendment eliminating the exemption for youth organizations
should take effect no earlier than six months from the date that the Supreme Court’s decision
becomes final.
Conclusion
For all these reasons, I submit that the proposed amendment should not be adopted. If it nevertheless
is adopted, it should not be made effective without definitions of its key terms, and without an
adequate period of time for affected judges to find replacement leaders to assume the offices that they
are forced to relinquish.
Thank you for the opportunity to comment on this proposal.
494. Bernie Ries
Atascadero, CA
D
COMMENT:
This is the United States of America and to think that the mentality of McCarthyism is still alive in
this Country and California in particular is disgusting. I am for gay rights (let people love, marry and
associate with anyone they chose) but I don't like the klu klux klan, Hell's Angel's, Muslims and their
Islam religion or their Sharia law. Maybe I don't like Catholics, Lutheran's, etc. Where do we draw
the line in what is right or wrong and by who's standard? If there is hatred, abuse, bullying, etc. we
have laws to deal with this. Laws should be enforced as they are created to protect people. The fact
that anyone wants to belong to a legal organization that some people don't approve of is wrong.
Time will create a remedy for this and many other differences. Shame on our government for
controlling and dictating to others as to what organization, membership (I remember when Elks did
not allow blacks, and how many judges are Elks). Stop this insanity and deal with the real problems
that confront us all.
495. Lawrence Riesenbach
South Pasadena, CA
A
COMMENT:
Judges should not be allowed to participate in organizations that do not abide by California's nondiscrimination laws, regardless of whether they are non-profit youth organizations or any other
organization. This loophole should be closed.
496. Michael Riley
D
COMMENT:
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Chino Hills CA
Position
Comment
The positive effects of the Boy Scouts of America goes far beyond the issue of homosexual leaders.
Values, character and citizenship are the foundations of the program, and are in short supply in
today's youth. Public opinion shifts sometimes faster than the attitudes of a specific organization.
That does not mean that the organization is no longer relevant. Sometimes change comes slowly, as it
is with the BSA, but I am confident that change will eventually come. In the meantime, please do not
penalize what is otherwise the most significantly positive youth organization in history.
497. Richard Ririe
Beaumont, CA
D
COMMENT:
•
•
•
498. Edward Robertson
Oceanside, CA
A
COMMENT:
ENDING the discriminatory double standard that allows active public servants (in this case judges)
to participate in organizations that discriminate sends the wrong message to youth and should be
abolished immediately.
499. Tom Robertson
Oroville, CA
D
COMMENT:
I believe that there are many fine individuals associated with the BSA that can still make impartial
and sound judgment from the bench. I find it hard to believe that anyone would be restricted from
being a judge because of their association with an organization that has had a great track record of
building boys into outstanding men.
500. MaryKay Rodarte
Phelan, CA
A
COMMENT:
All institutions, clubs, associations that are in business or legal nonprofit associations need to stop
discriminating against anyone. As a country, we have always been a melting pot and that goes for
race, creed and sexual orientation in today's society.
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501. Ethan Rogers
Corona del Mar, CA
D
502. Neil Rodgers
Anaheim, CA
D
COMMENT:
This is a seriously misguided effort to rid the Scouting program of valued adult leadership which
serves on the benches in the State Courts. The Scouting program does not, nor has it EVER,
discriminate against youth based on sexual orientation. The program does not permit sexual activity
by youth, regardless of orientation. The Scouting program maintains its policy across orientations and
is generally applicable to all youth. The program does not permit openly homosexual adult
leadership. It has never inquired into sexual orientation of adults and continues to refrain from doing
so. But if an adult openly advocates homosexuality, this runs contrary to the values of the Scouting
program which are protected by the First Amendment. It would be unbecoming of a judiciary to
forbid conduct and association among its members which has been accorded protection by the Dale
Court. I would respectfully urge the Committee to reject this transparent to politicize the bench.
503. Brent F. Romney
Yorba Linda, CA
D
COMMENT:
This proposed change projects the judiciary onto a very slippery slope moving it towards absurdity
and from which the judiciary will have difficulty removing itself in the future.
The issue appears to be that a judge, who serves as an adult volunteer in the Boy Scouts of America
(i.e., an assistant scout master, a merit badge counselor, a troop's adult advisory committee member,
etc.) either cannot, or will not, be fair because of some inherent, invidious bias against gays, lesbians,
etc. This assumption will exist, regardless of its unproven validity, even if the issue before the judge
has nothing to do with gay rights! A party who is gay can seek to recuse the judge, not because the
judge may be biased in the issue pending before the judge, but because the party wants to penalize
the judge for being affiliated with an organization for which the party is opposed for personal
reasons. It is easy to see where parties will improperly utilize this disclosure to further shape the
judiciary to their personal liking. After all, no judge will want to be consistently recused for reasons
that have nothing to do with his/her fairness. Hence, judges will seek to avoid this "stigma" by
conforming their personal, non-judicial conduct into a lifestyle that a select, well organized few,
believe to be proper.
Further, this is another step, orchestrated by a minority of individuals, to demonize the Boy Scouts of
America. I doubt if there is another organization in this country that has had a greater impact for
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good in the lives of youth. A person who disagrees with the principles of the BSA is free to
participate in other organizations. The difficulties the BSA has recently been confronted with could
very well undermine the entire BSA program, possibly destroying the entire program as fewer and
fewer people will be willing to participate therein. That would be an absolute shame, considering the
good the organization has accomplished for the past century. The courts should not participate in
what, I believe, is a political attempt to influence the majority.
Additionally, a judge's membership in a religious organization (ie., a church that believes the
gay/lesbian lifestyle is wrong) is a much stronger indicator that the judge may very well harbor a bias
against gays/lesbians because they believe that lifestyle is wrong . . . based on strong, life-long moral
beliefs. Yet, this proposal does nothing to require disclosure of this fact (for obvious political
reasons). If the judiciary is really concerned about this issue, then tackle the issue head-on. The
proposal should be to require judges to disclose their religious affiliation to all parties prior to their
presiding over any issue before them!! If the judiciary really has a legitimate concern regarding this
issue, and not just a political concern, then the proposal should address the real, underlying issue.
But, I believe it is obvious that those behind this proposal realize that would be a losing battle. This
proposal, I believe, is a disingenuous attempt to impact the independence of the judiciary based on
political motives of a few. If the judiciary feels this issue is real, then address the real, underlying
problem of religion. Don't allow the BSA to be used as a "scapegoat."
504. Maurice Roos
Sacramento, CA
D
505. Hon. Glade F. Roper (Retired)
Porterville, CA
D
COMMENT:
This whole proposal is obviously designed to persecute the Boy Scouts for standing by their ideals on
what is wholesome behavior and role models for boys. All major religions believe that humans were
made by God who has set the rules for human behavior. Who are you to say we know better? And,
worse, why do you want to limit judges and others who believe in obeying a major precept of their
faith. That, it seems to me, is a blatant discrimination against people of faith. Obviously I think this
proposal should be soundly rejected. The existing rules are entirely adequate to take care of any
perceived problem arising on an individual case.
.
COMMENT:
This proposal will have very little effect on judicial ethics and will not promote an independent, fair
and impartial judiciary. Rather, it will advance a particular moral view that has not been completely
achieved through the legislative or judicial process. Using an undemocratic regulatory device to
remove all judges who do not agree with a particular moral perspective will have a significant
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negative impact on the public’s perception of the meaning of “judicial ethics.”
This proposal has very little to do with public perception, confidence in or the integrity of the
judiciary. I have never heard of a litigant who felt that a judge belonging to a nonprofit youth
organization decreased the integrity of the judiciary. Certainly there may be some, and the argument
for adopting this proposal that has been made in the past is that some litigants may feel
uncomfortable appearing before a judge that belongs to such an organization. But the goal of
creating a judiciary that will make all litigants feel comfortable is impossible to attain. How can a
child molester feel comfortable appearing before me, knowing that I have children and
grandchildren? How can a burglar feel comfortable appearing before me knowing that I own a
house?
The idea that a judge cannot be fair and impartial because of a personally held moral
construct or some other characteristic demonstrates a misunderstanding of the nature of judging.
During more than 25 years on the bench, I have had to make many decisions with which I did not
agree, but was constrained to do so by the law. Every judge has. The argument that has been
bantered about regarding this subject for 25 years is that a litigant who engages in homosexuality
would not feel comfortable appearing before a judge who participates in the Boy Scouts. This
argument is fallacious, and is certainly not a universally held perception. The people that I have
discussed this with believe quite the opposite, that membership in a nonprofit youth organization that
encourages young people to develop strong moral values, hike, camp, increase their knowledge and
develop skills is desirable for judges. The idea that it somehow impairs or weakens the quality or
integrity of the judiciary is preposterous to them.
A similar argument was proffered in the federal courts during the trial of the validity of
Proposition 8. The proponents of Proposition 8 attempted to remove the trial judge because of his
sexual practices. The Chief Judge of the district rejected the attempt, holding that there was no
reason why the trial judge could not be fair and impartial. Many proponents of the proposition felt
“uncomfortable” having him decide the case, but the attempt to remove the judge because of his
personal moral traits was rejected. The proponents of this change are making the same argument
here, except even more extreme. There is absolutely no proof that judges who participate in the Boy
Scouts have any personal animosity toward any group or that they would treat them any differently
than anyone else. Many simply want to assist boys who want to go camping, or lend their expertise
to helping them earn the Law merit badge. This argument by the proponents of the proposal should
be rejected.
If a man married to a woman is sued by a transgender plaintiff for sexual harassment and the
case is assigned to a transgender judge, he might well feel insecure about that judge hearing the case.
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Should he be able to remove the judge on that basis? The answer has to be no, or our whole judicial
system falls apart. It is impossible, and undesirable, to have a judge that walks in lockstep with every
litigant. We have to have faith that judges will comply with the law, regardless of their personal
beliefs. The argument that a judge’s personal moral beliefs cause lack of confidence or integrity in
the judiciary is specious. If a judge cannot set aside his or her personal moral beliefs, whatever they
may be, and rule in accordance with the law, that judge has no business being a judge. There are
safeguards in the system, including appeals and the Commission on Judicial Performance, to make
sure judges are not imposing their personal moral values in their decisions instead of following the
law. California has additional protection for the litigants not present in the federal judicial system.
Any litigant feeling “uncomfortable” with the judge has the option of either filing a motion to attempt
to disqualify the judge from hearing their case for cause, or filing a preemptory challenge to remove
the judge from their case.
The committee is correct in stating that the moral values of society are changing. The
question here is whether imposing associational restrictions on the judiciary should be an engine in
forcing such a change. I submit that it should not. That role has never been the intended role of the
judiciary from the foundation of this country.
It is also important to note that Canon 2C only prohibits “membership in any organization that
practices invidious discrimination.” The United State Supreme Court ruled in Boy Scouts of
America et al. v. Dale, 530 U.S. 640 (2000), that the Boy Scouts do not practice invidious
discrimination. “We are not, as we must not be, guided by our views of whether the Boy Scouts'
teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a
tenet of an organization's expression does not justify the State's effort to compel the organization to
accept members where such acceptance would derogate from the organization's expressive message.
While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to
interfere with speech for no better reason than promoting an approved message or discouraging a
disfavored one, however enlightened either purpose may strike the government.”
There are those who do not agree with the moral tenets of the Boy Scouts. They are free not
to join or associate with them. There may be those who do not feel comfortable appearing before a
judge who participates in the Boy Scouts. They are free to disqualify that judge from hearing their
cases, without even stating the reason. They should neither be able to force a change in the moral
tenants of the Boy Scouts, nor prohibit a judge who chooses to associate with the Boy Scouts from
being a judge.
A different issue would be presented if a judge belonged to an organization that actively
sought out a group to attack, denigrate or abuse. That is not the situation here. Search the Boy
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Scouts’ literature, attend their meetings. You will find nothing even remotely suggesting that anyone
should actively disparage or harm anyone in any way. Among the basic laws of the organization are
“helpful, friendly, courteous, kind.” The boys are taught to be courteous and kind to everyone. They
are a bunch of boys and men who want the boys to grow up with strong moral values, camp, hike,
earn merit badges, learn many different skills and have fun in the process. They have a strong belief
in a moral standard that has been accepted for centuries in this country. Anyone else is free to
believe differently.
If a judge refuses to follow the law, rules or decides based on the legal sexual activity of a
litigant or otherwise commits actual misconduct, then by all means discipline the judge. But to say
that the qualifications for being a judge include only holding those moral values that are currently in
vogue because some unknown, hypothetical litigants might someday feel insecure appearing before
the judge is frightening, Orwellian.
Among the values that are repeatedly expressed regarding the judiciary today are “tolerance”
and “diversity.” This proposal is the antithesis of both. How can we pretend to advocate tolerance
when we are so intolerant of a moral value privately held by judges? How can we claim to advocate
diversity when we specifically target one group and excise them from the judiciary based only on
their private, moral beliefs? I would hope that in this society tolerance, acceptance and diversity
mean more than, “You must believe as I do.” Again, it is extremely important to understand that this
proposal is not targeted at any judicial behavior. It is entirely based on the potential, theoretical
“discomfort” of hypothetical litigants, and the unsubstantiated premise that judges belonging to the
Boy Scouts lessens public confidence in the court system. I have seen no study that indicates this to
be true, and I do not believe that there is one. As I said, certainly some people would have a problem
with judges who participate with the Boy Scouts hearing their cases, but they have an absolute
protection from it.
I think it important to note that I am not associated with the Boy Scouts, so this decision will
not affect me personally. Nevertheless, the proponents of this change seek to set a dangerous
precedent. If they succeed, what issue is next? Should judges be prohibited from belonging to any
group that advocates a moral stance on any issue?
Suppose a judge volunteers time at the local children’s’ hospital rocking premature babies to
comfort them. Someone accused of abusing a small child might feel “uncomfortable” having that
judge preside over their case. Should that judge be removed from office? Is it not enough that the
defendant has the right to disqualify the judge from hearing the case? Does participating in that
activity degrade the confidence of the public in the judiciary?
I suppose one could conceive innumerable scenarios that would involve a judge doing
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something that would make potential litigants feel “uncomfortable,” but I submit that once we start
down that road, there is no end. I dispute the allegation that the public has lost faith and confidence
in the judiciary because some judges participate with the Boy Scouts. I think it is fallacious
argument submitted only to advance one emerging moral stance, and adopting it to control the
personal associational decisions of the judiciary is wrong and will, in fact, demean the judiciary in
the eyes of the public.
I urge the Court not to adopt this proposed change.
506. Fred Rosenblum
Oakland, CA
A
507. Steven Ross
Pasadena, CA
A
COMMENT:
I am fully in support of the proposed change to remove the exemption for non-profit youth groups.
Discrimination is discrimination regardless of the organization. It is surprising that California would
be that last of the participating states to eliminate such an exemption rather than the first.
508. Tim Ross
Bakersfield, CA
A
COMMENT:
I agree with the proposed changes as written.
509. Law Office of Frank L. Rowley
By Frank L. Rowley
Attorney at Law
Loomis, CA
D
COMMENT:
This proposal is one step beyond reasonable. The Boy Scouts of America are not a subversive
organization and should not be treated as a threat to the American Justice System. Some of the finest
Judges I have known were involved with the BSA. Further, as attorneys, we have enough PR
problems with the public without increasing the dislike level any higher through an act such as this. I
was in the BSA when I was 14 years old am I now disqualified to be a part of the California Bar?
510. Kurt S. Rowley
Redlands, CA
D
COMMENT:
This proposal imposes a litmus test that will exclude well-qualified, impartial judges.
Many judicial officers serve as BSA leaders—especially among members of The Church of Jesus
Christ of Latter-day Saints, who accept this role as a matter of religious duty. I am not aware of any
case in which a judge who belongs to BSA has been prejudiced against a litigant on the basis of
sexual orientation.
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511. Joel Russell
Oxnard, CA
Position
Comment
D
COMMENT:
Approval of this clause will only increase distrust and actual bias in the state's judicial system.
The purpose is to limit membership in the judiciary to people who agree with a specific agenda -- in
this case, the homosexual agenda. Right of association is constitutionally guaranteed, just like
freedom of religion. The proposed language is hypocritical, pretending to be neutral and inclusive
while in fact pushing a political and social agenda. Boy Scouts of America is a great organization that
encourages boys to be honest, courteous, helpful, reverent and clean. The proposal is an attack on
those values. The proposed changes show hostility for a pluralistic, multicultural society because it's
intolerant of differing views on how a boy's organization should be run.
512. Thomas A. Russell
Newport Beach, CA
D
COMMENT:
As an attorney with 30 years' experience, an Eagle Scout and long-term volunteer adult leader in the
Boy Scouts of America, I strongly OPPOSE the proposed amendments to canon 2C and related
provisions of the code.
When Judge Walker decided the Proposition 8 case the public was told his personal sexual
orientation had no effect on his ability to judge gay marriage fairly. Knowing as I do that judges are
occasionally called upon to confront and set aside personal convictions when deciding cases, I
believe that to be true.
The proposed changes to canon 2C address a concern even farther removed from the appearance of
partiality: volunteers' positions on a Scouting membership policy that produced sharp divisions. One
cannot fairly assume Scouting's volunteers support discrimination.
This proposal is a slippery slope towards unreasonableness and unconstitutionality. It should not be
adopted.
513. Marcy Rustad
Carmel, CA
D
COMMENT:
I want to support the letter submitted below by Judge Larry E. Hayes. He is a fair judge that has
helped to settle very important cases here in Monterey County. He is fair and unbiased and his
participation in Boy Scouts and other organizations do not influence his ability to be a fair and
impartial judge. The most important leaders and role models in our community should not be
prohibited from providing leadership in any organization within their communities. They should be
able to be active in all organizations that help to build strong communities, especially, those who
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address the needs of our youth. Participation does not mean that everyone must agree with or follow
every opinion of its top leadership. As a progressive thinking family we did participate in BSA
troops to provide our son with the best possible upbringing. Judge Hayes has been a very important
part of our son’s life and has been a role model, not only for him, but for all the boys and the
community as a whole. We did not agree with the BSA’s anti-gay stand taken by some of its top
leaders, however, the benefits far outweigh this position that the boys are not taught or exposed to.
Actually, the local troop leadership teach acceptance, and embracing everyone’s differences, helping
young boys as they grow into men. What other organizations for boys/young men educate on
becoming responsible, morally strong, and service oriented adults. Organizations change from within,
and it’s essential to have strong leaders from our community to help this and other organization find
their futures.
Judges must be able to be involved in their communities. They cannot pass judgement on the
community from an ivory tower. Are you going to tell judges they can’t go to church because their
teachings might be considered morally unacceptable to others. That would be the next step if the
proposed amendment regarding the Boy Scouts of America is adopted.
See row #250 for the Hayes comment.
514. Patricia Saleh
Thousand Palms, CA
D
COMMENT:
Judges are supposed to be trained in objectivity. No matter what their spiritual or religious beliefs
they should be able to distinguish between church and state. To eliminate anyone who is affiliated
with the Boy Scouts of America from serving as a justice is complete overkill.
515. Robert Sallander
Danville, CA
D
COMMENT:
The sponsors of the proposed change seem to believe that the Boy Scouts of America is an
organization that promotes "invidious discrimination." I have been a Boy Scout adult leader for more
than 20 years and believe this characterization of the BSA is wrong. Its main purposes are to promote
citizenship and good character. As leaders in their communities, Judges should not be prohibited
from participation in organizations that promote duty to God and Country, and teach youth to be
trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and
reverent. If the Court adopts the proposed change, it should also make clear that the BSA is does not
promote "invidious" discrimination.
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516. Hon. Julia Kelety
Hon. Jeffrey Bostwick
Hon. Yvonne Campos
Hon. David Gill
Hon. Albert Harutunian
Judges of the San Diego Superior Court
Position
Comment
D
COMMENT:
The following is submitted in response to INVITATION TO COMMENT SP14-02 from the
Supreme Court Advisory Committee on the Code of Judicial Ethics (hereinafter “Committee”) with
regard to a proposed change to Canon 2C of the Code of Judicial Ethics (hereinafter “Proposal”). The
change would modify the current policy by prohibiting judges from serving as adult members of
nonprofit youth organizations that have policies that discriminate on the basis of race, sex, gender,
religion, national origin, ethnicity, or sexual orientation. The proposed change would not modify the
exemption for religious organizations that practice discriminatory policies.
Although the proposed change may have an impact on other nonprofit youth organizations (e.g. Girl
Scouts, which bans male youth members), this comment focuses on the effect of the change on
judges who are adult members of the Boy Scouts of America (“BSA”).
I. The Proposal Would Have a Significant Impact on the Private Activities of California Judges.
The proposed prohibition against judges serving as adult volunteers for BSA would not be a matter of
minor inconvenience for the affected judges. The San Diego bench includes highly respected judges
who have served as adult volunteers for BSA for decades. It includes judges who volunteer in order
to support their children in their activities. It includes judges who have served as part of their church
activities. It also includes judges who do not currently serve as adult volunteers, but who have been
Boy Scouts themselves or who have volunteered as adults in the past.
The currently-serving volunteers have made ongoing commitments to BSA and to the children it
serves. For example, a San Diego judge serving as Troop Chairperson for a local Troop has made a
commitment to serve in that role for calendar year 2014. Another judge has committed to lead a
national training seminar for BSA this summer. Others have made a tacit commitment to their own
children to support them in their desire to participate in BSA. For those judges who take their service
commitments seriously, it is distressing to consider walking away from such responsibilities and
commitments.
The withdrawal of judges from adult leadership may cause some BSA units to close for lack of adult
leadership. Some Troops and Packs have very few available adults to serve. The loss of a single
reliable adult in a leadership positions may require some units to shut down.
Further, the judges who serve as adult volunteers do so because they have firmly-held beliefs about
the value of the Boy Scouts of America. With or without a ban on adult gay leaders, there is no
organization that comes close to BSA in providing opportunities, activities, public service,
leadership, outdoor skills, STEM learning, and safe fun and development for children of Scout age.
Whether the judges who are adult leaders agree or disagree with the current policy, they are united in
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their sincere desire to support such a worthy organization.
Thus, the relevant question is whether there is a demonstrable need for the Proposal, such that
California judges should be directed to step aside from these commitments and beliefs. 2
II. The Committee has Not Cited Any Evidence that Would Support a Change in Policy.
The Committee’s justification for the proposed change is set forth in two statements in its proposal
(at page 4):
1. “In the committee’s view, eliminating the exception would promote the integrity of the judiciary.”
2. “[T]he committee agreed that eliminating the exception would enhance public confidence in the
impartiality of the judiciary.”
Notably, the Committee does not cite a single survey, a single complaint about the impartiality of any
judge, or even a bare anecdote in support of its “view” and “agreement.” It offers no empirical
evidence of any kind, much less any substantial evidence that would justify the impact of the
Proposal on the private lives of judges.
If the Committee were to seek such evidence, it is highly likely that actual empirical evidence would
demonstrate that although many in the public (and in BSA) disagree with one non-programmatic
policy of BSA (namely the current ban on homosexual leaders), the public generally has a very high
regard for Boy Scouts of America, its youth, and the adults who volunteer to help them. The public is
well-aware of the community service by BSA and its youth leadership opportunities. There are
frequent laudatory local and national news reports about the outstanding accomplishments of Scouts.
Over a million children attend Scout camps every summer. One hundred and ninety-one members of
the 113th Congress participated in scouting either as a youth or as an adult. The BSA national
organization is run by highly respected corporate and business leaders. Further, it is very likely that
the public is aware that the current BSA policy is in transition and is not supported by many who
serve in BSA.
Contrary to the “view” and “agreement” of the Committee, it is the view and agreement of the
undersigned that the public would consider participation in BSA to be a positive factor overall in
evaluating the perceived impartiality and integrity of any individual judge. The Committee cannot
merely assume that the public would be concerned about partiality or lack of integrity as to a judge
who is an adult BSA leader, any more than it can assume that the public would have such concerns
about a judge who is a member of a political party (whose national platform may include
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discriminatory provisions) or a particular religion (which may include discriminatory beliefs).
In considering the necessity of barring judges from serving in BSA, the Committee would do well to
consider the ruling of Judge Ware of the United States District Court in Perry v. Schwarzenegger,
No. C 09-02292 JW (June 14, 2011). In his order denying a motion to vacate Judge Vaughn’s
judgment on Proposition 8, Judge Ware ruled that the fact that Judge Vaughn was involved in a
same-sex relationship was not a basis for disqualifying him from hearing the challenge to Proposition
8. Under a federal statute which required disqualification “in any proceeding in which his impartiality
might reasonably be questioned,” Judge Ware stated:
“The test for creation of apparent bias sufficient to require dismissal under [the statute] is an
objective one: ‘whether a reasonable person with knowledge of all the facts would conclude that the
judge’s impartiality might reasonably be questioned.’” . . . . In this context, the “reasonable person”
is not someone who is “hypersensitive or unduly suspicious,” but rather a 3
“well-informed, thoughtful observer” who “understand[s] all the relevant facts” and “has examined
the record and law.” . . . . This standard does not mandate recusal upon the mere “unsubstantiated
suspicion of personal bias or prejudice.” In addition, the Court recognizes that a fact is not
necessarily a basis for questioning a judge’s impartiality merely because that fact might lead a
segment of the public to question the judge’s impartiality. Reasonableness is not determined on the
basis of what a particular group of individuals may think, nor even on the basis of what a majority of
individuals in a group believe to be the case.”
See Order Denying Motion to Vacate Judgment, supra, pages 13-15 (citations omitted)
Judge Ware further noted that it is presumed that federal judges dispatch their duties with
impartiality, and that “[t]o assume otherwise is to engage in speculation about a judge’s motives and
desires on the basis of an unsubstantiated suspicion that the judge is personally biased or prejudiced.
Mere speculation of that nature does not trigger the [federal] recusal requirements . . . . Id.
By analogy, absent any showing to the contrary, it is presumed that California judges will properly
execute their duties, regardless of their politics, their religion, the circumstances of their personal
lives, or the youth activities they choose to support. Further, well-informed, thoughtful members of
the public would have no basis to conclude that judges who volunteer for BSA would fail to fully
satisfy their duties of impartiality and integrity, either individually or collectively. Such members of
the public would acknowledge that Scouting is highly regarded in every respect but one. They would
understand that BSA is struggling to adjust to the rapidly-changing social, political and cultural
landscape, as are many respected institutions. They would recognize that less than a year ago, BSA
made a major change in their policy to allow participation of gay youth, and that many observers are
confident that BSA will complete the change and allow gay leaders in the not-too-distant future. As
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to certain individual judges, well-informed members of the public would recognize that such judges
have tirelessly and vocally advocated within BSA for the desired change in policy and have long
been fully committed to equal rights for all.
If the Committee feels that such is not the case, and that members of the public have reason to be
concerned about partiality and integrity of California judges who serve in BSA, it is incumbent upon
the Committee to justify its Proposal with actual evidence, not merely its own unsubstantiated “view”
on the matter.
The Committee should table the proposed change, so that it can commission a comprehensive survey
on public attitudes about perceived partiality or lack of integrity among judges who are adult
members of various youth organizations. The survey should also incorporate attitudes about judges
who are members of certain political parties and religious organizations. Only then will it have the
necessary empirical evidence to enable it to act in a principled fashion.
III. The Committee Fails to Distinguish Adult Membership in BSA from Protected Membership in
Other Institutions.
The Committee does not propose a change to the current exemption for religious organizations. It
explains: “Under the committee’s proposal, the commentary would retain the language noting that
membership in religious organizations is constitutionally protected.” 4
Certainly there is Constitutional protection for a judge’s free exercise of religion. However, there is
also Constitutional protection for BSA’s freedom of expression, as set forth in BSA’s current policy.
In Boy Scouts of America vs. Dale, 530 U.S. 640 (2000), the United States Supreme Court struck
down a state law that would have had the effect of compelling BSA to accept gay adult members,
because the First Amendment right to free expression protected the policy.
The right to freedoms of association, expression and religion have complicated legal histories and
require careful and sophisticated legal analysis. Here, the Committee has not engaged in any legal
analysis of the Constitutional implications of the proposal. It is incumbent on the Committee to
analyze and explain the legal justification for distinguishing between judges’ membership in
discriminatory religious organizations; in discriminatory political organizations; and in
discriminatory youth organizations. Without well-reasoned legal analysis, together with wellsupported empirical data, the proposed rule change does not appear to be based on any real and
tangible need for change.
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IV. If the Change is Implemented as Proposed, it Should Only Apply to Judges Elected or Appointed
after the Date of Implementation (“Grandfathering”).
Concepts of fundamental fairness dictate that a judge who was appointed or elected prior to the
implementation of the rule change should be exempted from its application. Such judges were not on
notice that their expressive and associative rights to participate in private, lawful activity would be so
seriously curtailed. People who seek judicial appointment or election in the future will be on notice,
so they can make a decision as to whether the costs of public service are offset by the benefits.
V. If the Change is Implemented as Proposed, its Effective Date Must Be Delayed Until June 1,
2015.
No explanation or rationale is offered for the proposed implementation date of August 1, 2014. As
noted above, many judges have assumed volunteer commitments in BSA either for the calendar year
(as to local units) or for the BSA fiscal year (as to national positions). The short implementation
period puts judges who have assumed specific responsibilities within BSA in an undignified and
awkward position as they to scramble to renege on their commitments, find replacements, and
attempt an orderly transition. Such awkwardness might be necessary if there were any showing of
exigency for the change in a policy that has existed without incident for over a decade. Here there is
none. An effective date of June 1, 2015, will give a reasonable amount of time for both local and
national volunteers to wrap up their duties and ensure adequate transition in an orderly manner.
In conclusion, the undersigned respectfully request that Proposal SP14-02 of the Supreme Court
Advisory Committee on the Code of Judicial Ethics be rejected in its entirety. Alternatively, the
Proposal should be tabled indefinitely, to allow the Committee to obtain empirical data to support its
assumption that the Proposal will promote the integrity of the judiciary and enhance public
confidence in judicial impartiality. Further, the Committee must conduct and publish the necessary
legal analysis to support a 5 principled distinction among and between the organizations that judges
participate in as part of their private lives. Finally, if the Proposal is implemented, it should be
grandfathered in so that currently-acting judges are exempt; and in no event should the effective date
of the Proposal be earlier than June 1, 2015.
517. P. Sanford
San Diego, CA
D
COMMENT:
BSA is a terrific organization that has been demonized by a group of loud egotistical fanatics
demanding that you either support them or they will destroy everything you care about. Following
the wording of this proposal, I don't see how a judge could possibly be involved in any racial or
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Position
Comment
sexual (female, not homosexual) organization. Not everyone has to like everyone, but they should
tolerate them. And whining about how unfair and horrible life was - get over it, Homosexual and
Queer are the new cool.
What's really sad is that these same fanatics will attempt to intimidate and silence people who offer
opposing opinions to their agenda.
518. Sybil Schlesinger
Natick, MA
A
COMMENT:
I believe that this loophole allowing participation in discriminatory nonprofit youth organizations
should be closed. Youth organizations should be setting the examples for life, so it is even more
important that children not be asked to participate in organizations that discriminate. Thank you.
519. Walter Schlosser
Los Angeles, CA
A
520. John Schmidt
Sacramento, CA
D
COMMENT:
Please remain neutral on this as it is not a judicial matter.
521. Kent Schmidt
Mission Viejo, CA
D
COMMENT:
It is striking to me that this rule change is being considered a few months following the death of
Professor George Anastaplo of the University of Chicago. I have read Justice Hugo Black's dissent
in Re Anastaplo 366 U.S. 82 (1961) and believe he was correct in concluding that there was no
constitutional basis to prevent this gifted and principled individual admission to the Illinois Bar.
Most legal scholars today would agree that Justice Black's was ahead of his time in rightly valuing
the constitutional rights of freedom of association even in the face McCarthyism and fears of
Communist infiltration. In my view, the proposed rule change cannot be reconciled with Justice
Black's well-reasoned dissent and does not adequately balance the rights of members of the bench to
associate freely with those whose views may be contrary to the majority.
522. Jonathan Schnal
Riverside, WY
D
COMMENT:
Obviously, this is a bill of attainder directed squarely at the BSA. The purpose of the BSA is to teach
sporting and outdoor ethics to boys and young men: its principal purpose is not to discriminate
against a group or class of persons. If the BSA's policies were so disturbing, why was the rule not
applied to it for exclusion of girls; will the rule be applied to the Girl Scouts of America for
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Comment
excluding boys, a policy also discriminatory under the rule?
The stated purpose behind the rule change is to promote public confidence in the judiciary. I would
argue that adoption of the rule will erode public confidence: what it indicates is that the Courts have
been politicized and are pushing social and political agendas instead of impartially applying the law.
And, the Court is willing to sacrifice certain constitutional protections, namely freedom of religion
and association, in the name of political correctness for a very small activist group.
The BSA is not the Klan or the Arian Nation. An impartial judiciary should not persecute what is
overall an innocuous organization whose purpose is to instill discipline, sportsmanship and leadership
principles in young men, irrespective of their sexual orientation. I am opposed to adoption of the rule.
523. Brady Schuh
Santa Barbara, CA
D
COMMENT:
The Boy Scouts of America are NOT a hate-mongering organization. Adults involved in the
organization are not joining it to exhibit their own beliefs concerning sexuality, they participate in the
organization to promote moral values and encourage them in a future generations.
524. Arthur Schulcz
Leesburg, VA
D
COMMENT:
This appears to be an attempt to rewrite the Constitution and/or ignore the multitude of data, much of
it from the homosexual community, that indicates the behaviors associated with that life style are
neither safe nor healthy.
Numerous religions oppose such behaviors and in effect this proposal will erect a religious test
requiring a judge to agree with those religions that find homosexual behaviors acceptable.
525. Stephen Schulman
Sacramento, CA
D
COMMENT:
I think this is an absurd exercise in political correctness.
When this issue last surfaced in 1995, the proposal to ban participation in the Scouts greatly pained
my employer, then-Justice (now Rev.) Rod Davis, because he wanted to participate with his sons in
scouting. The idiocy of the ban in his case is reflected in the fact that the only two openly gay
research attorneys at the Third District BOTH worked for him--my predecessor and myself.
Participation in the Boy Scouts does not communicate a discriminatory mindset to any rational
person--but a judge is always free to disclose this participation (in the rare litigation where it has
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ANY relevance), and invite any party whose exquisite sensitivities might be offended to file a
disqualification on this basis.
526. Nathaniel Scovill
San Jose, CA
D
COMMENT:
I am an adult leader Scout Troop 702 in San Leandro CA. I have been in scouts for 12 years now and
I am a proud Eagle Scout. This change would be extremely unfair. In fact, it is unfair to the point of
discriminating to prevent discrimination (sounds ridiculous doesn't it? Well it is). Scouts is a massive
organization, and being a massive organization it is not made of one single opinion on any given
subject. Just because the official ruling by the BSA does not allow gay or bisexual adult leaders, this
does not mean that all scouts are homophobic. In fact just in the past year scouting has taken a
massive step forward in allowing gay scouts to become members. They did this at the risk of many of
their charters. This decision was not popular with some groups but it was popular with others. When
this decision was made I was incredibly happy. My troop has had gay scouts before the ruling passed
despite it being against the rules. Before that ruling passed there was a movement of Eagle Scouts
who turned in their badges (gave up being an Eagle Scout, which is otherwise considered a lifetime
achievement) They did this so that they could show that they would not be a part of scouting when it
discriminated against youth. Scouting is moving forward, but it needs time. It is a very old
organization founded in traditions dating back generations. Changing such a thing overnight is
impossible. Changing it over time is doable. Do not punish some of our best and brightest for
participating in an organization that teaches leadership skills looked for in judges. Do not
discriminate against an organization that has raised youth to be valued members of society. Do not
punish an organization that has given me more lifelong friends than school church and sports
combined. Do not do this.
527. Sheila F.Seeley
Louisville, Ky
D
COMMENT:
Leave THE CROSS UP! All man's law is written on Biblical principles! If someone doesn't like the
cross: They are being convicted in their mind of breaking the law! Thank you.
528. Chad Sellers
Placerville, CA
D
COMMENT:
I am a proud member of the Boy Scouts of America who respected the scout law, that is a scout is
"trustyworthy, loyal, helpful, kind, obedient, cheerful, thrifty, brave, clean, and reverent."
Growing up my dad would ask me if I was lying about something, and say, "Chad, scout's honor you
are telling the truth?" Many times I confessed that I was lying or proudly replied with the truth
because of the impact of that question. I learned to be trustworthy and honest in my time during the
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scouting program.
In all respects, I appreciate the judicial branch of California trying their best to bring equality to the
state, but I feel that an organization like the scouting program does not evoke in young men a
tendency to discriminate against homosexuals, rather to be fair and considerate of all people. In the
treatment of persons of homosexual tendencies, I think we as a state should expect greater counsel
and respect from judges who honorably served time in the Boy Scouts program.
Being a boy scout should be a plus for fairness in the law, not a burden.
529. Mark Seymour
Beaumont, CA
D
COMMENT:
Boy Scouts of America has the core values the Judicial system lives by which are represented in the
Scout Oath, Law, Motto & Slogan. These values are not contrary to the Constitution of the United
States.
530. Ray Shatzer
Wildomar, CA
D
COMMENT:
What hypocrisy and bigotry. A judge in a same sex relationship can rule on a case regarding a voter
approved definition of marriage without disclosing his status or disqualifying himself, yet someone
involved in an organization that teaches patriotic and decent values cannot be a judge. I have been
associated with the BSA as a leader and not once in the six years was sexual orientation or degrading
another individual been done or encouraged. I am a counselor of three merit badges that teach federal
and local laws and how to treat all people with respect and dignity no matter of affiliation. As a
judicial officer I have taught principles of the judicial process and interviewed many youth regarding
the respect and admiration of the judicial body. This type of conduct by the judiciary questions my
respect and admiration.
I also see this as an attack on religion, since many religious beliefs have as a program associated with
their congregations a BSA troop. There will be a number of judges that would be disqualified under
this proposal just as a result of their religion and its status with BSA. I, myself, would be disqualified,
even though I have friends in same sex relationships.
Nowhere in the proposal or commentary was there an example of bias as a result of a judge being
affiliated with BSA. It is interesting that a body of judges would consider a ruling on a matter of
conjecture and philosophy. But, that is the essence of bigotry.
Projection has been a common fallacy of today. I see it here. I would wonder how many of you ruling
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on this disqualification have associated yourself with BSA. In the name of protecting the public have
you prejudiced your bias? Even by the notion of the proposal I would think so, because it smacks of
ignorance, bigotry and bias. These does nothing but segregate the judiciary into narrow-mindedness
and is the road of destruction of diversity on the bench. A slippery slop begins with this step.
531. J. D. Shields
Concord, CA
D
COMMENT:
I strongly oppose the proposed changes. This is a slippery slope that portends future elimination of
the exception for a judge's membership in religious organizations that view homosexual practices as
sinful. The Boy Scouts of America, which is the obvious focus of the proposed changes, recently
revised its membership standards to prohibit denial of membership to youth on the basis of sexual
orientation or preference alone; however, because of numerous instances of child abuse by scout
leaders, and the many lawsuits that have followed, adults that are "open or avowed homosexuals or
who engage in behavior that would become a distraction to the mission of the BSA" are excluded.
This is not "invidious discrimination" but just common sense for an organization that is seeking to
protect the youth it is committed to serve. Thousands of members of the bar, myself included, are
former boy scouts or boy scout leaders. Do not disqualify a substantial portion of the bar from
consideration for judicial appointment just because of membership in such an organization. Judicial
candidates can be adequately screened and rejected for bias based on their personal views and
practices.
532. Jeffrey W. Shields
Irvine, CA
D
COMMENT:
I am grateful for the opportunity to comment on the proposed Amendments to Canon2C of the Code
of Judicial Ethics. By way of disclosure, I have been an active member of the Boy Scouts of
America for some 49 years, and am a lifelong member of The Church of Jesus Christ of Latter-day
Saints (the "LDS Church"). I speak, however, in my capacity as an individual, and not as an official
representative of any organization.
I oppose the proposed elimination of the exception to Canon 2C for nonprofit youth organizations,
or, alternatively, recommend that membership in the Boy Scouts of America (the "BSA") be included
within the exception for religious organizations.
I will briefly address three grounds for my position and recommendation: (1) that my experience
has been that the BSA is not an organization that practices "invidious discrimination", but, rather has
fostered countless good deeds and tremendous benefits to our society; (2) that to remove the 1996
exception for nonprofit youth organizations, which was particularly designed for jurists involved in
the BSA, would wrongly impugn the rich history of judges and prominent citizens who have been
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active members of the BSA; and (3) that the religious exception should apply to membership in the
BSA regardless of whether the nonprofit youth organization exception is eliminated.
As already noted, I have spent most of my life actively involved in the BSA. Beginning as a Cub
Scout, with my father as my Cubmaster and my mother as my Den Leader, I continued as a youth
through Scouting to earn the Eagle Scout Award, to achieve the Order of the Arrow, and to become a
Junior Assistant Scoutmaster. As an adult, I have served for years in many capacities, including as a
Scoutmaster, Assistant Scoutmaster, Cubmaster, Webelos Leader, and Merit Badge Counselor (such
as for the Law Merit Badge). I have been on far more backpacking hikes, campouts, river trips,
training exercises, service projects, and other Scouting activities than I could possibly count.
Significantly, however, through all of those experiences and in all of those circumstances, I have
never once seen any boy or adult discriminated against in any manner -- not once. I have never seen
anyone excluded, whether on the basis of sexual orientation or otherwise, nor have I ever witnessed
anything other than welcome and inclusion for those who wish to participate.
Far from any discrimination, what I have witnessed is thousands of men, women and youth who
have embraced and done their best to live the principles promoted for over a century by the BSA -that a Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave,
clean and reverent. Scouts are to be prepared, and to do a good turn daily. All wonderful ideals
which have lifted and inspired not only those directly involved in Scouting, but also all those around
them.
To now remove the exception to Canon 2C for the BSA would be to wrongly and coldly denigrate
the tens of thousands of exemplary men and women -- many of them current and past members of the
California judiciary -- who have served their communities according to the highest principles of
Scouting. This is an unnecessary slap in the face to all of those great individuals, who instead
deserve to be applauded for their generous services. It is common knowledge that multitudes of U.S.
Presidents, Congressmen, astronauts, law enforcement officers, fire fighters, athletes, military
officers, teachers, doctors, etc. have been, and continue to be, loyal members of the BSA. None of
them, nor their many accomplishments, deserve to be besmirched by this proposed change.
Perhaps most critically, however, is the fact that the BSA is, and always has been, a religious
organization. Duty to God is one of the hallmarks of the BSA, and nearly every religion has a
particular "Duty to God" award to be earned in Scouting which is specially tailored for the members
of that religion. One need only to thumb through the vast array of Scouting literature to see the
emphasis on devotion to God, religion, prayer and reverence.
Just as significantly, for members of many faiths, their involvement and membership in the BSA
is expressly because of their religious faith and the assignments put upon them by the leaders of their
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congregations.
I can speak specifically, for example, to the LDS Church model, and its interaction with Scouting
over the past 100 years or so. By way of important background, in the LDS Church, men and women
do not volunteer to become Scouting leaders. Rather, like all positions in the LDS Church, the
Bishops and other ecclesiastical leaders of the LDS Church issue assignments to specific positions,
referred to as "callings", to the members of their congregations. Critically, the protocol taught and
inculcated within the LDS Church is that, because it is strongly believed that callings are inspired of
God and that God directs His church leaders to issue them, when a calling is issued to a member, that
member should not refuse the calling, but should dutifully accept it no matter the burden and
commitment, and no matter the sacrifice.
Because the youth arm of the LDS Church for young men specifically is Scouting, one significant
group of callings within the LDS Church for thousands of men and women are positions within
Scouting. Moreover, every person called to a position in Scouting within the LDS Church, together
with all of the major leaders in the LDS Church (e.g., Bishops, Stake Presidents, etc.), is expected to
register as a member of the BSA. For faithful members of the LDS Church, to refuse a calling issued
by one's Bishop or other Church leader is tantamount to
spiritual insubordination, and is anathema.
With that in mind, please picture the dire straits that elimination of Canon 2C presents for a judge
or judicial candidate who is a faithful member of the LDS Church and called to a position within
Scouting. To adhere to the calling would require resignation from the judiciary. To retain the
position in the judiciary would require rejection of one's faith.
In many ways this brings to mind famous quotations from the Bible. Shadrach, Meshach, and
Abed-nego, answering the threats of King Nebuchadnezzar with hope in their God's deliverance, but
nonetheless stating, "But if not, be it known unto thee, O king, that we will not serve thy gods, nor
worship the golden image which thou hast set up." (Daniel 3:16-18) The apostles Peter and John
refusing to bend to the commands of those in power by saying, "Whether it be right in the sight of
God to hearken unto you more than unto God, judge ye." (Acts 4:19)
Men and women of faith should not be placed in a position where they have to choose between
their free exercise of religion and their position in the judiciary. Not only is it a violation of their
Constitutional rights, but it is a violation of conscience and antithetical to the principles upon which
are country was founded. Principles by the way, which form yet another founding block of Scouting
-- duty to country.
I sincerely appreciate your attention and thoughtful consideration of my comments. I urge you to
reconsider your proposal to eliminate the exception to Canon 2C for nonprofit youth organizations,
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or, alternatively, recognize that membership in the BSA should be included within the exception for
religious organizations. Thank you
533. Jenny Shin
Temecula, CA
D
COMMENT:
I oppose the proposed amendments because there are already adequate procedures in place through
the disqualification and recusal procedures. Further, the benefit of judges, referees, administrative
law judges and arbitrators as leaders in the BSA far outweighs the risk that the public at large will
question a judge's overall impartiality because he or she is a member of the BSA. What's more, as a
practical matter, a boy's ability to fully and meaningfully participate in Boy Scouts may require that
an adult be a member in order to provide rides, attend field trips, etcetera. The proposed amendments
therefore will limit family members' participation in any capacity. Lastly, I oppose the Supreme
Court's forcing through judicial fiat the ouster of BSA leaders and volunteers who are exactly the
type of leader that members of nonprofit youth organizations need.
534. Jack Shirley
Oceanside, CA
D
COMMENT:
I respectfully disagree with your proposal to eliminate the nonprofit youth organization exception.
The rationale for your proposal is based on a groupthink mentality and on the squeaky wheel
opinions of the minority, rather than on solid facts and circumstances relating to judges who support
the BSA. Your proposal will weaken, not strengthen, a judge’s ability to preside fairly in his or her
duties.
The rationale for eliminating the nonprofit youth organization exception includes (1) California is
part of the 47% of states that list sexual orientation as a protected class and (2) California is the only
state that contains a prohibition against membership in nonprofit youth organizations as it relates to
this protected class. In other words, the Advisory Committee is proposing this change merely to join
the bandwagon of other states, and to please (or at least not offend) its constituents in those states.
The Advisory Committee has not presented any solid facts as to whether or not California judges
belonging to the BSA are impaired in their judicial duties; rather the Advisory Committee is relying
on the opinions of those in other states. This rationale is basic groupthink and is akin to the
proverbial “jumping off the bridge because your friends are doing it.”
Further, the rationale for eliminating the nonprofit youth organization exception includes “recent
developments in the law relating to recognition of same-sex relationships.” The Advisory Committee
is fully aware that these “developments” in the law are not based on the opinions of the majority of
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Californians, but were decisions ushered in by the state and national judiciaries in reaction to the
squeaky wheel voices of the minority. As such, the Advisory Committee’s proposal could be
construed as another example of the judiciary overriding the opinion of the people. The Advisory
Committee’s purpose is to better serve the people, and yet the proposed change would override the
opinions of the general populace.
Where are the facts? In the least, the Advisory Committee could provide examples of how a
California judge’s affiliation with the BSA has impaired his or her ability to be impartial. If the
Advisory Committee is truly concerned about public confidence in the judiciary, then it should base
its decisions on the opinions of the public.
The BSA’s purpose is to raise boys to be good men, not to promote or undermine those in same-sex
relationships. The BSA cannot fulfill this purpose by allowing itself to become another battlefield
for those who would exploit it to promote the same-sex agenda.
Further, judges are impartial in the courtroom because they simultaneously uphold the law with
strictness and yet have compassion on the people. Many judges support the BSA because it teaches
our young men to be law-abiding citizens and to have respect for others. The BSA teaches exactly
the standards that judges utilize to be impartial. The Advisory Committee’s proposed change would
thereby weaken a judge’s ability to be impartial and to promote obedience to the law in the
community.
I respectfully request the Advisory Committee reconsider its proposal. Please do not weaken our
judicial system by catering to the opinions of other states and to the California minority. Please
continue to allow our judges to be part of youth organizations that teach obedience and respect.
535. Mike Siller
Long Beach, CA
A
COMMENT:
Judicial Branch should never discriminate against any group on any basis.
536. Karyn Lui Silverberg
D
COMMENT:
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537. Logan Silverberg
Lake Forest, CA
D
COMMENT:
538. Hon. Rick Sims (Retired)
Laupahoehoe, HI
D
COMMENT:
I write to oppose adoption of an ethical rule that would bar California judges from being embers of
the Boy Scouts. I am now retired, but served for 30 years as a California state court judge.
As understand the current conversation, the rule is proposed because the Boy Scouts allegedly
discriminate against gays.
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Also, I understand the current policy of the Boy Scouts is to allow gay boys to be scouts but to bar
gay men from being scout leaders.
The ordinary meaning of “discriminate” incorporates the notion that a class of people are being
treated differently without rational reason. But there is an eminently rational reason for the Boy
Scouts exclusion of gay leaders; hence, the Boy Scouts are not discriminating.
Sexual molestation of scouts by adult leaders is a horrendous problem for the Boy Scouts. The Boy
Scouts are currently defending numerous lawsuits throughout the United States alleging that Scout
leaders have molested boy scouts. (Just google “By Scouts Sued for Sexual Molestation.”)
Certainly most gay Scout Leaders would not molest scouts in their charge. But it stands to reason that
the incidence of molestation will be greater where there is a sexual attraction between leader and
scout than where there is none.
In my view, the Boy Scouts act rationally by excluding people who are sexually attracted to males
from being Scout leaders. Hence, the Boy Scouts do not discriminate and the proposed ethical rule
should be rejected. Thank you for considering these views.
539. Brian Slater
San Diego, CA
A
540. Elizabeth Smith
Santa Ana, CA
D
COMMENT:
Seriously impinges on the right of freedom of religion and belief. It is not only possible, but it is
actually more likely, that a person with moral and ethical values (such as a believing Christian) will
be more fair and impartial and act with as least as much integrity as those w/o religious convictions.
This Bar proposal makes the simplistic and erroneous (although much trumpeted) assumption that
because a person may be personally opposed to gay marriage that person is a bigot and therefore
stupid and therefore cannot understand or interpret the law fairly and impartially. This view is itself
horrendously bigoted. I am fully aware that by simply expressing my right of speech here I will
likely be targeted and persecuted by Bar members or others who will no doubt be given access to all
negative voting information. Freedom is not alive and well in the CA Bar, I am very sad to say.
541. Dr. Emily V Smith
D
COMMENT:
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Nuevo, CA
Position
Comment
Throughout political America, the radical left is working its hardest to limit the ability of
conservative Christians to practice their religious convictions. As a member of the Church of Jesus
Christ of Latter-Day Saints, mother of a cub scout, previous Cub Scout leader, and a conservative
Christian, I object to the fact that faithful Christian judges will be forced to choose between
affiliation with organizations which reflect religious conviction and continuing their chosen
professions. This country was founded under the belief that the Constitution was appropriate only for
a moral and religious people. (Samuel Adams) I refuse to support any changes which will result in
moral and religious people excluded from judicial positions because they choose between affiliations
which reflect their Christian values and judicial positions. However well-intended, this policy
reflects a fantastic process by which the courts can exclude from practice those with strong
conservative Christian conviction and can further the attempts to establish secularism as the state
religion. With strong Christians eliminated from the judicial branch, what a fantastic way to further
guarantee the installation of secularism as the state religion! If this is adopted, it will only be to the
detriment of our state.
542. Greg K. Smith
Cherry Valley, CA
D
COMMENT:
The Boy Scouts of America has, for many decades, been the premier organization for developing
fine, moral, and creative young men. These talented men have gone on to be Presidents, Judicial
Leaders, Scientists, and Educators, to name just a few. Many of these fine men have gone on to be
the next educators for our generations of fine young men. To legislate that respected Judges cannot
be those excellent trainers in the BSA any longer is a travesty. I have been in scouting for 59 years an Eagle Scout and volunteer Scout leader. I have greatly benefited from the education and guidance
of numerous Judges who have given their time to help keep growing young men like myself on the
right path. Please vote NO on the proposed changes of SP14-02. Thank you.
543. Steven Smith
Nuevo, CA
D
COMMENT:
I believe it would be a mistake to implement the changes proposed to the Code of Judicial Ethics.
The changes proposed would prevent judges from affiliating with the Boy Scouts of America based
on social policies of the organization that are consistent with the social positions of a substantial
portion of California citizens. The Code of Judicial Ethics already includes provisions for judges to
step aside from cases in which there is a question of impartiality. By preventing judges from
affiliating with the BSA and staying on the bench, judges will have to decide from which group they
will disaffiliate. Certainly there will be judges who choose to disaffiliate from the BSA, but not
renounce the positions of the BSA. With the current policy, it is fairly clear as to which judges may
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need to recuse themselves. This proposed change may create an environment where it is more
difficult to foster impartiality. Preventing judges from affiliating with private nonprofit youth
organization whose social policies are viewed to be out of step with current social changes also
proves to be discriminatory to judges. Implementation of this policy will result in a litmus test based
on social conscience for judges in California, denying judgeships to honest potential judges, but
leaving open the possibility for judgeships to those who silently hold similar views.
544. Timothy M. Smith
Laguna Niguel, CA
D
COMMENT:
Freedom of association and speech are long-cherished constitutional freedoms in this nation and in
this state. Disqualifying judges who have served in the Boy Scouts or whatever organization the
powers that be want to disfavor next, is a serious attack on associational freedom, a judicial and
governmental intolerance toward one or more institutions that have long fostered civil and moral
discourse and the rule of law in this country and this state. Church and religious associations are only
"exempted," but not outside of the target. This is conduct much more akin to Nazi Germany or Stalin
than to the glorious State of California.
545. Hon. Bradley O. Snell
Helmut, CA
D
COMMENT:
I would request that we keep and not change Canon 2C, including keeping the exception for nonprofit youth organizations. I have been affiliated with the Boy Scouts since I was an 8 year old boy.
I am an Eagle Scout. The qualities and values that the Boy Scouts promote among youth are of great
value and serve our communities well. Why would the courts take a position that prevented judicial
officers from helping the youth of this nation develop qualities like honesty, integrity, honor and
making and keeping oaths to God, which are values the court itself upholds and demands?
I encourage you to reconsider your support for these changes.
546. Richard D. Sopp
El Dorado Hills, CA
D
COMMENT:
I favor leaving the existing rule as written and oppose the idea of forbidding judicial officers from
belonging to or serving in the BSA. As a private organization, BSA should be free to establish its
own standards based on the moral and religious values of its members. The amendment would give
the appearance that the judiciary is intolerant of those who hold those values. The amendment would
do nothing to promote justice in this State and would further damage an organization that does much
good in the world.
547. Mike Sorensen
D
COMMENT:
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Tustin, CA
548. Matthew Spaulding
Culver City, CA
Position
Comment
There needs to be an exception for Boy Scouts but I believe this whole proposal violates the judges
First Amendment right to free association.
D
COMMENT:
I do not believe that membership in the Boy Scouts should disqualify a judicial candidate. Boy
Scouts and others are taught to respect others. They are also taught to respect others viewpoints. A
judicial candidate that respects other people will be a fine judge.
We all draw moral boundaries in our personal lives. We all belong to organizations that do the same.
I strongly disagree with the notice that the Boy Scouts practice invidious discrimination. It is just
not true in any sense of the words "invidious discrimination". Boy Scouts are taught not to
discriminate or mistreat other people, but to treat everyone civilly and honorably.
549. Homer Spears
Beaumont , CA
D
COMMENT:
• These changes would disenfranchise virtually all faith-based persons, and others, who participate
as BSA leaders or consultants.
• Many judicial officers serve as BSA leaders—especially among Latter-day Saints and other Church
leaders, who accept this role as a matter of religious duty. By their BSA leadership, these judicial
officers—men and women alike—provide excellent role models for young men and women.
• There is no evidence that any judicial officer who belongs to BSA has exhibited bias from the
• Prohibiting membership in BSA does violence to the ideal of viewpoint diversity among bench
550. Trenton Spears
Bakersfield, CA
D
COMMENT:
Judges have lives to. Many support the Boy Scouts of America and can still be an effective Jurist on
issues of future and pending cases involving the BSA or any other case. I did not bother the Judge
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551. David Spellman
Gilbert, CA
Position
Comment
who overturned Proposition 8 as unconstitutional when he was in fact homosexual and should have
been ruled unqualified to rule on the case. Where were you when this Judge was allowed to make a
ruling when he was clearly biased. I believe that a jurist is instructed to be a jurist based on the facts
of the case not personal choices or rulings. This proposal is nothing more than a precursor to make
sure that any court action against the BSA in the California Courts will have a clear path to force the
BSA to change its policy to allow adult homosexuals leaders into its program. Please do not pass this
proposal as it will clearly open the path of legislation in our courts on many issues. The Judges are
enforcers of past and present laws not the creator of laws.
D
COMMENT:
Back when the United States honored the Constitution and we had a somewhat free country, it was
acceptable to be on either side of any issue. Now it appears that tolerance and diversity of views is
only given lip-service. The essence of tyranny is when one faction forces its will upon its opponents.
After so many years of progress, we have tragically passed the zenith of freedom and are now
descending into political and religious oppression like what the founders of this nation fled in
Europe.
Note that I have said nothing as to what the issue is or where I stand. I would decry this kind of
oppression no matter who the victim or oppressor was. You can fill in the blanks with anything you
want and the argument would remain the same and the evil still would be apparent. Those who
believe the ends justify the means are always blind to their own moral vacuum and think their cause
is somehow virtuous and above reproach.
Nevertheless, I will proclaim that I am a Christian and will gladly suffer for his namesake. I believe
in tolerance and love towards all people of every persuasion. I will accord all people their freedom
even if such tolerance is not reciprocated. I am willing to lay all--career, associations, wealth, and
life itself--on the altar of religious conviction if necessary and I will not deny Christ or his teachings
as I understand them.
552. St. Thomas More Society
By Gregory N. Weiler
President
Orange, CA
D
COMMENT:
See attached PDF.
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553. Kevin Staker
Camarillo, CA
Position
Comment
D
COMMENT:
This proposed rules infringes on the religious liberty. An individual should be allowed to belong to
an organization that supports his or her religious beliefs. No matter how unpopular they may be.
Thanks for any consideration you may give my opinion.
554. Rachel Stark
Yucaipa,CA
,
D
COMMENT:
I believe that it is unethical and immoral to use a person's affiliation with BSA to determine whether
that person is qualified to be eligible to be a judge in California. BSA is only and will always be a
program in which a boy can learn to be a better citizen and uphold good and moral values. This has
nothing to do with the educational requirements that a judge needs to have completed to be able to be
a judge. Just like a person's religion or race or the like is irrelevant to a person's ability to do a job, so
is belonging to BSA or having any connection with it has nothing to do with a person's ability to be a
judge and upholding the law in California.
555. Joshua Steele
Studio City, CA
A
556. David Steinkraus
Fullerton,CA
D
COMMENT:
On behalf of myself and David Steinkraus, we urge rejection of the proposal to amend SP14-02 to
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557. Paul Sternhagen
Van Nuys, CA
A
COMMENT:
Discrimination should never be condoned or allowed.
558. Mark Stine
Gridley, CA
D
559. Molly Stoddard
San Luis Obispo, CA
A
COMMENT:
California’s laws are clear — discrimination against people based on their sexual orientation or
gender identity is wrong. Please close the loophole that allows judges to participate in youth
organizations that discriminate, like the Boy Scouts.
560. Thomas Stone
Santa Barbara, CA
A
COMMENT:
Our judges should always appear to be fair and unbiased. Affiliation with organizations that
discriminate base on sexual orientation damages their reputation.
561. Donald E. Stout
Irvine, CA
D
COMMENT:
Our nation was founded on, among others, the principle of freedom of association, which is a
Constitutional right enjoyed by all citizens, including those who elect to serve in the judiciary. The
Boy Scouts, and other similar non-profit youth organizations serve a valuable role in our
communities, which is not filled by any significant alternative organizations at the present time.
Millions of boys benefit from the program offered by the BSA. To deny a judge the right to
participate in the BSA or other similar organizations with his son(s) is an action to be taken with
great sobriety, knowing that doing so will deny such a judge a significant liberty in how he or she
uses his/her free time and how he/she directs the upbringing of his/her children, another important
right.
The rationale for taking this draconian step is apparently the fact that 22 other states prohibit judges
from participating in organizations if they discriminate based on sexual orientation, but do not allow
for an exception for non-profit youth organizations. So what? First, 28 states apparently have no
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such restriction at all, a clear majority. So, if our goal is merely to play "follow the leader" here, we
would eliminate the entire category of sexual orientation from the canon. Second, just because other
states have made the draconian choice to deny judges the freedom to participate in Boy Scouts and
other similarly situated organizations with their families does not justify California following that
choice. We are leaders who developed a thoughtful exception because we recognized the tremendous
contributions these organizations play in developing our children into young and accomplished
adults, and we should be proud of our thoughtful discretion in doing so.
562. Joseph R. Strain
Oroville, CA
D
COMMENT:
The thought of excluding members of the Boy Scouts of America from serving as Judges in
California is baffling. Scouting serves to build young men in ways that no other organization can do.
Those who have been involved with Scouting over the years have contributed to effort of teaching
individuals how to be law abiding citizens and make the right choices in life regarding their careers
and also a belief in God. The passage of this proposal must not be allowed to move forward.
563. Michael Strong
Mentone, CA
D
COMMENT:
•Many judicial officers serve as BSA leaders—especially among members of the Church of Jesus
Christ of Latter-day Saints, who accept this role as a matter of religious responsibility. By their BSA
leadership, these judicial officers—men and women alike—provide excellent role models for young
men and women.
•There is no evidence that any judicial officer who belongs to BSA has exhibited bias from the bench
•Prohibiting membership in BSA does violence to the ideal of viewpoint diversity among bench
In addition, this would limit the freedom of the Judicial officers by restricting them from providing
service in ways fulfilling to them and their families. Perhaps they have a son or daughter in scouting
and would like to serve as a leader for them. It is inappropriate to restrict such involvement by men
and women who have the right to serve.
564. Kenneth Strongman
Walnut Creek, CA
D
COMMENT:
I believe that this is unnecessary at this time. BSA policy has changed and believe will continue to
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change. After the Court goes through this considerable effort to brand BSA as intolerant, will the
Court spend an equal amount of time and effort to undo the damage after BSA policy had changed.
It is analogous to the Grape Boycott by the United Farm workers. Once started, many people
continued to boycott grapes long after the farmers and farm workers reached an agreement and
thereby hurting both farmers and farm workers. Here, BSA will forever damage by singling them out
for special treatment.
565. Ellen Stubbs
Yucaipa, CA
D
COMMENT:
Many officers of the court serve as leaders in BSA—particularly Latter-day Saints, who accept these
positions as a matter of spiritual responsibility. BSA leadership by any officers of the court provides
excellent character examples for young people.
There is no proof that any officer of the court who belongs to BSA has displayed partiality on the
basis of sexual orientation while presiding.
Banning membership in BSA does damage to the ideal vision of a diversified bench. Having a
profound belief concerning the morality of homosexual behavior does not prevent officers of the
court from maintaining an equally deep commitment to equal justice to all, irrespective of sexual
orientation. To suggest that BSA membership taints judicial officers, such that they cannot act
objectively is narrow-minded and fanatical.
566. Ethan Stubbs
Riverside, CA
D
COMMENT:
It would appear that the disclosure requirement made in 2003 would sufficiently address the concerns
of any party that may have doubt as to the impartiality of the affiliated judge(s) and at the same time
allow the judges to continue to support nonprofit youth organizations under the exceptions. I believe
to leave the Canon as is would be the best course of action.
567. Michael Stubbs
Yucaipa, CA
D
COMMENT:
Many officers of the court serve as leaders in BSA—particularly Latter-day Saints, who accept these
positions as a matter of spiritual responsibility. BSA leadership by any officers of the court provides
excellent character examples for young people.
There is no proof that any officer of the court who belongs to BSA has displayed partiality on the
basis of sexual orientation while presiding.
Banning membership in BSA does damage to the ideal vision of a diversified bench. Having a
profound belief concerning the morality of homosexual behavior does not prevent officers of the
court from maintaining an equally deep commitment to equal justice to all, irrespective of sexual
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orientation. To suggest that BSA membership taints judicial officers, such that they cannot act
objectively is narrow-minded and fanatical.
568. Meghan Joyce Stubbs
Yucaipa, CA
D
COMMENT:
The BSA endorse a code of moral and ethical behavior and conduct. You are proposing take action
against a judge, who is supposed to act in a moral and ethical way to uphold the law, who is
associated with that organization. Why? If a job description runs parallel to an organization's code of
conduct, how can you punish them for being associated with it? Beyond that, if you take action
against people that are associated with this group, then you set a president to take action against
others who associate themselves with the "wrong" groups. What will be next? Will a person be
barred from serving if they have the "wrong" pet, watch the "wrong" t.v. programs, live in the
"wrong" neighborhood, have the "wrong" sexual orientation (whatever that may be...), or are part of
the "wrong" religion. You may say that at least some of these responses are ridiculous. That is your
right. However, I reserve the right to say that THIS action is the ridiculous thing and is plain wrong
anyway you care to look at it. If you punish this group (the BSA) and people associated with them,
then how can you say that you are upholding the individual's constitutional rights? How can you say
that you uphold the law?
569. Matt Suess
Monterey, CA
D
COMMENT:
I oppose the proposed amendment to the Code of Judicial Ethics.
A judge's membership in the Boy Scouts of America (BSA) in no way implies a bias. The BSA is
highly respected institution that does untold good for young boys in this country. The organization is
already bending its standards to accommodate the LGBT lobby, but that's apparently not enough.
Implementing this amendment will deprive tens of thousands of boys of exemplary role models. For
what gain? To avoid the appearance of bias? Hogwash! I challenge the committee to show proof
that any bias has ever been demonstrated in a court case by a judge because of his membership in the
BSA. Furthermore, the committee should also show that the public's confidence in a judge's
impartiality is tainted by membership in the BSA. On the contrary, I believe a judge's membership in
the BSA is held up by the community as beacon of good citizenship.
It is clear that this is a politically correct effort to weaken the BSA and pressure it to bend its
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standards even more. Shame on anyone who thinks this is the right thing to do.
570. Steven Sullivan
Camarillo, CA
D
COMMENT:
The proposed changes are in direct violation of the first amendment specifically the right of free
speech and the right to assemble.
571. Clark H. Summers, III
Issaquah, WA
D
COMMENT:
Respectfully; the proposed changes reflect the imposition of a political opinion (that advocacy and
encouragement of homosexuality is an acceptable activity within the scope and purview of a private
nonprofit youth organization) upon a body of public servants (judges) in violation of their civil
liberties (freedoms of religion, expression and association). Such an imposition favors a specific
political constituency, and assumes that the judges so affected are incapable of determining for
themselves if their individual and private participation in the Boy Scouts of America is an accurate
representation of their personal religious beliefs. Furthermore, it would invent an ethical conflict
where none currently exists. Under the guise of "tolerance" the proposed amendment would
stigmatize judges for legitimate practice of their beliefs, conduct which has no application to their
fitness to serve in the judiciary. The proposed amendment is predicated upon the prejudiced
assumption that a judge would otherwise be incapable of fairly interpreting a California law with
which they personally found objectionable.
Although I do not currently live in the State of California, I hope to return to live someday. Such
efforts to further stigmatize those who do not comply with the winds of popular opinion are
shameful.
572. Charles Sutherland
Santa Ana, CA
D
COMMENT:
member of BSA?” The answer….No, I do not. Since the “public” is made up of so many opinions
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that do not agree, stating that “public confidence will be enhanced” by the change in this code
appears presumptive, because all public confidence would not be enhanced.
are already provisions in the Code of Judicial Ethics that facilitate recusal of a judge in this type of
circumstance.
religious organization from accepting various church callings or assignments. This amendment would
impact judges who are members of any religious organizations that support scouting, including
Catholics, Jews and Presbyterians, etc. The proposed change in the exception to Canon 2C would
violate the right of a judge to his or her freedom of religion.
For these important reasons, I am very opposed and believe that the proposed changes to the Canon
of Judicial Ethics should not be adopted.
573. M. Sutherland
San Diego, CA
D
COMMENT:
I strongly oppose the proposed amendments to Canon 2C on the Code of Judicial Ethics.
The Committee purports that eliminating the exception for a judge to hold membership in the BSA
would “enhance public confidence in the impartiality of the judiciary.” I disagree with the
committee’s position. And encourage them to leave the exception as written.
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member of BSA?”
The answer….No, I do not. Since the “public” is made up of so many opinions that do not agree,
stating that “public confidence will be enhanced” by the change in this code appears presumptive,
because all public confidence would not be enhanced.
are already provisions in the Code of Judicial Ethics that facilitate recusal of a judge in this type of
circumstance.
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574. Valerie Sutter
Director of Classical Conversations
Modesto, CA
Position
Comment
D
COMMENT:
Judges need to be given freedom to be involved in events with young people, even that of Boy
Scouts. Scouts benefit from the leadership of our government as the program itself shapes our boys
into men.
575. David E. Swenson
Los Alamitos, CA
D
COMMENT:
Please note that I am opposed to the proposed changes as I feel the changes would exclude many
well-qualified candidates.
576. Kathryn L. Swenson
Los Alamitos, CA
D
COMMENT:
Please note that I am opposed to the proposed changes as I feel the changes would exclude many
well-qualified candidates.
577. Donald Sylvia
Los Angeles, CA
A
COMMENT:
If an activity or issue is wrong it should be wrong for everyone without an exception being made for
a specific group. While the Boy Scouts of America overall is a positive group, it's discriminatory
practices align it much more with those would bring back slavery or deny women the right to vote,
etc. What you discriminate against never changes the fact that you are discriminating. I feel that
these judges should be presented with an ultimatum of maintaining their position as judges by leaving
the Boy Scouts or terminating their position as judges and maintaining their membership with the
Scouts. It seems very straightforward and simple to me.
578. Tim Taggart
Oceanside, CA
D
COMMENT:
Freedom of association has been a hall mark of our constitutions. Using the power of government to
deprive freedom of choice in whom we associate or express religious belief--the Boy Scouts have
always put forth principals of God and being morally clean. Morally Clean is based upon religious
belief and God's law, and regardless of man's laws or society's secular belief everyone, including
judges have the right and privilege to associate with those groups who expose religious and moral
principal which they have in common. Many religious organizations have direct ties and associations
with the Boy Scouts, of which I am sure many judges are apart. This is an ill conceived attempt to
force persons of moral belief to choose between those beliefs and a career. This is un-American at its
fundamental basis.
579. Lori Taketa
A
COMMENT:
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Eureka, CA
Position
Comment
I support the California judicial branch's proposal to eliminate the exception to participation in
nonprofit youth organizations that discriminate on the basis of sexual orientation.
Discrimination by non-profit organizations such as the Boy Scouts of America is hurtful to a segment
of our youth population and judges should not demonstrate support for these organizations by
volunteering for them. This participation undermines the appearance of impartiality and brings into
question their ability to be fair when presiding in cases involving lesbian, gay, bisexual or
transgender parties.
580. David A. Tanner
Citrus Heights, CA.
D
COMMENT:
I have read the LA Times article discussing the idea of prohibiting California judges from belonging
to the Boy Scouts of America. I fail to see any merit in this idea for the judges, the Scouts, the courts,
or the people of California. Judges, like any other people, can find excellent volunteer opportunities
to assist the Boy Scouts in the development of our young men. Educated people with real-world
experiences, such as judges, can be great examples to today’s youth, contrasting to negative examples
and attitudes that denigrate education as well as public service. BSA needs leaders the caliber of
judges. I have been volunteering with BSA for four years. I serve on the committee that runs our unit,
as well as personally leading Scouts. In that time, I have never seen or heard any issues, problems or
concerns related to sexual orientation. It is not an issue that we concern ourselves with. Perhaps
others believe that the issue is what occupies most of our time; it occupies none of it. We are
concerned with running the best program we can for our Scouts and their families. We are a place
for families to participate together in growing their sons. I do not personally like the BSA
prohibition, but I know that there is much, much more good that the Scouts do on balance. The value
that my family receives from participation in Scouts far outweighs a policy statement that has no
bearing on all of our Scouting experiences. The Times article indicated that those proposing the
barring of California judges from the BSA are concerned with the public confidence in, the
impartiality of, and the integrity of judges and the judiciary. Separating a few judges from the Boy
Scouts is not going to change those things at all. Certainly the two major political parties are more
disliked than the Scouts, should judges be prohibited from membership in them? Should judges be
prohibited from having business dealings, or buying stock in, unpopular businesses or corporations?
I fail to see how separating judges from the Boy Scouts of America is going to improve the judiciary
in any way. Is this is about how citizens feel about their judges in California? Do we love our judges
less than the States that bar judge’s participation in the BSA? A silly question for a silly
proposal. Keep things as they are. Allow judges to participate as they wish in the Boy Scouts of
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America. Better still, encourage their participation.
581. R. Taybor
Oxnard, CA
D
582. The Bar Association of San Francisco
By Stephanie Skaff
President
A
COMMENT:
See attached PDF.
583. Bryan Thomas
Irvine, CA
D
584. Jolyon D. Thurgood
San Francisco, CA
A
COMMENT:
I agree that the exception for nonprofit youth organizations should be removed; it is anomalous, and
makes no sense given the inclusion of sexual orientation as a protected characteristic and given the
legal status of same-sex marriage within the State of California.
585. Spencer Thurman
Fort Worth, TX
D
586. Kelton Tobler
Yucaipa, CA
D
COMMENT:
Judges have widely varying views regarding the morality of homosexual conduct, just as they do
regarding religion, which is another of the bases for discrimination addressed by Canon 2C.
Nevertheless, they may be deeply committed to equal justice, regardless of sexual orientation or
religion. Do we think a judge who is a Christian cannot administer equal justice to an atheist or a
Muslim? Similarly, a judge who believes that homosexual conduct is immoral can administer equal
justice to heterosexuals and members of the LGBT community alike.
Unlike membership in organizations, a judge's personal beliefs are invisible to the public and the
parties. Either a judge is committed to equal justice or she isn't. If she is, her beliefs and memberships
won't matter. If she isn't, the parties will never know the influence of her beliefs. Requiring her to
withdraw from membership in organizations that discriminate will only hide evidence of her beliefs.
If we accept that judges can be committed to equal justice regardless of personal beliefs, then the
question becomes the appearance of bias potentially involved in belonging to organizations that
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discriminate. Here we need to recognize that being an adult Boy Scouts of America (BSA) volunteer
is not the same as belonging to "We Hate Gays" or the "Anti-Gay Alliance." An organization whose
primary purpose has nothing to do with sexual orientation, and which discriminates regarding
membership or employment but engages in no actively anti-gay political or other activities, is not the
same as an actively anti-gay organization, with an anti-gay agenda.
Even parties who are aware that the BSA discriminates based on sexual orientation would not
reasonably assume that a judge who affiliates with the BSA is anti-gay. By far the more reasonable
assumption would be that the judge wants to give service to youth and serve as a role model for them.
I frankly believe that the proposed change to Canon 2C has little to do with any reasonable
perception of bias, and everything to do with punishing the BSA, and judges who affiliate with the
BSA, for the BSA's recent refusal to go "all the way" in eliminating discrimination. Because the BSA
has recently become more tolerant and now allows openly gay boys to participate as scouts, but has
not yet extended this tolerance to adult volunteers and employees, some want to punish them for not
going further.
I have little doubt that those who want to eliminate the exception for nonprofit youth organizations
would also like to eliminate the exception for religious organizations, if only they could. That's just
not politically feasible right now. This would be part of the step-by-step imposition of their views on
everyone else, and the reformation of society as they would like it to be.
Scouting is an important youth activity of The Church of Jesus Christ of Latter-day Saints for boys
(Cub Scouts) and young men ages 8-18. What is the difference between a judge belonging to The
Church of Jesus Christ of Latter-day Saints, which discriminates on the basis of sexual practices (not
orientation by itself), and accepting a volunteer "calling" (assignment) in the church that requires him
to affiliate with the BSA? Forbidding a Mormon judge to affiliate with the BSA is equivalent to
forbidding him to fully participate in his church.
For these reasons, I oppose the proposed change to Canon 2C. Because I am not well-informed about
official military organizations of the United States, I will not comment on that.
587. Lance Tolman
Redlands, CA
D
COMMENT:
I do not agree with the change as I believe scouts should have the opportunity to have these leaders in
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their troops.
588. Rex E. Toltschin
Palm Desert, CA
A
COMMENT:
Making these changes are one of the many important steps necessary in order to ensure we eliminate
all State sanctioned discrimination. This exception is no longer acceptable.
589. Hon. Kay Tsenin
San Francisco, CA
A
COMMENT:
I fear that in an effort to address the issue of the BSA we are throwing out a lot of other good single
sex youth organizations. For example, the Girl Scouts. The Girl Scouts are by no means the same
organization as the Boy Scouts. As a troop leader and judge and lesbian I know the Girl Scouts does
not discriminate on the basis of sexual orientation or any other basis except that its membership is
limited to girls under the age of 18. We have girls of all and no religion involved, we have girls in
wheel chairs and those struggling with developmental issues as well as GLBT and questioning youth.
Girls need to see strong, accomplished women as leaders in their troops this proposal would limit the
participation of judges and this would be a significant loss.
590. David Tucker
Riverbank, CA
A
COMMENT:
As a 77 year old former Eagle Scout, I applaud the effort to make the rules consistent. No one should
be discriminated against. Judges should not be allowed to be members of the Boy Scouts, a
homophobic organization.
591. Jan B. Tucker
Torrance, CA
A
COMMENT:
As a former Troop 325 (Arleta, California) Senior Patrol Leader and as State Director of the
California League of Latin American Citizens I urge you to support a proposal to prohibit state
judges from belonging to organizations, such as the Boy Scouts of America, which discriminate
against lesbian, gay, bisexual or transgender (LGBT) people and atheists/agnostics.
Scouts. Likewise, it bars atheists and agnostics from participation.
As you must know, there is growing acceptance of LGBT people throughout the nation. They are
now allowed to marry in 17 states, and the District of Columbia, and no less an authority than the US
Supreme Court has ruled that the federal government must recognize those marriages. As it happens,
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17 states, and the District of Columbia, also ban discrimination against LGBT people.
The Boy Scout oath, which must be taken by all Scouts, includes the pledge to be "morally straight.”
I and a growing number of Americans believe that discrimination against LGBT people and atheists
agnostics is immoral. Judges, when they join the Scouts, or serve in scouting leadership positions,
are, in effect, expressing support for that immoral policy. They are also injecting themselves into a
controversy that they may eventually have to rule on in court minimally creating an
appearance of impropriety under Canon III of the Judicial Canons. In Rotary Club of Duarte
[481 U.S. 537, 544 (1987)], which we believe was correctly decided by the United States Supreme
Court, the Boy Scouts of America filed an amicus brief in support of the right to discriminate. We
also believe that in BSA vs Dale [Boy Scouts of America, 706 A.2d 270, 275 (1998), 530 U.S. At
644] the Supreme Court wrongly decided the case just as the California Supreme Court erred in
deciding that California's Unruh Civil Rights Act did not apply to the BSA [Curran v. Mount Diablo
Council of the Boy Scouts of America, 17 Cal.4th 670, 952 P.2d 218, 72 Cal.Rptr.2d 410 (1998)].
organizations that discriminate against LGBT people, atheists and/or agnostics. I urge you to support
592. Stephen H. Tyler
Highland, CA
D
COMMENT:
The prohibition of judges from acting as scout leaders is tantamount to prohibiting judges from
participating in Jewish, Christian, Muslim or a variety of other religions because their views may be
considered consistent with the views of scouting. The proposal is absurd and in clear violation of the
First Amendment.
593. Steve Updike
Long Beach, CA
594. Shelley Van Der Bijl
A
D
COMMENT:
Eliminate this amendment proposal immediately!
I have been made aware of this senseless amendment by the leader of Troop 127 in Carmel Valley,
CA. Does our government "for the people, of the people and by the people" have nothing better to do
than disrupt the leadership of a very successful organization as the Boy Scouts of America? Larry
Hayes is an outstanding member of the parental and troop-wide leadership team, as well as a Scout
parent, and as an active member of the local civic branch of our community.
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I have included The Honorable Larry Hayes' response submitted February 28. I support him fully in
his effort to continue to be involved in our children's lives.
See row #250 for the Hayes comment.
595. Hon. John P. Vander Feer
San Bernardino, CA
D
COMMENT:
I have been advised in an email by my California Judges Association Representative, Judge Craig
Riemer, that if I wanted to express my views on a proposal to amend Canon 2C directly to the
Supreme Court Advisory Committee on the Code of Judicial Ethics, I should contact you, its Chair. If
this information is incorrect please accept my apologies.
In Judge Riemer’s email, he stated a “judge’s constitutionally guaranteed freedom of association
would be restricted” by the adoption of the proposed amendments to Canon 2C of the Code of
Judicial Ethics. He also stated, “membership in any discriminatory organization may diminish public
confidence in the objectivity of the judiciary.” I have to agree with Judge Riemer that there are
constitutional and policy implications to the proposal to amend Canon 2C. In my review of the
Invitation To Comment (SP14-02) I saw number of policy considerations discussed as to why Canon
2C should be amended; however, I did not see any consideration of any constitutional issues. Before
the California Supreme Court potentially strikes judges’ “individual rights of intimate association and
free expression,” I believe an analysis should be conducted as to whether this is permissible under the
United States and California Constitution. I also believe this analysis should be shared with judges
and justices of the State of California.
I am a Superior Court Judge for the State of California, County of San Bernardino. The views
expressed above are my own. Thank you for your consideration.
596. Griffith William Vertican
Santa Ana, CA
D
COMMENT:
This purposed change would potentially remove judges from being part of after-school clubs and
private speech and debate clubs.
Judges play a vital role in both providing feedback and mentoring the youth. Denying them the
opportunity to serve harms not only their rights, but also those of the students because it keeps them
from being taught by the most qualified. Judges are not only the most qualified to coach debate
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students, but they also make fantastic mentors for youth who are in need of guidance.
Clubs like mine, have high standards of morality- they are not anti-homosexual, but rather they are
pro-moral excellence.
What this means is we encourage youth to avoid sexual activity and instead focus their energy on
being productive members of their community.
'Academic Debate' is all about seeing both sides of an issue and allowing for divergent view points to
exist to further the market place of ideas. The purpose of Debate is allow both sides of an issue to be
heard and for students to formulate an educated choice on which side they believe to be right. Debate
operates under the belief that people should have the freedom to choose what values are best for them
personally and what should be promoted in society as a whole.
Prohibiting judges from engaging with clubs like ours, is the very antithesis of the purpose to debate,
and it runs contrary to the Freedom of Speech and Freedom of Association protected under the 1st
Amendment. Thus I stand to oppose.
597. Joseph Vinatieri
Whittier, CA
D
COMMENT:
A judge must live up to the highest ideals of the judiciary in carrying out the rule of law. to
infer/assume that a judge (or judge to be) who is associated with the BSA cannot judge impartially or
fairly is to assume that he/she is incapable of dispensing justice and upholding the rule of law
because of some alleged preconceived bias. This assumption is overt discrimination against that
judge and contrary to the very rule of law that this Council and the judiciary is sworn to uphold.
Moreover a member of the bench is completely capable and duty bound to recuse her/himself if a
question of bias is raised in a particular matter before the judge.
598. Hon. John W. Vineyard
Riverside, CA
D
COMMENT:
I am a Superior Court Judge. I am a Scoutmaster. I am an Eagle Scout. I am a Scout parent. Those
roles are not, and have never been, incompatible.
The recommendation to eliminate the Non-Profit Youth Group exception to Canon 2C is based on a
fundamentally flawed premise. I write in opposition to that recommendation because the involvement
of Judges in Scouting reflects well on the judiciary, and supports a widely respected youth
organization with a rich and unique place in American culture.
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I cannot and will not defend the discriminatory policy of the Boy Scouts of America. I strongly
oppose that policy, and I was profoundly disappointed when the Boy Scouts of America fell short of
eliminating discrimination from its program. However, I was encouraged by the significant step
taken by delegates to the BSA National Meeting that set aside the discriminatory policy as it applied
to youth members, allowing all youth, regardless of sexual orientation, to participate in Scouting. I
believe that it is only a matter of time until the policy of discrimination is eliminated entirely.
The Recommendation is Based on a False Premise
The Advisory Committee bases its recommendation on an unsupported premise and fails to recognize
the fundamental rationale for the exception.
First, the exception does not “accommodate the interests of judges who were members of or active in
the Boy Scouts of America (BSA).” It recognizes that Scouting serves and benefits youth. Every
other organization subject to Canon 2C is an adult organization in which membership serves the
interest of the member Judge. Scouting is an exception. Adult members dedicate their time and
resources for the direct benefit of young men and women in Scouting.
Moreover, the Committee’s comment that eliminating the exception “would enhance public
confidence in the impartiality of the judiciary” is unsupported and demonstrably incorrect. Scouting
is a unique youth program with a long history in the United States. The President of the United States
serves as the Honorary President of the Boy Scouts of America. Each of our branches of the military,
as well as each of the service academies, recognizes the value of Scouting and gives Eagle Scouts
credit for their training and accomplishment. Leaders in business and industry recognize the
leadership taught through Scouting and actively seek Scouts, and particularly Eagle Scouts. Colleges
and Universities give extra credit in the application process to Eagle Scouts.
On a personal level, in every employment interview I have experienced since I earned Eagle Scout at
age 15, I have been asked about that award, including my interview for appointment to the Superior
Court. Scouting has acknowledged value and a reputation that transcends the discriminatory policy
of the national organization.
Although the Boy Scouts of America is a national organization, Scouting is a local program. When I
counsel Scouts on Citizenship merit badges, the Scouts see a local Judge teaching about citizenship
in their community, nation and world. When I work with the local bar association to present a Law
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Merit Badge Day, Scouts and their parents see lawyers and judges contributing to their local
community. When I give a Scoutmaster Minute at the close of a Troop meeting, Scouts see their
Scoutmaster teaching tolerance and non-discrimination. Rather than diminishing the integrity and
perception of the bench, judicial involvement in Scouting reflects well on the judiciary.
Eliminating the Exception is Legally Indefensible
If the non-profit youth group exception is eliminated, but the religious exception remains in effect,
two problems will be created.
The religious and non-profit youth organization exceptions to Canon 2C recognize two equally
important First Amendment rights; freedom of religion and freedom of association. By eliminating
the youth organization exception, but leaving the religious exception in place, we will be elevating
one First Amendment right over another. There is no justification for such treatment. If membership
in an organization reflects poorly on the judiciary, it should not matter whether such membership is
based on religious belief. It is either inappropriate or not.
Similarly, eliminating one exception, but not the other will create situations in which two judges are
treated differently based on nothing but their religious beliefs. Several of my colleagues in Riverside
County, and many more throughout California, are members of the Church of Jesus Christ of Latter
Day Saints (“LDS”). The LDS Church has historically incorporated Scouting as its youth program
for young men. Adult members of the Church are directed to their calling as a Scout leader by their
Bishop. If a Judge is an LDS member, and his Bishop identifies his calling as Scout leadership, he
presumably may serve as a Scout leader subject to the religious exception. If so, I will be prohibited
from serving in the same position in Scouting that an LDS Judge is allowed to hold.
Such disparate treatment of similarly situated judges, based solely on their religious beliefs, certainly
will not promote confidence in the judiciary. Excepting Scouting from Canon 2C is justified based on
its focus on youth. Eliminating that exception and continuing the religious exception cannot be
justified.
The Recommendation is a Simplistic Solution to a Complex Issue
Canon 2C prohibits a judge from being a member of an organization that invidiously discriminates,
without defining that term. Many aspects of Scouting, however, are performed by non-members.
Community leaders are regularly asked to participate in Eagle Scout Boards of Review. I have been
joined on these boards of review by local business leaders, the clergy and city council members. If
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the exception is eliminated, will a Judge be permitted to participate in an Eagle Scout Board of
Review as a non-member?
Scouting also seeks non-members to serve as merit badge counselors. Non-members are actually
preferred as counselors in order to give Scouts the experience of interacting with professionals in a
wide variety of businesses and professions. May a Judge serve as a counselor for Law merit badge?
Parents may accompany Scouts on outings and camping trips, even if they are not members of the
Boy Scouts of America. As a Judge, may I go on a camping trip with my son’s Troop after I resign
my membership in the Boy Scouts of America and step down as the Scoutmaster?
The elimination of the exception does not recognize or address the complexities of Scouting and its
role in American culture and society.
The Proposed Effective Date Should Be Reconsidered
In the event that the Court eliminates the exception, please recognize that Judges that participate in
Scouting have made commitments to Scouts and the program that will need to be addressed. The
proposed effective date of August 1, 2014 would impose a hardship on many Scouting units and
youth members, and should be extended.
Scouting has been subject to an exception to Canon 2C in recognition of the unique place that
Scouting occupies in American life, culture and history, and its focus on service to youth. It is a
program that has been developing and training young leaders for over 100 years. The value of
Scouting is recognized throughout our culture. That value has not changed. Judicial participation in
Scouting is viewed positively by the general public. The non-profit youth exception to Canon 2C
should remain unchanged.
599. Joseph P Vlietstra
Upland, CA
D
COMMENT:
Argument that we are pursuing conformity with the 22 states that bar membership in organizations
that discriminate on the basis of sexual orientation has no merit since:
(1) California has implemented current version of Canon 2C since 1996 without regard to other
states.
(2) Proposal does not mention any benefits of conformity other than conformity for conformity's
sake.
(3) If 22 states consider sexual orientation a protected category, 28 states do not. Argument for
"conformity" with a selected (and, in this case, minority) group is specious.
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600. Mark Vos
Rancho Cucamonga, CA
Position
Comment
D
COMMENT:
BSA is a quasi-religious organization. It always has been. To discipline judges who support or are
members of or are affiliated with BSA is the same as doing so for practicing a religious faith. But
Boy Scouts' most controversial tenet is much milder than that of even the most mainstream religious
faiths.
Moreover, a great many scout leaders are scout leaders because their churches sponsor Scout troops.
The Church of Jesus Christ of Latter Day Saints has done so since 1913, and the Catholic Church has
done so nearly as long.
The California bench cannot be allowed to become anti-Scout without also becoming anti-religion.
I respectfully oppose the proposed rule.
601. Jurn Wagner
Worland, WY
A
COMMENT:
This gay thing is completely out of line. I cannot understand why someone has to publicly announce
their serial orientation. I really do not care...do your thing......but don't push yourself on to
heterosexuals. This very thing happened in my state "wyoming" when the gay Shepard guy pushed
himself on to two young cowboys. What a waste. A shame 2 lives ruined and 1 dead. We have the
Catholic Church cover-ups of abuse for years....who is going to monitor this whole mess...it will not
work... Once the abuse starts, it will not stop.....and the lives it will destroy....God help us.
602. Kirstin Wallace
Alamo, CA
D
COMMENT:
Discriminating against organizations structured under the laws and tenants of Judaism, Christianity,
and Islam, is not preventing discrimination.
603. Ellen Wang
Palo Alto, CA
A
604. Paul Ward
Irvine, CA
D
COMMENT:
The proposed changes regarding military and youth organization exceptions are unnecessary.
Military service is an honorable occupation for a diverse group of men and women, united not by
official US policies such as "Don't Ask Don't Tell", but by love of country and a desire to serve their
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fellowman. Whatever one thinks of US military policy and relevant US law, one should be able to
honor, respect, and associate with those who defend our country without being smeared with the
stigma of disfavored policies enacted through the political process, insofar as the group's
questionable policies are aligned with current military standards.
Before the repeal of "Don't Ask, Don't Tell", gay servicemen served their country with honor, pride,
and distinction. Yet, prior to the repeal of DADT, a gay former serviceman judge would have been
forced to disassociate from his brothers-in-arms without the military exception. This makes no sense,
yet neither would a narrow exception that allows this exemption only for gays or other minorities and
not the majority. Defending our country and representing its interests abroad is a noble occupation,
in spite of any discriminatory policies or laws. To say otherwise casts dishonor and doubt on the
service of millions of servicemen and women in our country's history.
Likewise, the removal of the exception for youth organizations is an obvious targeting of the Boy
Scouts of America, the targeting of a politically disfavored group, to eradicate their members from
the judiciary. This obviously will have a disparate impact on judges who hold certain religious
viewpoints, as BSA troops are often organized locally by religious congregations. Just as removal of
a homosexual's right to marry would constitute unconstitutional tampering, so would the removal of a
judge's right to be a member of a youth organization that, as a side note in its activities, includes a
religious viewpoint on the morality of homosexual sexual relationships. It's not their raison d'etre.
Such religious viewpoints are not necessarily motivated by animus but are often the result of
disagreements by people of goodwill who have, more typically than not, never mistreated anyone for
being gay.
There is no telling what the future holds for different Congresses, different Presidential
administrations, or the complicated intricacies of law that may result in perceived or real unjustifiable
discrimination that may inadvertently trip up individual judges as they seek to be involved in their
communities beyond the courtroom's walls in organizations that contain 99% unobjectionable
material.
For these reasons, the proposed changes should not be adopted.
605. Arlle Warren
Palm Springs, CA
A
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606. John H Warren
Santa Rosa, CA
D
COMMENT:
The BSA does a tremendous amount of good in the lives of the young men it serves. Banning judges
from serving in an organization with their sons seems unethical. Can it be demonstrated in any
manner that affiliation with the BSA has been detrimental to the judicial decisions of even one judge?
I believe the judiciary should be governed by law and not by political expediency. I will personally
lose confidence in the judicial decisions of a judiciary governed by political considerations. Was
President Obama guilty of discrimination before 2012 when he opposed same-sex marriage? Clearly
no - these are clearly matters of conscience and not of discrimination.
607. Connie Washburn
El Dorado Hills, CA
D
COMMENT:
I am deeply disturbed by this proposal and the effect it has on liming my constitutional right of
freedom to associate. Whether it be the Boy Scout of America or any other group, this would be
discriminatory.
608. Destry Washburn
Loma Linda, CA
D
COMMENT:
I oppose the changes as they will only serve to detract from the ability of good honest people to serve
their fellow man.
609. Larry Watts
Walnut, CA
D
COMMENT:
California and America does not need change - she just needs people in office that care about
Freedom, Liberty, and the American way of life.
You all might try reading the Constitution sometime and get a clue.
The BSA is the only thing left in this country that has value for our young folks.
The BSA for the most part has members with good character, good citizenship, honesty, and
integrity, these are the kinds of people that should be judges, and those that make decisions for the
American people.
We the people need to train California and the Washington DC idiots what their job is and make
them do that and stay out of everything else especially destroying the BSA the greatest thing there is
for our youth.
610. Stephanie Weaver
A
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Oceanside, CA
Position
Comment
611. We Count
D
COMMENT:
The proposal to prohibit state judges from belonging to the Boy Scouts of America on the grounds
that group discriminate against gays is ridiculous. We all have rights to believe what we believe or
think. But we should all be able to Agree on fair and equal justice for all not just gays and lesbian.
They are not the only people in this State or country.
612. Keith Weinrich
Temecula, CA
D
COMMENT:
What happened to freedom of choice?
You are alienating the very people that judge us on a daily basis by not allowing them to be a part of
society. What’s next, lock the judges behind closed doors so they have no interactions with other
human beings and expect them to understand the intricate workings that make mankind the unique
creations we all are?
I’m not going to get into my views on the hetero vs. homo sexual controversy, but I will state that if
an organization wishes to ban open sexuality in front of young people, power to them.
613. John Wells
Beaumont, CA
D
COMMENT:
Prohibiting men and women who are affiliated with the BSA from serving as judges in the state of
California is ridiculous. Furthermore, to prohibit men and women who may belong to an
organization that supports the BSA is an assumption that simply by this affiliation they will
automatically be biased against people of same sex attraction. This is not logical, it is an incorrect
conclusion. Every person has feelings about same sex attraction regardless of any affiliation they
may have.
614. Sarah West
Sacramento, CA
A
COMMENT:
Judges must adhere to a strict policy of non discrimination in order to meet out justice. But by
participating in a discriminatory organization a judge makes a statement in support of discrimination.
By closing the loophole, we make another important step toward ending discrimination.
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615. Brian Westley
Saint Paul, MN
Position
Comment
A
COMMENT:
I agree with the proposed changes; however, the listed reasons completely ignored the Boy Scouts'
religious discrimination, which is another reason to approve the change.
616. Craig White
Los Angeles, CA
A
COMMENT:
Nobody should be exempted from non discrimination requirement, especially not youth groups...
that sends the wrong message to our youth, propelling discrimination forward into our state's future!
617. Todd White
San Diego, CA
D
COMMENT:
This law is discriminatory in its face.
The law forbids discrimination of any kind.
This law is therefore clearly forbidden.
618. Paul Wiese
Vacaville, CA
D
COMMENT:
I respect people who feel that homosexual activity is fine. I also respect people who feel that it is not
okay. I feel the court should take a similar approach.
The court is now proposing to discriminate against people who believe such activity is not okay
(incidentally the majority of the people in this democracy). I think such an action on the part of the
court would be unfortunate, and I strongly disagree with the proposed action.
619. Char Williams
Ventura, CA
D
COMMENT:
The proposed rule erodes both the free exercise of religion and freedom of speech of those who
desire to serve as judges. The free exercise of religion encompasses the right to choose beliefs, as
well as to choose affiliations and associations to practice those beliefs. Religious freedom is not just
for those who belong to a formal, religious organization. There are many religious individuals who
share the same beliefs as formal religions, but who are not a member of any particular denomination.
These individuals have a right to express themselves with others who share their beliefs, through
participation in private, nonprofit organizations who share their values.
Additionally, I know several local churches (of different denominations) that utilize local, nonprofit
organizations (like Boy Scouts of America) as an integral part of their church youth groups. Barring
judges from participating in such nonprofit youth groups would prohibit members of these
denominations who serve as judges from serving as church youth leaders in their churches, because
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their churches integrate those non-profit youth groups into their church youth programs.
620. Court Williams
Santa Barbara, CA
D
COMMENT:
I have known judges in Santa Barbara County who have been participants in scouting and who have
been great role models for the boys. It would be a shame to prohibit the association of good men and
women from participating in non-profit groups that happen to be affiliated or sponsored by religious
groups.
621. Hon. Gerald A. Williams
Glendale, AZ
D
COMMENT:
I was not aware of the proposed amendment to California’s judicial ethics code until this afternoon
and I apologize if I missed the scheduled public comment period. In my prior job, I was the staff
attorney for the Arizona Commission on Judicial Conduct. I am currently a limited jurisdiction court
judge.
Although I understand and am sympathetic to the arguments in support of a ban, I oppose it because
it will cause a further backlash against the judicial branch and will reinforce the belief that judges
have a politically liberal agenda that is out-of-touch with mainstream America. The proposed ban
also unfairly attacks the Boy Scouts of America, which continues to be the single best organization
for building character among young men.
I have been involved with the Boys Scouts at every level. In my youth, I was an Eagle Scout. As an
adult, I have volunteered as a counselor for Law Merit Badge and as a district leader. Please look at
the requirements for Law Merit Badge, as well as the requirements for Citizenship in the Community,
Citizenship in the Nation, and Citizenship in the World, and ask yourself whether judges
participating in a group that encouraged completion of those requirements enhances public
confidence in the judicial branch. The reality is that we need more “Boy Scouts” in the judicial
branch, not less.
622. Richard Willis
San Diego, CA
A
COMMENT:
I support a ban on judges belonging to groups that discriminate on the basis of race, gender, religion
and sexual orientation. Eliminate the "exception" for non-profit youth groups. It is blatantly targeted
to sustain a preexisting bias.
At 73, I have spent a lifetime enduring the senseless discrimination fundamentally based on religious
opinion and not reason. It disturbs me to think that judges would participate in such practices and
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then, potentially, decide cases where an objective reasoned view is required.
"Our civil rights have no dependence on our religious opinions, any more than our opinions in
physics or geometry." Thomas Jefferson
"The way to see by faith is to shut the eye of reason" Benjamin Franklin.
623. Brett Wilson
Calimesa, CA
D
COMMENT:
It is wrong on all levels! And if these people who have proposed this issue, feel they might be dealt
with unjustly, are being unjust to those they are proposing it against. This is a sad world a few are
making for the rest of us. This is tyranny
624. Jennifer Wilson
Provo, UT
D
625. Theodore L. Wilson
Dana Point, CA
D
COMMENT:
Theses quote should be seriously taken into consideration when considering a proposed Amendment
to Canon 2C of Judicial Ethics/SP14:
"Of all the dispositions and habits which lead to political prosperity, religion and morality are
indispensable supports. In vain would that man claim tribute to patriotism who should labor to
subvert these great pillars of human happiness -- these firmest props of the duties of men and
citizens. . . . reason and experience both forbid us to expect that national morality can prevail in
exclusion of religious principles."
`~ George Washington
“We have no government armed with power capable of contending with human passions unbridled
by morality and religion. Our Constitution was made for a moral and religious people. It is wholly
inadequate for the government of any other.”
~ John Adams
626. Windsor Performing Arts Academy By
Heather Cullen
Director
D
COMMENT:
Where in the constitution does it say you can BAN a judge because of his/her membership to
anything? This is bullying at its worst. The Boy Scouts of America has taught young men to be
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Windsor, CA
627. Janet Windz
GrassValley, CA
Position
Comment
reliant, self sufficient, kind, courteous and environmentally protective...DO NOT Ban our judges who
have been scouts...This is WRONG.
A
COMMENT:
I urge you to support a proposal to prohibit state judges from belonging to organizations,
such as the Boy Scouts of America, which discriminate against lesbian, gay, bisexual or
transgender (LGBT) people.
The Boy Scouts recently approved letting LGBT young people, under the age of 18, belong
to the Boy Scouts, but it still prohibits older LGBT people from serving in leadership
positions in the Scouts.
As you must know, there is growing acceptance of LGBT people throughout the nation.
They are now allowed to marry in 17 states, and the District of Columbia, and no less an
authority than the US Supreme Court has ruled that the federal government must
straight". I and a growing number of Americans believe that discrimination against LGBT
people is immoral. And Judges, when they join the Scouts, or serve in scouting leadership
positions, are, in effect, expressing support for that immoral policy.
For all these reasons, I believe judges should not associate themselves with the Boy
Scouts or other organizations that discriminate against LGBT people. I urge you to support
628. William Winfield
Oxnard, CA
D
COMMENT:
It is not appropriate to limit ability of Judges to serve based on their membership in the BSA. The
BSA has a constitutional right to its position. Leaders in the BSA are not required to agree with that
position, and many do not. Denying a BSA member without regard to his or her personal views is
not appropriate. Denying a Judge the right to participate in or support the BSA would interfere with
First Amendment Rights of free exercise and expression.
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629. Win WithWinston
By Alma Marie Winston
Shingle Springs, CA
Position
Comment
A
COMMENT:
As advocates for equal rights, my spouse, Charel Winston, and I, ALMA MARIE WINSTON,
candidate for Governor in California 2014, we are very disappointed in the judicial determination to
allow judges to participate in any organization that discriminates against sexual orientation or any
other denomination basis.
We heartily submit to you that discrimination on the basis of gender, sexual orientation, race,
religion, age, or disability, such as they are protected and guaranteed by The United States
Constitution, are a violation of federal and state EQUAL RIGHTS PROTECTION and must be
rectified, as proposed: SP14-02.
630. Jeffrey Winter
San Diego, CA
D
COMMENT:
Equality in beliefs and First Amendment protections must be afforded to everyone. I understand the
need for an unbiased jurist. I try cases regularly and recognize bias all the time. However, this form
of restriction is one-sided as those proposing it do not propose no participation in their organizations
that discriminate against those who do not believe the same way they do.
631. Lisa Winter
San Diego, CA
D
632. Withheld by Request
D
COMMENT:
The proposed Amendment to Canon 2C to preclude a judicial officer from being a member of a
nonprofit youth organization (specifically Boy Scouts) is overbroad, lacks clarity and infringes upon
the fundamental constitutional rights of a judicial officer to parent. The proposed rule is not narrowly
tailored to address the stated ethical concern and is not prompted by any recent change in the law.
Finally, the proposed exception to permit a member of a judicial officer’s family to continue to be a
member of a nonprofit youth organization does not cure the fact that the proposed restriction is
overbroad. As a judicial officer who is still raising minor children, the proposed rule significantly
curtails my ability to parent.
I have served as a judicial officer for the past eight years and am the parent of a boy who is and has
been involved with Boy Scouts for the past ten years. He has earned the rank of Star Scout and
intends to pursue the highest rank of Eagle Scout. It is not easy. As his parent, I support him in this
endeavor and volunteer my time to work on service projects, supervise Troop meetings, campouts,
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and serve on the Troop Committee. As a former attorney and judicial officer, I have been asked to
serve as a merit badge counselor and teach scouts about the law. As a community leader, I have been
asked to speak to hundreds of scouts about the role and responsibilities of a community leader. I
participate with Boy Scouts for my son. I help other kids in Boy Scouts because I care about our kids
and I am a community leader.
633. Chris Wolf
Redlands, CA
D
COMMENT:
I am not a judge, nor am I affiliated with any law firm, but feel it is my duty to comment on this
proposal as a concerned citizen and as a former boy scout and who has sons that are active members
of a Boy Scouts of America troop. I don't understand what this world is coming to. My understanding
is that this proposed code of ethics change, SP14-02, will prevent a judge from membership or
affiliation with the Boy Scouts of America. If this is the case it seems against every idea of freedom
and diversity that our great country is founded on. I don't see how association with this organization,
with holds such high moral and ethical standards, would result in anything but positive by associating
with the kind of organization that rallies around the ideas of God, country, community responsibility,
service to others, and all the other skills that have help build the type of leadership that has donned
several of our nations presidents. So why the personal and unjust attack on an organization which
does not actively preach or even insinuates that people should be discriminated against for any
reason. This idea of discrimination of any kind is not part of the Boy Scouts of America motto, it is
not part of its creed, not part of its promise, not part of its mission. And yet it has been targeted as of
late for keeping and holding to the traditions and character building purposes that have existed for
hundreds of years. I feel it is an unfair and baseless accusation that the Boy Scouts of America have
been accused with, and has become a target of the extremist groups which have an agenda to destroy
this wholesome and character building organization. I feel it is my duty to stand up and be heard and
hope that my comments will be given a voice. I find this an outrage and am strongly against any
organization, group or proposition that strives to take away the liberties and freedoms which God has
granted us. Life, Liberty and the Pursuit of happiness.
634. Women's Law Group
By Rosa Armesto
Attorney
Miami Beach, FL
D
COMMENT:
You would be forcing judges to limit their involvement in their children's extra-curricular activities,
such as Boy Scouts.
635. Stephen Wood
D
COMMENT:
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Camarillo, CA
Position
Comment
A colleague of mine, Mark Lester, said it best already in a comment to you regarding this proposal.
His statements are as follows:
“Boy Scouts of America is about raising young boys to become productive, self-reliant and lawabiding young men. Sexual orientation has nothing to do with any part of the training or core beliefs
and is not mentioned anywhere in the Scout Law, Scout Oath, Scout Motto or Scout Slogan.
“It is completely hypocritical of the court to permit judges to serve "ethically" who belong to a
religious organization that openly discriminates on the basis of sexual orientation on the grounds of
religious freedom, yet ban otherwise qualified persons from serving as a judge because a national
policy of a nonprofit youth organization which they don't personally follow is offensive to court.
Freedom of association is equally protected under the 1st amendment as is freedom of religion.
“The test should be whether or not a judge actually discriminates in the performance of his/her duties
on the bench, not simply blanket disqualification because a part of an association to which he/she
belongs has an evolving policy that is not yet politically correct.”
636. Steven Wood
Walnut Creek, CA
637. Kathleen Woolsey
Yucaipa, CA
D
638. Karl J. Worsham
Brea, CA
D
D
COMMENT:
First amendment religious liberty and association.
COMMENT:
The values of the BSA are ones of honor to God, family and country, of integrity, commitment and
standards. This is a foundation that helps make a man a better person overall and thus, a better seated
judge. I strongly disagree with the proposal to ban any man as a judge if he has an affiliation with
the BSA. I can see no valid reason for this action.
COMMENT:
My concern about this proposal is twofold. First, by excluding members or affiliates of BSA from the
judiciary you endanger the diversity of the bench, which in some small way should reflect the
populous of the state. Thousands, even millions, of men and women in the State of California are
affiliated with the BSA because of all of the good that it does. To punish all of them for a moral
belief of the organization is to disregard all of the good that comes from the BSA organization.
Second, I am concerned that by excluding BSA members or affiliates from the bench the door is
opened to discrimination by the State of California along religious lines. It seem very possible that a
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similar proposition could be made in the future to prohibit members of the Catholic Church, members
of the Church of Jesus Christ of Latter-day Saints, or members of various protestant religions on the
grounds that they believe homosexuality is morally wrong. This would surely be an infringement of
the Establishment Clause on the US Constitution.
In summary, in addition to this setting a dangerous precedent it seems to fly in the face of ideals of
the judiciary to believe that a judge cannot do her sworn duty to uphold the law and Constitution
objectively despite personal biases. All judges on either side of the political aisle or from differing
cultural or religious background come to the bench with personal views and biases and this is the
very reason there is a vetting and approval process, not to determine if those views or beliefs are to
our liking, but to determine if the candidate can be objective in dispatching her duties. This should be
the qualification that makes or breaks a judicial nomination, nothing else.
639. Greg Wright
Chico, CA
D
COMMENT:
This is a very narrow minded reaction and an affront to personal religious beliefs. It is beneficial to
society to have a wide range of opinions and beliefs in a societal forum.
640. Steven Wright
Yucaipa, CA
D
COMMENT:
I am concerned by the political nature of this proposal, and feel we're better off with those who have
promised to be trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave,
clean, and reverent.
641. Charlie Wu
Orange, CA
D
COMMENT:
Barring Judges from membership, or playing leader role in organization like Boy Scouts of America
is not going to help establish impartiality. They are supposed to be judging case based on objective
evidence and how the law would apply in such case. Due to this, I do not agree with the proposed
change in SP14-02.
642. Hon. Carol Yaggy
San Francisco, CA
A
643. Allan Yannow
San Francisco, CA
D
COMMENT:
I do not agree with the proposed changed to Canon 2C. A judge's participation in the Boy Scouts
should be commended not barred. The Boy Scouts provide a positive environment for boys, many of
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Comment
whom are lacking a male role at home. Many boys have no other positive outlet.
It is hard to imagine why participating in the Boy Scouts would create the appearance of partiality.
Normally litigants don't investigate the board memberships of judges they appear before. Nor would
anyone but the most hypersensitive find anything wrong with membership in the Boy Scouts.
Any reasonable person knows that there are many other ways to assess a judge's partiality, especially
when the vast majority of cases have nothing to do with an individual litigant’s sexual orientation.
Also if judges are free to be on the boards of colleges like Smith, Mt. Holyoke, or Wabash or all of
which discriminate lawfully by sex, why can't they be involved with the Boy Scouts?
The proposed changes serve a political agenda and will harm the boys who need the scouts the most.
Judicial ethics should not be a vehicle to further a political agenda
These comments are my own views and do not necessarily represent the views of my employer or
any organization with which I am affiliated.
644. Alec Yarbrough
Thousand Oaks, CA
D
COMMENT:
As an Eagle Scout, a member of the State Bar of California, and an individual who supports equality
for homosexuals and same-sex marriage, I find the elimination of the exception for nonprofit youth
organizations under SP14-02 repugnant. The Boy Scouts of America is an organization that provides
positive and constructive learning experiences to teach young people about many areas of life,
including the outdoors, politics, the law, and government. The focus of the Boy Scouts of America is
its youth members. Further, the Membership Standards of the Boy Scouts of America specifically
provide as follows: “No youth may be denied membership in the Boy Scouts of America on the basis
of sexual orientation or preference alone.” I urge the Supreme Court Advisory Committee to look at
the most important issue here – the youth. Prohibiting judges from holding membership in the Boy
Scouts of America will only deprive the youth of a richer experience and perspective as such youth
will no longer have those individuals astute enough to be judges as leaders and mentors.
Further, I find it beyond hypocritical that there is an exception for religious organizations, including
those that explicitly oppose homosexuality and even campaign against same-sex marriage. The
religious organization exception also allows judges to hold membership in organizations that have
taken proactive measures to conceal child sexual abuse crimes on multiple occasions. Thus, if the
281
SP14-02
A
Commentator
Position
Comment
amendment is passed, a judge will have the ability to be an active member of a religious group that
actively campaigns against same-sex marriage and/or actively conceals child sexual abuse crimes by
its leaders. However, a judge will not be able to be a member of the Boy Scouts of America – a
group that builds character and provides constructive learning experiences to young person’s without
regard to their sexual orientation; a group that “does not proactively inquire about sexual orientation
of employees, volunteers, or members…”
The proposal under SP14-02 strikes me as more of a politically charged measure and less about being
sure judges act in a non-discriminatory manner without bias in the performance of her or his duties
on the bench. Amending the Code of Judicial Ethics, as proposed under SP14-02, will not result in a
more fair, just, impartial, and ethical judiciary; it will only deprive young persons of the knowledge,
experience, and mentorship otherwise provided by judges no longer able to be members of the Boy
Scouts of America.
645. Jan Yarbrough
Thousand Oaks, CA
D
COMMENT:
“As the father of two Eagle Scouts, and an individual who supports equality for homosexuals and
same-sex marriage, I find the elimination of the exception for nonprofit youth organizations under
SP14-02 repugnant. The Boy Scouts of America is an organization that provides positive and
constructive learning experiences to teach young people about many areas of life, including the
outdoors, politics, the law, and government. The focus of the Boy Scouts of America is its youth
members, and creation of future leaders. Further, the Membership Standards of the Boy Scouts of
America specifically provide as follows: “No youth may be denied membership in the Boy Scouts of
America on the basis of sexual orientation or preference alone.” I urge the Supreme Court Advisory
Committee to look at the most important issue here – the youth. Prohibiting judges from holding
membership in the Boy Scouts of America will only deprive the youth of a richer experience and
perspective as such youth will no longer have those individuals astute enough to be judges as leaders
and mentors.
Further, I find it beyond hypocritical that there is an exception for religious organizations, including
those that explicitly oppose homosexuality and even campaign against same-sex marriage. The
religious organization exception also allows judges to hold membership in organizations that have
taken proactive measures to conceal child sexual abuse crimes on multiple occasions. Thus, if the
amendment is passed, a judge will have the ability to be an active member of a religious group that
actively campaigns against same-sex marriage and/or actively conceals child sexual abuse crimes by
282
SP14-02
A
Commentator
Position
Comment
its leaders. However, a judge will not be able to be a member of the Boy Scouts of America – a
group that builds character and provides constructive learning experiences to young persons without
regard to their sexual orientation; a group that “does not proactively inquire about sexual orientation
of employees, volunteers, or members…”
The proposal under SP14-02 strikes me as more of a politically charged measure and less about being
sure judges act in a non-discriminatory manner without bias in the performance of her or his duties
on the bench. Amending the Code of Judicial Ethics, as proposed under SP14-02, will not result in a
more fair, just, impartial, and ethical judiciary; it will only deprive young persons of the knowledge,
experience, and mentorship otherwise provided by judges no longer able to be members of the Boy
Scouts of America.
The Boy Scouts of America was chartered by Congress in 1916, recognized by the people for the
people, for all the people.
646. Curtis A Yates
Orange, CA
D
647. Andrew Yee
Whittier, CA
D
COMMENT:
On behalf of myself and Kevin Lewis, JD, we urge rejection of the proposal to amend SP14-02 to
283
SP14-02
A
Commentator
Position
Comment
648. John Yphantides
Escondido, CA
D
649. Angela Zeman
Simi Valley, CA
D
COMMENT:
Please do not pass this! Judges that are affiliated with the Boy Scouts of America are often fine,
upstanding citizens who love their country. If this passes, you are ostracizing a large group of people
who have worked hard to teach youth the value of community service, caring for others, working
hard, being honest, and the list goes on. Isn't that the kind of judge you would want before you if you
were in a trial?
650. Monica Zollinger
Redlands, CA
D
COMMENT:
284
Row 9 Comment
April 15, 2014
VIA EMAIL
Supreme Court Advisory Committee
on the Code of Judicial Ethics
Attn: Invitations to Comment
Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, California 94102
[email protected]
Re:
Proposed Amendment to Canon 2C of the California Code of
Judicial Ethics
Dear Honorable Members of the Committee:
We, the 104 undersigned California attorneys, write to alert this honorable
committee of serious constitutional and public policy problems with SP14-02, the
proposed amendment to Canon 2C of the California Code of Judicial Ethics
(hereinafter, the “Proposal”).
The Proposal creates an unconstitutional test for public office, threatens the
constitutional rights of California judges, and states unabashedly that it is designed
to punish the Boy Scouts of America by prohibiting California judges from
participating in that group’s activities. In addition, the Proposal has additional
wide-ranging and deleterious implications for other youth organizations, including
many religious organizations. If adopted, the Proposal will prevent judges not just
from associating with the Boy Scouts, but also with many religious organizations in
California. For these reasons, the Committee should reject the Proposal.
I.
The Proposal Creates an Unconstitutional Test for Public Office.
By prohibiting California judges from participating in nonprofit youth
organizations that select members and leaders based on shared beliefs, the Proposal
will effectively disqualify many current and potential California judges from holding
public office, which is an unconstitutional test for public office.
Article VI of the United States Constitution prohibits the kind of test created
by the Proposal. It says that all “judicial Officers, both of the United States and of
the Several States, shall be bound by Oath or Affirmation, to support this
Members of the Committee
April 15, 2014
Page 2 of 10
Constitution; but no religious Test shall ever be required as a Qualification
to any Office or public Trust under the United States.” (U.S. Const., art. VI
[emphasis added].) The prohibition on tests for public office extends beyond just
religious tests to any test that would disqualify someone from public office beyond
the requirement that she swear to support the Constitution. (See Bond v. Floyd
(1966) 385 U.S. 116, 135-36 [noting oath provision of Article VI is constitutional, but
holding Georgia violated legislator’s First Amendment rights by claiming he broke
that oath and should have been removed from office for criticizing government
policy].) This means that even if a judge holds personal views that conflict with one
of the party’s positions in a case, she is not required to recuse herself from the case
because Article VI prohibits that type of test for judicial office. (See Feminist
Women’s Health Ctr. v. Codispoti (9th Cir. 1995) 69 F.3d 399, 400-01 (Noonan, J.)
[ruling that Catholic Ninth Circuit judge was not required to recuse herself from
case brought by advocates of abortion].)
Similarly, Article XX, section 3 of the California Constitution requires “public
officers and employees,” including “judicial” officers to take an oath that swears
support and defense of the United States and California constitutions. (Cal. Const.,
art. XX, § 3.) At one time, Article XX also required a public official to swear that he
is not a member of and will not advocate or become a member of an organization
that advocates the overthrow of the government. (Id.) But nearly fifty years ago, the
California Supreme Court, following the lead of the United States Supreme Court,
declared that provision of Article XX, section 3 to be unconstitutional. (Vogel v. Los
Angeles Cnty. (1967) 68 Cal. 2d 18, 26; see also Elfbrandt v. Russell (1966) 384 U.S.
11; Keyishian v. Bd. of Regents of Univ. of State of N.Y. (1967) 385 U.S. 589.)
Indeed, as the Vogel Court pointed out, the oath was an unconstitutional test that
rested on “the doctrine of guilt by association.” (Vogel, 68 Cal. 2d at 23.)
The Proposal rests on a similar doctrine of guilt by association. It prohibits a
judge from participating in a nonprofit youth organization if that organization
decides that members and leaders must share the organization’s core beliefs. A
judge who now holds or could hold similar personal beliefs outside her chambers,
would be barred from participating in such organizations under the Proposal. This
type of belief-based and associational test violates Article VI of the United States
Constitution and California law. (See Vogel, 68 Cal. 2d at 26; Feminist Women’s
Health Ctr., 69 F.3d at 400-01.) For this reason alone, the Committee should reject
the Proposal.
II.
The Proposal Violates the Constitutional Rights of California Judges.
California law sets only a few requirements to hold judicial office. A person is
ineligible to be a judge unless for ten years immediately preceding selection, he or
she has been a member of the State Bar or served as a judge of a court of record in
April 15, 2014
Page 3 of 10
the State. (Cal. Const., art. VI, § 15.) Once in office, judges must comply with the
Code of Judicial Ethics. (Cal. Const., art. VI, § 18(m).) While the Code governs the
conduct of judges both on and off the bench, it is subordinate to the United States
Constitution. (U.S. Const., art. VI [Supremacy Clause].)
Canon 2C prohibits a judge from holding “membership in any organization
that practices invidious discrimination on the basis of race, sex, gender, religion,
national origin, ethnicity, or sexual orientation.” (Cal. Code Jud. Ethics, canon 2C.)
The current exception to Canon 2C, which permits judges to be members of
“nonprofit youth organizations” that exercise their First Amendment associational
right to require leaders to affirm their core beliefs and values, was intended to
“accommodate the interests of judges who were members of or active in the Boy
Scouts.” (Proposal at 2.) The removal of this exception in Canon 2C will violate the
First Amendment rights of speech and association for California judges, place an
unconstitutional condition on public employment, and require judges to swear an
unconstitutional loyalty oath.
A.
The Proposal Denies Judges the Right to Free Association
California should not punish people, even judges, for exercising their First
Amendment rights to freedom of speech and association. The current Advisory
Committee Commentary to Canon 2C acknowledges that barring judges from
participating in certain organizations will violate these rights. (See Cal. Code Jud.
Ethics, canon 2C, advisory committee commentary [“Membership in nonprofit youth
organizations is not barred to accommodate individual rights of intimate association
and free expression.”].) The Proposal would subjugate these constitutional rights to
fleeting public policy concerns. The U.S. Constitution demands more respect.
“The First Amendment’s protection of association prohibits a State from
excluding a person from a profession or punishing him solely because he is a
member of a particular political organization or because he holds certain beliefs.”
(Baird v. State Bar of Ariz. (1971) 401 U.S. 1, 6 [citing cases].) Thus, “[w]hile the
law is free to promote all sorts of conduct in place of harmful behavior, it is not free
to interfere with speech [or association] for no better reason than promoting an
approved message or discouraging a disfavored one, however enlightened either
purpose may strike the government.” (Hurley v. Irish-Am. Gay, Lesbian & Bisexual
Grp. of Boston (1995) 515 U.S. 557, 579.)
It makes no difference that judges are public employees. It is axiomatic that
“public employees do not surrender all their First Amendment rights by reason of
their employment.” (Garcetti v. Ceballos (2006) 547 U.S. 410, 417.) When “a citizen
enters government service, the citizen by necessity must accept certain limitations
on his or her freedom,” (id. at 418) but the First Amendment still protects the right
April 15, 2014
Page 4 of 10
of public employees to speak as citizens on matters of public concern (Pickering v.
Bd. of Educ. of Twp. High Sch. Dist. 205 (1968) 391 U.S. 563). These doctrines apply
with equal force to the judiciary.
To be sure, in Republican Party of Minnesota v. White (2002) 536 U.S. 765,
the U.S. Supreme Court held that judges and judicial candidates retain First
Amendment rights to speak, even in light of the desire for judicial impartiality.
Impartiality in this sense may well be an interest served by the
announce clause, but it is not a compelling state interest, as strict
scrutiny requires. A judge’s lack of predisposition regarding the
relevant legal issues in a case has never been thought a necessary
component of equal justice, and with good reason. For one thing, it is
virtually impossible to find a judge who does not have preconceptions
about the law. As then-Justice REHNQUIST observed of our own
Court: “Since most Justices come to this bench no earlier than their
middle years, it would be unusual if they had not by that time
formulated at least some tentative notions that would influence them
in their interpretation of the sweeping clauses of the Constitution and
their interaction with one another. It would be not merely unusual, but
extraordinary, if they had not at least given opinions as to
constitutional issues in their previous legal careers
(Id. at 777-78.) If judges retain the right to speak freely on legal issues that may
come before their courts, they also have the right to associate freely in their private
lives.
But the Proposal will prohibit judges from exercising these basic freedoms by
joining or merely participating in nonprofit youth organizations that choose to select
members and leaders on the basis of shared beliefs. Judges will not only be forced to
disassociate with the Boy Scouts, but due to the vague terminology already
contained in Canon 2C may also be required to stop participating in the activities of
a host of other organizations that work with California’s youth.
The Proposal justifies this change under the guise of potential judicial
impropriety, but in reality the Proposal has a discriminatory motive. It specifically
targets the Boy Scouts and their activities, labels them “discriminatory,” and seeks
to punish that organization for exercising its constitutional right to freedom of
association. (Proposal at 4.) The Proposal ignores that many activities of judges
outside their chambers could indicate impartiality and impropriety. Will the next
proposal ban judges from eating in restaurants, buying certain cars, or wearing
certain clothes? Surely restaurants, car dealerships, and clothiers come before
California’s courts and knowing that judge patronizes those entities could create
April 15, 2014
Page 5 of 10
impartiality and impropriety (especially, for good service). Worse yet, will the next
proposal ban judges from reading certain books for fear that they may adopt views
inconsistent with popular orthodoxy?
These examples may appear ridiculous, but they illustrate Proposal’s slippery
slope. California judges deserve more respect. We can trust that if they have
personal preferences and associations, those will not intrude into court proceedings,
and if they do, there are mechanisms for dealing with such impropriety. After all,
judges pledge to support and defend the United States and California constitutions
(Cal. Const., art. 20) and to promote public confidence in the integrity and
impartiality of the judiciary (Cal. Code Jud. Ethics, canon 2A). But in doing so, they
should not be forced to abandon the constitutional rights they pledged to defend.
B.
The Proposal Places an Unconstitutional Condition on State
Judgeships
The Proposal also places an unconstitutional condition on judges as public
employees. The U.S. Supreme Court has “said in a variety of contexts that ‘the
government may not deny a benefit to a person because he exercises a
constitutional right.’” (Koontz v. St. Johns River Water Mgmt. Dist. (2013) 133 S. Ct.
2586, 2594; see also Perry v. Snidermann (1972) 408 U.S. 593 [holding public college
would violate professor’s free speech if it declined to renew his contract because he
was an outspoken critic of the college’s administration].)
As the Court restated last term, the government “may not deny a benefit
[such as public employment] to a person on a basis that infringes his
constitutionally protected . . . freedom of speech even if he has no entitlement to
that benefit.” (Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc. (2013) 133 S.
Ct. 2321, 2328 [citation and quotation marks omitted].) If the government is
providing money to an organization, it cannot require that organization to adopt a
particular message on an issue of public concern. (See id. at 2330 [“By demanding
that funding recipients adopt—as their own—the Government’s view on an issue of
public concern, the condition by its very nature affects protected conduct outside the
scope of the federally funded program.”] [citation omitted].) In the same way, if the
government is providing someone with a job—even a judgeship—it cannot require
that person to adopt a particular viewpoint outside the workplace.
The Proposal also recalls efforts by state governments last century to impose
loyalty oaths on employees and professions regulated by the states. In the 1950s
and 1960s, this country experienced a widespread effort to require public
employees, especially those employed by educational institutions, to swear loyalty
oaths to the state and reveal groups with which they associated. (Connick v. Myers
(1983) 461 U.S. 138, 144.) The Supreme Court roundly rejected those efforts as
April 15, 2014
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infringing the fundamental liberties of speech and association. (See Wieman v.
Updegraff (1952) 344 U.S. 183 [holding state cannot require employees to establish
loyalty by denying past affiliation with Communists].)
The bar was not exempt from these unfortunate tactics. In Baird v. State Bar
of Arizona, the Supreme Court held that the State Bar of Arizona violated the First
Amendment by requiring bar applicants to state whether they had ever been a
member of the Communist Party or part of an organization that advocated the
overthrow of the government. (401 U.S. 1.) The Court held that the First
Amendment protected Sara Baird from having to answer that question, (id. at 8)
because the “First Amendment’s protection of association prohibits a State from
excluding a person from a profession or punishing him solely because he is a
member of a particular political organization or because he holds certain beliefs.”
(Id. at 6; see Cole v. Richardson (1972) 405 U.S. 676, 680 [“neither federal nor state
government may condition employment on taking oaths that impinge on rights
guaranteed by the First and Fourteenth Amendments respectively, as for example
those relating to political beliefs”].)
One may argue, as the Proposal does, that there is “much historical
precedent” for the removal of nonprofit youth organizations from the exemption to
Canon 2C because other states have no such exemption. (Torcaso v. Watkins (1961)
367 U.S. 488, 490.) But as the Court stated in Torcaso, there were “wise and
farseeing men . . . who spoke out against test oaths and all the philosophy of
intolerance behind them.” (Id.) The Proposal is rooted in intolerance for judges who
may have personal views different from that of their peers. It seeks to punish those
judges who, for religious or conscience reasons, choose to join nonprofit youth
organizations that promote certain beliefs and standards. In doing so, it violates
judges’ constitutional rights.
III.
The Proposal Indicates Animus Not Only Against the Boy Scouts, But
Also Against California Judges with Deeply Held Religious Beliefs.
The Proposal resembles “discriminations of an unusual character,” which can
demonstrate an “improper animus or purpose” and are “obnoxious” to the
Constitution. (United States v. Windsor (2013) 133 S. Ct. 2675, 2692-93.) Indeed, it
is evident from the text of the Proposal that the “avowed purpose and practical
effect of the [amendment] here in question [is] to impose a disadvantage, a separate
status, and so a stigma upon all who” participate in nonprofit youth organizations
that embrace their religious liberty and free association to set qualifications for
membership and leadership. (Id. at 2693.)
The Proposal disables judges from participating in any nonprofit youth
organization that exercises these core constitutional liberties. In fact, it is troubling
April 15, 2014
Page 7 of 10
that the branch of government charged with providing equal justice under the law
is putting “a thumb on the scales” and placing public policy interests above
constitutional rights. (Id.) Of course, judges who participate in groups that
liberally open their ranks to anyone, without concern for consistency of belief or
message, are not affected by this Proposal. But judges who do participate in groups
who restrict membership and leadership for expressive or religious reasons are now
deemed unethical and unfit for office, which demonstrates that the purpose of the
Proposal is to “impose inequality.” (Id. at 2694.) In other words, the Proposal
“imposes a special disability” upon judges who share the beliefs of the Boy Scouts or
other youth organizations and forbids them “the safeguards that others enjoy or
may seek without constraint.” (Romer v. Evans (1996) 517 U.S. 620, 631.) The
Proposal also sends the wrong message to children participating in nonprofit youth
organizations—a message that public officials do not fully enjoy our cherished
constitutional rights of freedom of religion, speech, and association.
IV.
The Proposal Will Have Wide-Ranging and Ill-Advised Effects on a
Varity of Nonprofit Organizations
The Proposal will have a devastating impact on many nonprofit youth
organizations in California, besides the Boy Scouts, who benefit immensely from the
participation of judges. The Code of Judicial Ethics defines “nonprofit youth
organization” as “any nonprofit corporation or association, not organized for the
private gain of any person, whose purposes are irrevocably dedicated to benefiting
and serving the interests of minors and that maintains its nonprofit status in
accordance with applicable state and federal tax laws.” (Cal. Code Jud. Ethics,
terminology.) Numerous organizations fit that description. In fact, the California
tax code identifies many. (See Cal. Rev. & Tax. Code § 6361(b)(3) [listing
organizations like “Little League, Bobby Sox, Boy Scouts, Cub Scouts, Girl Scouts,
Campfire, Inc., . . . Boys’ Clubs, Girls’ Clubs” and others].)
In addition to these groups, many more nonprofit youth organizations will
suffer from the loss of judges if they recognize distinctions based on any of the
characteristics listed in Canon 2C. Among others, many venerable and longstanding religiously-based youth ministries and several religious-based youth sports
associations will also likely suffer. Such organizations exist to inculcate the
organizations’ religious beliefs in the youth they serve. These organizations
typically require their leaders, teachers, and others responsible for carrying out
their religious missions to share the organizations’ religious beliefs. The removal of
the exception for “nonprofit youth organizations” from Canon 2C will severely and
negatively impact religious organizations. Even though the Proposal maintains the
ability of judges to participate in religious organizations, the deletion of the
exception for “nonprofit youth organizations” threatens the participation of judges
in any such organization, whether religious or not. Moreover, the removal of the
April 15, 2014
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exception for nonprofit youth organizations portends a questionable future for the
exception for religious organizations.
The Boy Scouts and all other nonprofit youth organizations have a
constitutional right to adopt membership and leadership policies that are consistent
with their missions and values. As the U.S. Supreme Court has said, “Freedom of
association would prove an empty guarantee if associations could not limit control
over their decisions to those who share the interests and persuasions that underlie
the association’s being.” Democratic Party v. Wisconsin ex rel. La Follette (1981) 450
U.S. 107, 122 n.22. And the Supreme Court has also held that the First Amendment
protects the Boy Scouts’ policy requiring leaders to comply with the Scout Oath and
the values the Boy Scouts seeks to instill in young men. Boy Scouts of America v.
Dale (2000) 530 U.S. 640, 659.
Nonprofit youth organizations and religious organizations that select
members and leaders who share their organizational beliefs or religious convictions
to maintain a coherent identity and message are not engaging in invidious
discrimination. Rather, they are engaging in the most basic and fundamental
exercise of religious freedom and free speech guaranteed by the First Amendment of
the United States Constitution. (See Hosanna-Tabor Evangelical Lutheran Church
& Sch. v. E.E.O.C. (2012) 132 S. Ct. 694, 703, 708-09 [recognizing right of religious
organizations to select those who convey their message and carry out their mission
without governmental interference]; see also Hsu By & Through Hsu v. Roslyn
Union Free Sch. Dist. No. 3 (2d Cir. 1996) 85 F.3d 839, 869 [there is “nothing
invidious” about a religious group selecting coreligionists as leaders and members
because such selectivity is “vital to the group’s religious mission and the ability of
the group to define itself on the basis of shared faith”].)
The government violates associational and free speech rights where it
“single[s] out organizations for disfavored treatment because of their points of
view.” Christian Legal Society v. Martinez (2010) 130 S. Ct. 2971, 2993. The
Proposal contravenes this principle because its primary goal is to punish the Boy
Scouts based on its views regarding certain conduct and its related leadership policy
which, the Supreme Court held in Dale, is a central component of the Boy Scouts’
expression.
Thus, if adopted, the Proposal will impact far more nonprofit youth
organizations than just the Boy Scouts. The broad provisions of Canon 2C sweep
within its ambit the Boy Scouts, numerous youth recreation and sports
organizations, many religious ministries, and untold others. Each organization will
suffer from the withdrawal of judges.
April 15, 2014
Page 9 of 10
Conclusion
Of all the states, the Golden State should be taking the lead to protect our
core and precious constitutional liberties, including those of judges who do not
forfeit individual liberty when they take the bench. Instead, the Proposal, if
adopted, will demonstrate that California’s judiciary is unwilling to uphold the
constitutional rights of its own members, which will draw into question whether the
same judiciary will uphold the rights of the litigants who come before it. The United
States Constitution demands that California give its judges more freedom and allow
them to engage in speech and association outside their chambers. We respectfully
request that you reject the Proposal.
Very truly yours,
Craig P. Alexander 132017
Adeline Allen 280300
Justin M. Alvarez 223472
Casey L. Ames 270288
Allison K. Aranda 215021
Alan Leigh Armstrong 115386
Cynthia Arroyo 210348
Brian Barner 268792
Teri Barr 176260
William J. Becker Jr. 134545
Jessica L. Bell 269010
Ronn Bisbee 207071
Martin R. Boles 124159
Yolanda Bosch 188842
Dean R. Broyles 179535
Steven Burlingham 88544
Joel B. Campbell 231678
Sam Casazza 185480
Holly L. Carmichael 268436
John S. Chou 159054
Catherine E. Christiansen 182144
Jeffrey N. Daly 59034
George Davis 274857
Scott H. Davison 228807
Deborah J. Dewart 221737
Kenneth C. Dickson 89368
Rebecca L. Eggleston 260140
Stuart E. Fagan 152732
Denise Furubotten 181733
David E. C. Gettis 211197
Anthony R. Gordon 124089
Mark R. Guevara 219556
Heather Gebelin Hacker 249273
David J. Hacker 249272
Dina S. Haddad 244389
David G. Hagopian 145171
Ross S. Heckmann 160225
Reed R. Heustis Jr. 213686
Amy Hilton 246942
William G. Holzer 251058
Kevin S. Hutcheson 139890
June Jantz 167599
Cyrus Johnson 225797
Paul M. Jonna 265389
Valerie P. Kilpatrick 265109
Ryul Kim 113606
Bradley J. Kirk 162826
Ronald V. Larson 180073
Alice G. Lee 263807
Donald R. Lee 144703
Charles S. LiMandri 110841
David L. Llewellyn Jr. 71706
Judith P. Logan 160448
Daniel J. Lynch 252312
Milton E. Matchak 215739
Merritt L. McKeon 187983
April 15, 2014
Page 10 of 10
Teresa Mendoza 185820
Andrea V. Micklis 268317
Mark D. Millard 84221
Jose Hector Moreno Jr. 131970
Bill Morrow 140772
Joanna D. Mupanduki 283314
Joseph D. Nakos 282314
Kathleen Nakos 186846
Rev. Lu T. Nguyen 203229
Kathleen R. Novinger 201530
Natalie A. Panossian-Bassler 210184
Kevin M. Pasquinelli 77517
Arthur J. Pauly Jr. 95661
Jennifer K. Patrick 207534
Michael J. Peffer 192265
Michael L. Pellascio 213256
Jorge A. Pena 265990
Albert J. Rasch, Jr. 138219
William Rehwald 051396
Andrew J. Reid 268351
Robert J. Reynolds 151243
Benjamin C. Rosenbaum 262748
Stephen Shepard 153619
William G. Short 132479
James A. Smith 236148
Timothy M. Smith 125534
Myron S. Steeves 150772
John Stewart 147954
Laurie Stewart 228387
Clark H. Summers 69454
Timothy J. Swickard 208777
Robert M. Taylor Jr. 33043
Bryan M. Thomas 143737
Angela Thompson 238708
Terry L. Thompson 199870
David P. Toberty 151355
William E. Trask 174370
Esther R. Valdes 226408
David A. Valerio 133568
Kurt Van Sciver 263597
Daniel R. Watkins 163571
James W. Webster 75342
Andrew L. Westover Sr. 253398
Aaron M. White 266453
D. Colette Wilson 123112
Glen Worthington 244507
Emily A. Younger Jackson 231485
Andrew W. Zepeda 106509
Row 43 Comment
455 Golden Gate Avenue
San Francisco, CA 94102
Ref: Proposed Change to Canon 2C of California Code of Judicial Ethics
This email will comment on the proposed amendment to Canon 2C of the California
Code of Judicial Ethics. I disagree with the proposed change to Canon 2C for the
following reasons:
A. The Proposed Change to Canon 2C Violates Constitutional Rights
1. The Right To Associate
The proposed change to Canon 2C violates a judge’s right of expressive
association recognized in Boy Scouts of America v. Dale (2000) 530 US 640, 647.
Judges should not be denied the right to privately associate with an organization
that is lawful and is well recognized as a leader in youth development. 1
2. The Right To Worship
The proposed change to Canon 2C violates a judge’s constitutional right to the free
exercise of his or her religion, despite the proposal’s attempt to protect this right
by exempting religious groups. Association with the Boy Scouts of America (BSA)
for many adults is the result of an ecclesiastical assignment from that individual’s
religious leader(s). For instance, BSA scout packs, troops, teams and crews
(units) sponsored by the Church of Jesus Christ of Latter-day Saints (LDS church)
constitute about one-third of all BSA chartered units. The LDS church does not
require volunteers who lead LDS scout units to be members of the LDS church.
However, volunteers leading LDS scout units who are members of the LDS church
are typically assigned their BSA position by an ecclesiastical leader of the LDS
church. The LDS Church requires all of its scout leaders to be registered as
members of the BSA. (Church of Jesus Christ of Latter-day Saints, Scouting
Handbook for Church Units in the United States, sec. 8.5, rev. June 2012)
The willingness to accept church assignments in the LDS church, including scout
leaders, is part of the religious doctrine of the LDS church. Indeed, members of
the LDS church believe they are called by God to the assigned position. Hence
the assignment is referred to as a “callings.” Further, members of the LDS church
1
Unlike organizations formed to discriminate against any class of persons, the Boy Scouts of
America was not organized and does not exist to discriminate. Instead, the United States Congress
chartered the Boy Scouts of America in 1916 to develop character, citizenship and leadership in
boys. The Boy Scouts of America has since included young women in pursuing that Congressional
mandate.
1
believe their church leaders are inspired to issue the calling on behalf of the Lord.
As such, the teachings of the LDS church discourage rejecting any church
assignment.
The following statements from past and present leaders of the LDS church best
illustrate these points. In 1988, Ezra Taft Benson, the thirteenth President of the
Church of Jesus Christ of Latter-day Saints, stated: “The Lord expects each of us
to have a calling in the Church so that others may be blessed by our talents and
influence.” (The Teachings of Ezra Taft Benson (1988), p. 451-52) Boyd K.
Packer, the current President of the Quorum of the Twelve Apostles, the governing
body of the LDS church, instructed in 1997: “The willingness of Latter-day Saints
to respond to calls to serve is a representation of their desire to do the will of the
Lord…It is not in the proper spirit for us to decide where we will serve or where we
will not. It does not matter what the call may be.” (Boyd K. Packer, October, 1997
General Conference address)
Consequently, for judges who are members of the LDS church, the present
proposal would require the judge, despite his or her deeply held religious beliefs,
to reject a church assignment to be a Scoutmaster, Cubmaster or other scout
leader because such an assignment requires membership in the BSA. As a result,
this proposal interferes with that judge’s freedom of religion.
3. The Right To Parent
The proposed change to Canon 2C interferes with the judge’s right to fully and
freely parent his or her children. The fundamental liberty interest of parents in the
care, custody, and management of their child(ren) is protected by the Fourteenth
Amendment. (Troxel v. Granville (2000) 530 U.S. 57, 65-66; Santosky v. Kramer
(1982) 455 U.S. 745, 753 and 774) The comments to the proposal state the
proposed changes to Canon 2C would not prevent a judge’s family members from
joining or continuing to be members of BSA. While true, the proposal nonetheless
would interfere with a judge’s right to participate in all of his or her child’s BSA
activities. At every BSA outing, the BSA requires the presence of at least two
registered BSA members or one BSA registered member and one parent or adult
over age 21. (See, BSA Guide to Safe Scouting and Youth Protection Training)
Additionally, for some BSA outings every adult present must be a registered BSA
member. For example, every adult who participates in a backpacking trek at the
Philmont Scout Ranch or an outdoor experience at BSA’s Florida Sea Base, two
of BSA’s high adventure camps, must be a member of the BSA. (See, Philmont
Scout Ranch and Florida Sea Base Information pages, 2014)
An important reason for BSA membership requirement is to insure that adults who
go on scout outings are properly trained, including safety training and completion
of the BSA’s Youth Protection Training (YPT). YPT is a training program designed
to protect BSA’s youth members from various forms of child abuse. YPT is a
prerequisite to BSA membership and is required for all BSA members. Therefore,
2
a judge who is not a registered BSA member could not properly take his or child
on some scout outings and could never take his or her child on any scout outing
without at least one other BSA registered adult member.
Further, only registered members of the BSA have primary BSA insurance
coverage for BSA activities. Unregistered adults have only insurance coverage for
costs in excess of his or her personal insurance coverage. (See BSA Insurance
Coverage, April 2013 update) Since BSA activities involve camping, backpacking,
water sports and other outdoor activities that carry risk of injury, the lack of primary
BSA insurance coverage may discourage an unregistered adult, such as judge,
from participating in the BSA activity. 2
By prohibiting a judge from being a BSA member, this proposal effectively limits
the BSA activities he or she can attend with his or her child or the manner in which
he or she participates in those activities. If the child wishes to participate in a BSA
outing requiring all adults to be registered BSA members, such as the high
adventure outings at Philmont or the Florida Sea Base, the judge is prohibited from
attending such an outing with his or her child. As a result of this proposal, those
parenting experiences are lost to that judge forever. If the judge’s child attends
any other BSA activity or outing, that judge must be chaperoned at the outing by a
registered BSA adult member. Consequently, the proposal interferes with that
judge’s right to freely parent his or her child without restriction.
B. The Proposed Change to Canon 2C Does Not Promote Public Confidence
or Judicial Impartiality
The Supreme Court Advisory Committee on the Code of Judicial Ethics (the
committee) does not refer to any report or opinion questioning the value of BSA’s
program to young men and young women. In fact, with the 2013 decision to
include all youth in scouting, even the aspects of this organization which some find
objectionable are changing. Additionally, this proposal does not require judges
who are parents of scout youth to remove their children from the BSA. It only
prevents the judge’s membership in BSA. The children involved in the BSA commit
many hours to scout activities. The involved scout parent likewise spends many
hours supporting, attending and participating with his or her child in scout activities.
Like other involved scout parents, a judge who is a scout parent is unlikely to
completely disassociate himself or herself from their child’s scouting activities even
though the judge cannot be a member of the BSA. Instead, the judge will continue
to attend scout outings and participate in scout activities with his or her child, as
2
Though not likely applicable to judges, another reason for the membership requirement is authorization to
obtain a background check on adult applicants for membership. The applicant agrees to a background check
in the application for BSA membership. Membership is denied to adults with backgrounds unsuitable to
working with a youth serving organization. Whether checked or not, the background of judges should not
present any problems that would disqualify a judge from working with any organization. From the public’s
perspective, however, fostering a system that encourages unregistered, untrained and unchecked adults’
interaction with youth would not likely engender confidence.
3
permitted by the BSA. There will be then no apparent difference in the judge’s
participation before or after the adoption of this amendment, only constitutionally
questionable limitations of the level of participation.
The proposed amendment will therefore not likely stem a judge’s authorized
participation in some BSA activities. Instead, the substantive differences this
proposal will trigger are often not widely apparent to the public, including
preventing judges from registering as a member of the BSA, barring judges from
continued service to BSA where BSA membership is required (such as service on
camp or program staffs or area, regional or national committees which guide the
development and administration of the BSA program), preventing judges from
participation in some scout outings that require BSA membership, preventing
judges from participating in any BSA outing without at least one other BSA
registered adult, denying judges full BSA insurance coverage and eliminating
mandatory YPT requirements and background checks for the unregistered judges.
How, then, does the judge’s continued, albeit limited, participation with a local BSA
unit as an unregistered, partially insured, untrained and unchecked adult promote
the public confidence in the judiciary? It does not.
Further, at risk are several constitutional rights judges now enjoy. The proposal’s
stated reason for placing these rights in jeopardy is to “promote the integrity of the
judiciary” and “enhance public confidence in the impartiality of the judiciary.” This
proposal does neither. The committee assumes a majority of Californians disagree
with the BSA’s current adult membership restrictions. It is unclear whether this
assumption is true. The committee does not provide any information to verify this
assumption. A casual reading of the public comment to various newspaper articles
about this proposal suggest wide public disagreement with this proposal, based on
whether the commentator agrees or disagrees with BSA’s controversial adult
membership standard.
For example, one commentator states: “Two stupid things. You have to include
the religion requirement along with the LGBT ban. Both are awful.” (Public
comment, SFGate article, “Proposal would bar California judge from Scout
Participation,” March 11, 2014) Conversely, another writes: Should the day come
that it is your life or your issue standing before a judge, believe me, you will want
to be assured the judge holds no bias that would impact your case.” (Public
Comment, Los Angeles Times article, “California might bar judges from being Boy
Scout leaders,” February 6, 2014)
Given the public disagreement about the BSA’s adult membership standard, any
attempt to bar California judges from BSA membership will also be met with public
disagreement and the resulting loss of public confidence in the judiciary from some
faction of the public.
4
A recent Los Angeles Daily Journal Guest Column addressing this proposal makes
this point: “Far from increasing public confidence in the judiciary, such attempts at
social engineering are very likely to decrease public confidence among those who
identify with the values of groups like the Boy Scouts in much the same way that
barring judges from joining gay organizations would alienate and deflate
confidence in the judicial system by gay members of the public.” (Hoffman, Los
Angeles Daily Journal, Guest Column, February 13, 2014)
Moreover, the committee seeks to impose this draconian restriction on judges
without providing any evidence whatsoever that the public confidence in the BSA
is now low and, therefore, banning judges from its membership will enhance public
confidence in the judiciary. In fact, given the BSA’s solid record of youth
development and now more inclusive youth membership standards, it could be
equally argued public opinion of the BSA overall is currently high.3
Without a report, a study, polling results or any other information, there is no factual
basis to conclude the public’s opinion in the BSA is low and thus this proposal is
necessary to promote public confidence. In addition, the burden to provide this
evidence rests with the committee and it has not met this burden. Importantly, the
approximate three to four months between the close of public comment period on
April 15, 2014 and proposed implementation of the change to Canon 2C on August
1, 2014 is inadequate to gather the necessary data about the public’s opinion of
the BSA. Finally, it is unclear whether the public is even generally aware of this
proposal. While there has been sporadic newspaper articles about the proposal,
there has been no broad effort to inform the public about this proposal and no
scheduled public hearings to determine the public’s opinion. Instead, the
committee asks the Court adopt this change almost immediately without providing
supporting evidence they should provide, without enough time for any objectors to
the proposal to gather information and without a fair opportunity for public review.
Equally troubling, the committee also fails to offer any evidence that the existence
of the current rule has impaired any judge’s impartiality. The committee has not
shown any evidence that any judicial officer in California improperly presided over
a case with a bias regarding sexual orientation or a case involving a BSA issue
where that judge could not fairly and impartially hear the case.
The disclosure and disqualification requirements of the current rule better insures
against judges who cannot preside over a case fairly and impartially. If there any
doubt about a judge’s impartiality after disclosure, litigants or attorneys may
challenge the judge. (CCP 170.1 and 170.6) These current ethical rules best
3
BSA’s unquestioned 100 year plus track record of developing youth character, citizenship and
leadership is founded on activities that are highly valued and respected by the public, such as
community service. For example, in its 2013 Report to the Nation, the BSA reported that “during
2013, Scouts across America recorded 17,042,938 hours of service to their communities at a value
of more than $377 million (based on a national volunteer-hour value of $22.14).”
5
shield the public from a biased judge. The proposed changes to Canon 2C does
not add to the arsenal of protection against bias the current rule provides.
This proposal threatens constitutional rights to accomplish goals it cannot.
Instead, the proposed change to Canon 2C asks judges to compromise their
religious beliefs, surrender their right to attend every activity their children attends
and sever ties with an organization that has a long record of developing youth
leadership, character and citizenship, all at a time when the only aspect of the
organization subject to criticism is changing. While all judges recognize they
sacrifice some individual rights for the job, judges should not be required to
compromise their faith or right to participate fully in their children’s activities. This
proposal goes too far and asks too much of those who faithfully serve the public.
Therefore, the proposed changes to Canon 2C should be rejected in full.4
C. Current Judges Should Be Exempted from the Application of Any Change
to Canon 2C
Alternatively, if the Court favors the proposed change, current California judges
should be exempt from the new rule. These judges left other careers for this job
without understanding they would be later asked to sacrifice these constitutional
rights to keep the job. In addition, in many cases, they have made long standing
commitments to their children and the BSA that predate and postdate their judicial
service. Judicial applicants, on the other hand, would fairly know what they are
giving up before seeking a judicial position. It is unfair to surprise current judges
with this serious loss of their constitutional rights. For these reasons, if this
proposal passes, which is should not, the ban should exempt current California
judges.
D. Any Adoption of the Proposed Change to Canon 2C to All Judges Should
Be No Sooner Than June 2015
If the Court adopts the rule change without exception, the Court should set the
effective date no sooner than June 2015.5 The proposed date for the
It must be noted that not all BSA members even agree with BSA’s current adult membership
restriction. Similarly, not all judges who are members of the BSA agree with BSA’s adult
membership restriction. These judges are in a far better position to influence further change to
BSA’s membership standards as members of the BSA than outsiders. By removing judges as
members of the BSA, the committee’s recommendations will be counter-productive to the evolution
of the BSA as a completely inclusive youth organization.
4
5
The timing of this proposal is especially troubling. According to the commentary to the proposed
amendment to Canon 2C, the so called BSA exception to Canon 2C has been at issue since at
least 2003. In 2013, the BSA voted to eliminate any barrier to youth membership based on sexual
orientation. The proposed implementation of this amendment is August 2014, four months after
the proposal was made and three months after the public comment period closes. It is concerning
the committee seeks to impose this constitutional restriction on judges almost immediately when
the issue has been active for over a decade and the BSA is moving in the direction that the proposal
itself promotes.
6
implementation of the change to Canon 2C is August 1, 2014. BSA registration
locally is based on a calendar year. BSA registration for area, regional and national
assignments is based on a fiscal year that runs from June to May. A volunteer
who holds local and national BSA responsibilities is registered both locally and
nationally. Such a volunteer’s current BSA commitments, for instance, run through
May 2015.
With the proposal to implement the rule change on August 1, 2014, judges will be
required to suddenly withdraw membership during summer 2014. This short
implementation period is prejudicial in several ways. Summer is the peak BSA
activity period. With virtually no lead time, the judge’s personal and family plans
must be changed if the rule change is implemented on August 1, 2014. The judges’
investments of time, travel and money for those BSA activities will be lost. The
judge’s child’s expectations of the participation of his or her parent in activities and
outings after August 1, 2014 will be frustrated. Further, an August 2014 rule
change will require other BSA volunteers and professionals to recruit and train new
volunteers to assume the judges’ post-August 2014 duties. Crucially, the sudden
loss of a judge in a scout unit with few volunteers may threaten the viability of that
unit and, as a consequence, jeopardizes the scouting program for those children
in that unit.
Public confidence is not promoted by the sudden loss of the judge during BSA’s
peak activity season. The resulting disturbance of the judge’s responsibilities and
commitments to the BSA, the inconvenience to the other BSA volunteers and
professionals with whom the judge serves and the potential adverse impact on
BSA’s youth members is undignified. It tarnishes, not enhances, the public image
of the judiciary. Further, since this issue has been active for over a decade, no
urgency has been shown justifying these dramatic, almost overnight changes.
Accordingly, any change to Canon 2C should commence no earlier than June
2015.
E. Application of the Proposed Change to Canon 2C Should Apply Fairly to
All Nonprofit Youth Groups
Finally, the BSA is not the only nonprofit youth group that has restrictive
membership rules. For example, youth membership in the Girl Scouts of America
(GSA) is restricted to girls. The Constitution of the GSA states: “The Girl Scout
Movement is open to all girls and adults who accept the Girl Scout Promise and
Law and meet membership requirements.” (Emphasis added) (Blue Book of Basic
Documents 2012, Constitution of the Girl Scouts of the United States of America).
This discriminatory practice has subjected the GSA to public criticism from one
group. (See, Scout Pride Website, “Girl Scouts and Discrimination” page, January
6, 2014) In fact, since BSA youth membership is open to girls and boys regardless
of sexual orientation, BSA’s youth membership policies are less discriminatory
than the GSA. The proposed change in Canon 2C broadly includes any nonprofit
7
youth organization that discriminates.
Yet, there is no mention of the
discriminatory policies of GSA in the analysis of the proposed rule change. Since
the committee’s discussion to Canon 2C does not mention the GSA, it is unclear
whether the committee considered the broader application of the proposal to GSA
membership and the resulting impact on judges who are members of the GSA. If
this proposed change to Canon 2C is adopted, fundamental fairness demands the
Court also consider whether GSA practices “invidious discrimination” and, if so,
apply the change to Canon 2C to judges who are members of GSA or, for that
matter, any other nonprofit youth organization which practices “invidious
discrimination.”
Respectfully submitted,
Jeffrey S. Bostwick
8
Row 45 Comment
Wayne Brock
Chief Scout Executive
Boy Scouts of America
1325 West Walnut Hill Lane
P.O. Box 152079
Irving, Texas 75015-2079
Dear Mr. Brock,
June 13, 2013
On April 25, I wrote to you after learning of the newest membership standard
proposal that would be presented to the annual meeting. I expressed my concern
about the inconsistency of the absolutely appropriate proposed resolution
pertaining to youth and the inappropriate decision to keep the current policy for
adults. I noted that maintaining the current policy was, in light of the findings of our
experts in which they opined that there was no correlation between sexual abuse
and same sex interest or with self identified homosexual adults and role modeling,
unjust, unsupportable, and arguably damaging to a young person who might be
dealing with these issues.
Since that date, I listened to the webinar and studied the results of the annual
meeting. Congratulations on the passage of the resolution dealing with our youth. It
was truly the right decision. Unfortunately the same cannot be said as to the
decision to not allow a vote or discussion on the many resolutions concerning
adults. With the background of both presidential candidates advocating a change to
our policy and the elimination of Don’t Ask, Don’t Tell in the U.S. Armed Forces, our
organization should have courageously faced this important question. Through
your guidance, we had the benefit of extensive polling which revealed, in part, that
parents under the age of 50 oppose the current membership policy. In my mind, our
membership numbers tell us that young families are rejecting us because of this
policy.
I believe that Scouting has no equal in providing a sound foundation of
citizenship and leadership development for our youth. I have been involved in
Scouting for over 25 years and am currently serving as NER Area 2 Program Impact
Chair, Area 2 Conservation Advocate, Connecticut Rivers Council Executive Board
member, Troop Committee member and, like many Scouters, in a number of other
capacities. I always believed I would be a Scouter for life.
In my professional life, I have proudly served as a trial judge for almost 25
years. I have sworn an oath to faithfully discharge the duties of my office – duties
that certainly include treating all of our citizens equally without discrimination (and
likewise refraining from membership in any discriminatory organization). For many
years, I have defended my involvement in the BSA arguing that the membership
policies would change. Evidently I was not totally correct. The BSA’s decision- and it
is indeed an affirmative decision- to maintain the current discriminatory policy
towards adults by not proposing or allowing a vote, now necessitates my
withdrawal from Scouting. Never would I have thought that one could not be both a
member of the BSA and serve as a judge.
Hence, it is with great sadness, for both personal and professional reasons,
that I hereby resign, effective immediately, from the Boy Scouts of America. I look
forward to the day that I can return to our organization – once it decides to uphold
our American value of treating all its citizens equally.
Very truly yours.
cc:
Pat Boyd
Hab Butler
Randy Cline
Scott Christiansen
Ron Hathaway
Mike Huneke
Dave O’Leary
Bill Johnston
Bill Roell
David Short
Gary Schroeder
Robert Sirhal
Steven Smith
Dave Whitney
Marshall K. Berger, Jr
#6366038
Beck│Bismonte│Finley LLP
Row 48 Comment
Attorneys at law
CITYVIEW PLAZA
150 ALMADEN BLVD.,
10TH FLOOR
SAN JOSE, Ca 95113
TEL: 408.938.7900
FAX: 408.938.0790
WWW.BECKLLP.COM
Alfredo A. Bismonte
[email protected]
March 31, 2014
By email: [email protected]
455 Golden Gate Ave.
Re: Opposition to Proposed Amendments to Canon 2C, Code of Judicial Ethics
Dear Sir or Madam:
I have been practicing law as a member of the California Bar for over 25 years. I have
never before written this office on matters of judicial ethics but feel compelled to do so now. I
see that the Supreme Court Advisory Committee on the Code Judicial Ethics, Chaired by the
Hon. Richard D. Fybel, is soliciting comments on the proposed Proposed Amendments of Canon
2C. The proposed change which I find troubling is stripping from judges the right of be active
leaders in the Boy Scouts of America (“Boy Scouts”). I believe that such a modification is
unnecessary, counter-productive and ultimately harms youth.
As you probably know, the Boy Scouts is one of the largest youth organizations in the
United States, with 2.7 million youth members and over 1 million adult volunteers. The Boy
Scouts is one of the rare organizations which hold a Congressional charter under Title 36 of the
United States Code.
The current Canon 2C allows judges to participate in youth organizations such as the Boy
Scouts. But the youth organization provision is careful to make sure that the disqualification and
disclosure requirements for impartiality are maintained: “A judge holding membership in an
organization should disqualify himself or herself whenever doing so would be appropriate in
accordance with Canon 3E(1), 3E(4) or 3E(5) or statutory requirements.” (Canon 3E
Commentary). Accordingly, in no way is the current change expected to alter disclosure or
impartiality of the judges who I may assume will either recuse themselves or set aside any
animus or bias they may have due to their participation in the Boy Scouts. Indeed, the fact that a
religious exception continues and in the proposed amendments the family members of judges
have no limitation as their participation in the Boy Scouts only underscores that judges can and
should be expected to apply the law regardless of their (or their family’s) participation in the Boy
Scouts.
Row 88 Comment
Row 97 Comment
Seeking Justice with the Love of God
April 15, 2014
The Honorable Richard D. Fybel, Chair
Supreme Court Advisory Committee
on the Code of Judicial Ethics
350 McAllister Street
San Francisco, California 94102-3688
Dear Justice Fybel and Committee Members:
This comment letter is submitted on behalf of the Christian Legal Society (“CLS”), an
association of Christian attorneys, law students, and law professors. CLS has long believed that
pluralism, which is essential to a free society, prospers only when the First Amendment rights of
all Americans are protected, regardless of the current popularity of their belief, speech, or
assembly.
Demonstrating its commitment to pluralism, CLS was instrumental in passage of the
federal Equal Access Act of 1984 that protects the right of both religious and LGBT student
groups to meet on public secondary school campuses. Equal Access Act (“EAA”), §§ 20 U.S.C.
4071-74. See 128 Cong. Rec. 11784-85 (1982) (Senator Hatfield statement) (recognizing CLS’s
role in drafting the EAA). See, e.g., Board of Education v. Mergens, 496 U.S. 226 (1990) (EAA
protects religious student group’s meetings); Garnett v. Renton Sch. Dist., 987 F.2d 641 (9th Cir.
1993) (same); Ceniceros v. Board of Trustees of San Diego Sch. Dist., 106 F.3d 878 (9th Cir.
1997) (same); Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002) (same); Bible Club v. PlacentiaYorba Linda Sch. Dist., 573 F. Supp.2d 1291 (C.D. Cal. 2008) (same); Colin v. Orange Unified
Sch. Dist., 83 F. Supp.2d 1135 (C.D. Cal. 2000) (EAA protects Gay-Straight Alliance student
group’s meetings). CLS is proud of its efforts to protect free speech and expressive association
rights for all student groups.
In contrast, the proposed change to Canon 2C would violate basic principles of pluralism.
Because the freedoms of speech, religion, and assembly are essential to a healthy and pluralistic
free society, judges should not be prohibited from belonging to the Boy Scouts of America.
Therefore, CLS urges the Committee to retain Canon 2C as it is currently written and to reject
the proposed change outlined in the Invitation to Comment SP 14-02 (February 5, 2014).
The proposed change to Canon 2C and its commentary would prohibit judges from
participating in Boy Scouts with their children and grandchildren. By punishing entire families
for wanting to associate with an organization that the State has deemed to be wrong on a matter
of social policy, the proposed change would operate as a bill of attainder. The proposed change
would heavily burden both the judge and his or her child and inflict needless emotional harm on
the child.
Letter to Supreme Court Advisory Committee
April 15, 2014
Page 2 of 8
The proposed change to Canon 2C would violate judges’ constitutional right as parents to
direct the education and upbringing of their children as they deem best. The change would also
violate judges’ First Amendment freedoms of speech, assembly, and association. Finally, as the
Committee acknowledges, deletion of the religious organization exception – which is not
proposed at this time -- would violate judges’ constitutional rights of freedom of religion and
religious association.
Canon 2C reflects the basic nondiscrimination norms of our society.
Such
nondiscrimination policies are good and essential. But they must be interpreted in light of the
fact that they are intended to protect religious citizens, not penalize them for being religious.
Too often nondiscrimination policies are misapplied in a wooden, unthinking manner to exclude
religious citizens from the public square. But it is basic religious liberty, not discrimination, for
religious organizations to require their leaders to agree with their religious beliefs. HosannaTabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012).
Misuse of nondiscrimination policies to exclude religious persons from the public square
threatens the pluralism at the heart of our free society. The genius of the First Amendment is that
it protects everyone’s speech, no matter how unpopular, and everyone’s beliefs, no matter how
unfashionable. When that is no longer true and nondiscrimination policies are misused as
instruments for the intolerant suppression of dissenting speech and beliefs, then the pluralism so
vital to sustaining our political and religious freedoms will no longer exist.
A. Like unconstitutional bills of attainder, the proposed change would punish judges and
their children for belonging to an organization that holds social views which the State
disapproves.
To change Canon 2C to prohibit judges from belonging to Boy Scouts with their children
and grandchildren punishes entire families for wanting to associate with an organization that the
State has deemed to be wrong on a matter of social policy. The Invitation to Comment asserts
that “[e]liminating the exception would not have any effect on a judge’s family members, who
could still join or continue to be members of the BSA.” Invitation to Comment (“ITC”) p. 4.
But this statement demonstrates that the Committee fails to understand the significant role that
parental involvement plays in a child’s participation in the Scouting program.
The proposed change would mean that judges could not serve as leaders of their child’s
den, pack, 2 or troop. 3 A judge would be required to explain to his or her second-grader why the
1
1
Cub Scouts in the first through fifth grades are organized into “dens” according to grade level
with each grade working to attain the next rank of advancement. For example, first-grade Cub
Scouts work to attain the rank of “tiger”; second-graders work to attain the rank of “wolf”; thirdgraders work to attain the rank of “bear”; and fourth and fifth graders work to attain the rank of
“webolos,” which is an acronym for “we be loyal Scouts.” Each den requires at least two parent
leaders.
8001 Braddock Rd, Ste. 302 - Springfield, VA 22151 - (703) 642-1070 - fax (703) 642-1075
[email protected] - www.clsnet.org
April 15, 2014
Page 3 of 8
parent could not serve as den leader or packmaster like all the other parents. A judge would have
to explain to a grandson that he or she cannot serve as a merit badge counselor for “Citizenship
in the Community” or “Citizenship in the Nation.” The proposed change would limit a judge’s
ability to be involved in his or her son’s attainment of the rank of Eagle, from participating on
his Eagle project to assisting him in earning the twenty-one merit badges required to achieve the
rank of Eagle. (Several of the required merit badges, such as the Family Life and Personal
Management merit badges, require parental participation.) Denying a judge the ability to be
freely involved in his or her child’s Scouting experience is a heavy burden that not only
penalizes the judge, but inflicts an unnecessary emotional burden on his or her child.
Such state action is the modern version of a bill of attainder: the State targets a
disapproved viewpoint for punishment and visits that punishment upon entire families. Such
legal sanctions are, of course, long prohibited by American constitutional norms. U.S. Const.
Art. I, § 10 (“No State shall pass any Bill of Attainder . . . .”); Art. I, § 9, cl. 3 (Congress may not
pass a bill of attainder). In a case arising in California, the United States Supreme Court held
that a federal law was an unconstitutional bill of attainder because it prohibited Communist Party
members from holding office in labor unions. U.S. v. Brown, 381 U.S. 437 (1965). Writing for
the Court, Chief Justice Warren explained that “the Bill of Attainder Clause was not to be given
a narrow historical reading . . . , but was instead to be read in light of the evil the Framers had
sought to bar: legislative punishment, of any form or severity, of specifically designated persons
or groups.” Id. at 447 (emphasis supplied).
In his ruling, Chief Justice Warren relied on Ex parte Garland, 71 U.S. 333 (1866), in
which the Supreme Court held unconstitutional, as a bill of attainder, a post-Civil War federal
law that prohibited an attorney from practicing in federal courts unless he first swore that he had
taken no part in the rebellion against the Union. Excluding attorneys from practicing in federal
court because they engaged in armed rebellion against the federal government would seem a
more justifiable employment restriction than excluding judges from holding judicial office
because they are members of the Boy Scouts. If the former is unconstitutional, then certainly the
latter is equally unconstitutional.
2
The “pack” is composed of all Cub Scouts in first grade through the first half of fifth grade.
The pack requires numerous parents to serve either as uniformed leaders overseeing pack
activities or as non-uniformed leaders on the pack committee overseeing the uniformed leaders’
efforts.
3
Scouts “bridge” from a Cub Scout pack into a Boy Scout troop during their fifth grade year
and remain in it until they turn 18 years of age. Each troop has at least one adult scoutmaster and
one assistant scoutmaster. Most troops utilize numerous additional adult leaders to supervise
camping trips, coordinate “Scouting for Food,” serve as advancement mentors, provide
instruction for various badges, and assist at the meetings.
April 15, 2014
Page 4 of 8
B. Like similar past attempts to punish politically disfavored organizations, the proposed
change would violate judges’ freedoms of speech, association, and assembly.
Fifty years ago, some states disapproved of the NAACP or the Communist Party and
tried to punish citizens, including government employees, who affiliated with those
organizations. The Constitution prohibited such punitive laws as violations of citizens’ freedom
of speech, assembly, and association.
At the same time that the federal government and many states were placing employment
restrictions on Communist Party members, some states targeted the NAACP and the civil rights
movement. These states imposed limits on individuals’ right of expressive association in order
to intimidate persons from belonging to disfavored organizations. The leading example, of
course, is Alabama’s requirement that the NAACP disclose the names of its members in order to
incorporate in Alabama, a requirement that would certainly have led to immediate economic,
social, and physical harm to Alabama citizens who were NAACP members. See John D. Inazu,
Liberty’s Refuge: The Forgotten Freedom of Assembly 77-96 (Yale University Press 2012)
(tracing the importance of freedom of speech and expressive association to the civil rights
movement in the 1950s and 1960s). An Alabama state court trial judge granted the state “the
injunction ex parte, explaining that he intended ‘to deal the NAACP a mortal blow from which
they shall never recover.’” Id. at 79. Relying upon freedom of speech and assembly, the United
States Supreme Court protected the NAACP’s refusal to disclose its membership lists. NAACP
v. Alabama, 357 U.S. 449 (1958). See also, Bates v. City of Little Rock, 361 U.S. 516 (1960)
(NAACP’s freedom of association protected its right to refuse to provide its local membership
lists to municipal officials).
Some states even restricted public employees’ freedoms of speech, assembly and
association as a condition of retaining their jobs, in an attempt to identify and penalize
government officials who participated in disfavored organizations. For example, Arkansas
required every public school and college teacher “to file annually an affidavit listing without
limitation every organization to which he has belonged or regularly contributed within the
preceding five years.” Shelton v. Tucker, 364 U.S. 479 (1960). The United States Supreme
Court held that Arkansas’ restriction violated the First Amendment.
More recently, some states have disapproved of the Boy Scouts’ adherence to
countercultural beliefs regarding sexual conduct. The New Jersey Supreme Court, for example,
found that those beliefs violated its nondiscrimination law regarding sexual orientation.
Reversing, the United States Supreme Court held that New Jersey’s application of its public
accommodations law to require the Boy Scouts to admit a leader who advocated homosexual
conduct “violates the Boy Scouts’ First Amendment right of expressive association.” Boy Scouts
of America v. Dale, 530 U.S. 640, 644 (2000).
April 15, 2014
Page 5 of 8
The Supreme Court protected the Boy Scouts’ right of expressive association, in part,
because “[t]his right is crucial in preventing the majority from imposing its views on groups that
would rather express other, perhaps unpopular, ideas.” Id. at 647-48. The Court observed that
“[g]overnment actions that may unconstitutionally burden this freedom may take many forms.”
Id. at 648. New Jersey violated the Boy Scouts’ freedom of association by requiring it to include
leaders whose views were contrary to the values the Scouts wished to instill. An equally serious
form of burdening this freedom would be the inverse: to condition public office on a citizen
forfeiting membership in a particular organization, as the proposed change to Canon 2C would
require judges to do. Just as the “freedom of association plainly presupposes a freedom not to
associate,” so too the freedom of association plainly presupposes a freedom to associate. Id.
(ellipses and quotation marks omitted).
Nearly two decades ago, the California Supreme Court explicitly recognized that
“[m]embership in nonprofit youth organizations is not barred to accommodate individual rights
of intimate association and free expression.” Canon 2C Commentary. See ITC p. 4. The
Constitution’s protection for “individual rights of intimate association and free expression” has
not changed. Neither should Canon 2C.
This is particularly true given the current overheated political atmosphere regarding
recent threats to the Boy Scouts’ tax exemption made by the California State Legislature. A few
months ago, the California State Senate passed legislation, SB 323, to deprive the Boy Scouts of
certain tax exemptions, although the measure has not yet passed the Assembly. See Eric
Bradley, Press-Telegram, Bill Targeting Tax Exempt Status of Boy Scouts Fails to Attract
Enough Votes, Sept. 12, 2013, available at http://www.presstelegram.com/government-andpolitics/20130912/bill-targeting-tax-exempt-status-of-boy-scouts-fails-to-attract-enough-votes.
The proposed change to Canon 2C clearly targets judges’ membership and participation
in the Boy Scouts. As the Invitation itself denotes, when the California Supreme Court “added
‘sexual orientation’ to the list of protected categories included in Canon 2C, . . . the court
adopted an exception permitting membership in nonprofit youth organizations to accommodate
the interests of judges who were members of or active in the Boy Scouts of America (BSA).”
ITC p. 2. In explaining its rationale for eliminating the nonprofit youth organization exception,
the Committee “analyzed the exception in the context of a judge being a member of the BSA.”
Id. p. 4. The Committee then examined “the official policy of the BSA” before concluding:
Because the BSA continues to discriminate on the basis of sexual orientation, the
committee agreed that eliminating the exception, thereby prohibiting judges from
being members of or playing a leadership role in the BSA, would enhance public
confidence in the impartiality of the judiciary.
Id.
April 15, 2014
Page 6 of 8
Such targeting of the Boy Scouts echoes past targeting of other politically disfavored
organizations. In retrospect, we understand history’s lesson that targeting Communists, the
NAACP, and other political, social, and religious movements was a grave error. As the United
States Supreme Court explained at the height of the Second World War, elementary school
students, who were Jehovah’s Witnesses, could not be expelled from public school for their
refusal to salute the American flag because:
If there is any fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or act
their faith therein. If there are any circumstances which permit an exception, they
do not now occur to us.
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
C. Like other unconstitutional restrictions on public employment that interfere with
parents’ constitutional right to direct the education and upbringing of their children, the
proposed change would punish judges and their children for joining an organization which
the State disapproves.
The Committee’s unsupported assumption that “[e]liminating the exception would not
have any effect on a judge’s family members, who could still join or continue to be members of
the BSA” misunderstands the Scouting program and ignores the profound burden the proposed
change would impose on judges and their children. As discussed in Part A supra, the proposed
change would prevent judges from leading their son’s den, pack, and troop and exclude them
from serving as merit badge counselors. It would prevent judges from assisting their sons’ in
earning various merit badges and ranks, as well as attaining the rank of Eagle. It would interfere
with parental bonding through the outdoor activities integral to the Scouting program. As the
United States Supreme Court recognized, the Boy Scouts instills its values in children by
“instructing and engaging them in activities like camping, archery, and fishing.” Dale, 530 U.S.
at 649-50, citing Roberts v. United States Jaycees, 468 U.S. 609, 636 (1984) (O’Connor, J.,
concurring) (“Even the training of outdoor survival skills or participation in community service
might become expressive when the activity is intended to develop good morals, reverence,
patriotism, and a desire for self-improvement”).
By preventing judges from joining the Scouting program with their children, the
proposed change would violate the fundamental parental right to direct the upbringing of their
children. In case law stretching over nearly a century, the Supreme Court has repeatedly
reaffirmed that the Constitution protects the right of parents to direct their child’s education and
upbringing. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000); Wisconsin v. Yoder, 406 U.S. 205
(1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390
(1923).
April 15, 2014
Page 7 of 8
The government cannot condition public employment upon the surrender of this
fundamental parental right to direct the education of one’s child. To that end, the Ninth Circuit
Court of Appeals held that a public school district violated a public school principal’s right to
direct his children’s education when it demoted him because he intended to educate his children
at home. Peterson v. Minidoka County Sch. Dist. No. 331, 118 F.3d 1351, as amended, 132 F.3d
1258 (9th Cir. 1997). Relying on Meyer, Pierce, and Yoder, the Ninth Circuit affirmed that
“liberty in the Fourteenth Amendment encompasses the liberty of parents to determine the
education of their children.” Id. at 1358. If a public school district cannot discipline a principal
for homeschooling his children, then a state cannot discipline a judge for leading and otherwise
participating with his children in the Scouting program.
D. As the Committee acknowledges, deletion of the religious organization exception would
violate judges’ constitutional rights.
Despite the proposed change’s entrenchment on judges’ constitutional rights to direct the
upbringing of their children, as well as their First Amendment rights of speech, association, and
assembly, the Committee correctly reaffirms that the religious organizations exception is
constitutionally required. The Invitation to Comment states that “[t]he committee proposes
retaining the exception for religious organizations.” ITC p. 1. It further states that “the
commentary would retain the language noting that membership in religious organizations is
constitutionally protected.” ITC p. 4.
Canon 2C reflects the basic nondiscrimination norms of our society.
Such
nondiscrimination policies are good and essential. But they must be interpreted in light of the
fact that they are intended to protect religious citizens, not penalize them for being religious.
Too often nondiscrimination policies are misapplied in a wooden, unthinking manner to exclude
religious citizens from the public square. Such an “application of the nondiscrimination policy
against faith-based groups undermines the very purpose of the nondiscrimination policy:
protecting religious freedom.” Joan W. Howarth, Teaching Freedom: Exclusionary Rights of
Student Groups, 42 U.C. Davis L. Rev. 889, 914 (2009). See also, Richard W. Garnett,
Religious Freedom and the Nondiscrimination Norm, ch. 4 in Austin Surat, ed., Legal Responses
to Religious Practices in the United States 194 (Cambridge University Press 2012), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2087599.
It is basic religious liberty, not discrimination, for religious organizations to require their
leaders to agree with their religious beliefs. In its unanimous ruling in Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012), the United States
Supreme Court held that federal nondiscrimination laws did not outweigh religious institutions’
right to determine who their leaders would be. The Supreme Court acknowledged that
nondiscrimination laws are “undoubtedly important. But so too is the interest of religious groups
in choosing who will preach their beliefs, teach their faith, and carry out their mission.” Id. at
710.
April 15, 2014
Page 8 of 8
Misuse of nondiscrimination policies to exclude religious persons from the public square
threatens the pluralism at the heart of our free society. The genius of the First Amendment is
that it protects everyone’s speech, no matter how unpopular, and everyone’s beliefs, no matter
how unfashionable. When that is no longer true — and our society seems dangerously close to
the tipping point, as the proposed change to Canon 2C demonstrates -- when nondiscrimination
policies are misused as instruments for the intolerant suppression of dissenting speech and
minority beliefs, then the pluralism so vital to sustaining our political and religious freedoms will
no longer exist.
Respectfully submitted,
/s/ Kimberlee Wood Colby
Kimberlee Wood Colby
Director, Center for Law
and Religious Freedom
Christian Legal Society
8001 Braddock Road, Ste. 302
Springfield, Virginia 22151
(703) 894-1087
[email protected]
Row 139 Comment
Row 322 Comment
“I am not now, nor ever have been, a member of the Boy Scouts of
America.” Tom Lehrer, “Be Prepared” (1953)
Tom Lehrer’s 20th century farce might become 21st-century
constitutional tragedy. If the pending proposal passes, California judges
may soon be forced to affirm a version of the preceding statement to
remain on the bench.
Having drafted a position paper on the subject as a chambers
attorney when the Supreme Court considered a similar proposal in
2003, I recall the past debate well. The First Amendment has not
changed since then. Shifts in public opinion do not affect its reach;
freedom of speech protects both the ideas that challenge the status quo
as well as those that reinforce it. “[T]he fact that an idea may be
embraced and advocated by increasing numbers of people is all the
more reason to protect the First Amendment rights of those who wish to
voice a different view.” (Boy Scouts of America v. Dale (2000) 530 U.S.
640, 660.) The First Amendment would not be needed if it protected
only those ideas that already enjoyed popular support.
I.
A youth group exception is superfluous, because Canon 2C
would not prohibit Boy Scouts membership even without it.
California apparently stands alone in maintaining a youth group
exemption to its judicial canons barring membership in exclusionary
organizations. Among the minority of states barring membership in
organizations that exclude based on sexual orientation, California is the
only one of those that maintains a youth group exception. The proposal
favors ending this unique compromise. But other states may well lack
an exception because it is superfluous; properly construed, Judicial
Canon 2C does not preclude Boy Scouts membership. Accordingly,
there is no need for an affirmative exception from its coverage.
Canon 2C bars membership in organization practicing “invidious
discrimination on the basis of race, sex, gender, religion, national origin,
ethnicity or sexual orientation.” But with or without an affirmative
youth group “exception,” membership in the Boy Scouts is not
inconsistent with Canon 2C, because the organization does not
discriminate on the basis of sexual orientation, and any discrimination
is not invidious.
2
A.
The Boy Scouts do not discriminate on the basis of sexual
orientation, only for the expression of a contrary message.
Boy Scouts do not exclude based on a private, sexual orientation
but on public expression. In Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc. (1995) 515 U.S. 557, St. Patrick’s Day
Parade organizers did not question prospective marchers about their
orientation, or exclude anyone on that basis. Rather, they excluded
marchers who insisted on expressing a message that undercut the
organization’s message. The Scouts today follow a comparable
approach. As recently explained, “The BSA does not proactively inquire
about the sexual orientation of its volunteer leaders, and the BSA
respects everyone's right to privacy. . . . But if a volunteer makes an
issue out of his or her sexual orientation . . . then that volunteer is no
longer eligible for to be a registered leader.” (Emma Roller, The Boy
Scouts Just Kicked Out an Openly Gay Scoutmaster, The National
Journal, Apr. 1, 2014.) Indeed the dismissed scoutmaster had been
serving in that role for nearly a year — until he did a television
interview. (Erik Eckholm, Boy Scouts Dismiss a Gay Troop Leader in
Seattle, N.Y. Times, Apr. 2, 2014. p. A15.) Individuals are thus
included, regardless of their orientation, unless they publicly express
unwelcome speech.
3
B.
Any discrimination practiced by the Boy Scouts is not “invidious” as
defined by the Canon 2C commentary, because it serves to preserve
religious or cultural values of legitimate common interest.
The commentary to Canon 2C recognizes that not all
discrimination is invidious. The commentary distinguishes between
discrimination where “the organization is dedicated to the preservation
of religious, ethnic, or cultural values of legitimate common interest”
and that where it “arbitrarily excludes from membership” “persons who
would otherwise be admitted to membership.” Boy Scouts policy falls on
the former, non-invidious side of the contrast.
As the Seventh Circuit has observed, the latter, invidious form of
discrimination occurs where a swimming pool admits Caucasians but
excludes African-Americans, even though both can swim. (Welsh v. Boy
Scouts of America (7th Cir 1993.) 993 F.2d 1267, 1277.) “The purpose of
a swimming pool or tennis court is to allow one to participate in
recreation, and both Caucasians and non-Caucasians are capable of
swimming and playing tennis.” (Ibid.) If the pool exists to provide
opportunities for swimming, African-Americans “would otherwise be
admitted to membership” but for discrimination.
But the Seventh Circuit observed that the Scouts’ specific values
and mission meant that not anyone would “otherwise be admitted” to
4
membership.
The purpose of Scouting, however, is to equip youth of all
races, colors and creeds to fulfill their duty to God, to mature
personally, and to help others. This can only be achieved by
a boy who believes in God. How does one who denies the very
existence of a Supreme Being presuppose to follow the Oath
of the Boy Scouts of America?
(Welsh, supra, 993 F.2d at p. 1277.)
Welsh concerned exclusions based on religion rather than sexual
orientation, but both forms are addressed by Canon 2C. If such
discrimination were invidious, the exclusion of atheists would likewise
implicate Judicial Canon 2C. Welsh thus draws a useful contrast
between the exclusion of those “who would otherwise be admitted,” and
the exclusion of those whose admission would impair the organization’s
mission.
As Justice Kennard has thus observed, whether an exclusion is
invidious or legitimate may turn on whether forced admission would
impair the group’s message. The law may compel admission when it
would not affect the group’s expressive message. (See Curran v. Mount
Diable Council of the Boy Scouts (1998) 17 Cal.4th 670, 725, conc. opn.
of Kennard, J., citing New York State Club Assn. v. New York City (1988)
487 U.S. 1; Board of Directors of Rotary Int’l. v. Rotary Club (1987) 481
U.S. 537; Roberts v. United States Jaycees (1984) 468 U.S. 609.) By
5
contrast, a club “could exclude an applicant whose manifest views were at
odds with a position taken by the club’s existing members.” (Curran,
supra, at p. 727, citing Hurley, supra, 515 U.S. 557, 581.) Justice
Kennard’s concurrence thus anticipated the Supreme Court’s decision
in Dale, supra, 530 U.S. 640, 647: “The forced inclusion of an unwanted
person in a group infringes the group’s freedom of expressive association
if the presence of that person affects in a significant way the group’s
ability to advocate public or private viewpoints.”
Canon 2C properly recognizes the unconstitutionality of applying
nondiscrimination rules against religious organizations. But the First
Amendment protects not only religious exercise but also expressive
association.
Our decisions establish with unmistakable clarity that the
freedom of an individual to associate for the purpose of
advancing beliefs and ideas is protected by the First and
Fourteenth Amendments. [¶.] For at the heart of the First
Amendment is the notion that an individual should be free to
believe as he will, and that in a free society one's beliefs
should be shaped by his mind and his conscience rather
than coerced by the State.
(Abood v. Detroit Board of Ed. (1977) 431 U.S. 209-234-235.)
Religious belief is a common but not indispensable element of that
conscience. (Welsh v. United States (1970) 398 U.S. 333, 341-343.)
It is therefore telling that the proposal also includes deleting
6
reference to the “individual rights of intimate association and free
expression.” Deleting that language, and those rights themselves, is the
only way to exclude Boy Scouts members from the judiciary. And that is
a deletion no judicial canon can make. (Republican Party of Minnesota v.
White (2002) 536 U.S. 765, 774.)
II.
Because the First Amendment protects Boy Scouts
membership, resignation from the Scouts is an
unconstitutional condition for judicial service.
If Canon 2C were to bar judges from participating in the Boy
Scouts, it would penalize the associational right protected by the First
Amendment. (Dale, supra, 530 U.S. 640.) Such a ban would violate the
unconstitutional conditions doctrine, which vindicates constitutional
rights by preventing the government from coercing people into giving
them up. (Koontz v. St. John’s Water Management Dist. (2013) 133 S.Ct.
2586, 2594.) Indeed, California has historically applied the
unconstitutional conditions doctrine more vigorously than the United
States Supreme Court in protecting individual liberties. (See e.g.
Committee to Defend Reproductive Rights v. Myers (1980) 29 Cal.3d 252,
266-268, and cases collected therein.)
7
A.
The state may not impose a unique penalty on those who engage in
constitutionally protected activity.
Some may contend that Scouts have a First Amendment right to
associate with whomever they wish, but there is no corresponding
constitutional right to be a judge. That was essentially the view
advanced by the Maryland Supreme Court, in asserting there was no
unconstitutional compulsion in requiring a candidate to profess a belief
in God, because he could avoid any restriction to his First Amendment
rights by avoiding public office. “The petitioner is not compelled to
believe or disbelieve, under threat of punishment or other compulsion.
True, unless he makes the declaration of belief he cannot hold public
office in Maryland, but he is not compelled to hold office.” (Torcaso v.
Watkins (1960) 223 Md. 49 [168 A.2d 438, 442, disapproved in Torcaso
v. Watkins (1961) 367 U.S. 488.) But the U.S. Supreme Court deemed
this a religious qualification, which “unconstitutionally invade[d] the
appellants’ freedom of belief and religion and therefore cannot be
enforced against him.” (Torcaso v. Watkins (1961) 367 U.S. 488, 496.)
The rule applied evenhandedly to protect both nonbelief and belief;
the high Court later applied Torcaso to overturn the exclusion of a
minister from public office. (McDaniel v. Paty (1978) 435 U.S. 618.) This
clergy-based disqualification “impose[d] a unique disability upon those
8
who exhibit a defined level of intensity of involvement in protected
religious activity.” (Id. at p. 632.) The Court thus concluded, “Because
the challenged provision establishes as a condition of office the
willingness to eschew certain protected religious practices, Torcaso
v. Watkins [citation] compels the conclusion that it violates the Free
Exercise Clause.” (Ibid, emphasis added.)
The instant proposal forces judges likewise to eschew protected
expressive association as a condition for judicial service. There is no
meaningful distinction between this restriction and the one at issue in
McDaniel, supra, 435 U.S. 618.) There is no functional difference
between the First Amendment rights enjoyed by judges belonging to
“exclusionary” religious congregations and those enjoyed by judges
belonging to the Boy Scouts. The only distinction is that a greater
number belong to churches, synagogues, and mosques than to the Boy
Scouts, and there would thus be greater popular opposition to a
comparable ban on religious membership. But freedom of speech and
association “may not be submitted to vote; they depend on the outcome
of no elections.” (West Virginia State Bd. of Educ. v. Barnette (1943) 319
U.S. 624, 638.)
9
B.
No intervening case disproves the unconstitutional conditions
violation.
Although Evans v. City of Berkeley (2006) 38 Cal.4th 1, and
Christian Legal Society v. Martinez (2010) 130 S.Ct. 2971, superficially
appear to permit the Judicial Canons to bar Scouts membership, neither
covers the instant case. Both cases applied the conventional rule that
government may attach conditions to the use of its resources, and
may decline to subsidize certain activity. The proposed bar on judges
from participating in the Scouts — at anytime in anyplace — bears little
resemblance to the restrictions in Evans and Martinez.
1.
Evans
The California Supreme Court upheld the City of Berkeley’s
conditioning of free berths in the city’s marina on a Scouts affiliate’s
promise to eschew discrimination against atheists or homosexuals.
(Evans, supra, 38 Cal.4th 1, 5-6, 10.) This Court emphasized Berkeley
could constitutionally restrict the use of its own resources.
[T]hat Berkeley's nondiscrimination requirement applied only
to programs assisted by a city subsidy, in the form of free
berths at the marina, is virtually dispositive. The high court
has generally approved, against First Amendment challenges,
programs of governmental financial assistance that limit the
expressive activities for which the funds may be used.
(Id. at p. 11.)
10
The Evans Court recalled high Court precedents holding there was no
unconstitutional infringement of rights when the state “simply ‘refused
to fund such activities out of the public fisc’ ” (Evans, supra, 38 Cal.4th
1, 13, quoting Rust v. Sullivan (1991) 500 U.S. 173, 198 (emphasis
added)), and that “ ‘a legislature’s decision not to subsidize the exercise
of a fundamental right does not infringe the right.’ ” (Evans, supra, at p.
13, quoting Regan v. Taxation with Representation of Washington (1983)
461 U.S. 540, 549 (emphasis added.)
Evans thus expressly distinguished its facts from a circumstance
like the proposed judicial exclusion. It quoted Rust, supra, in
recognizing a condition was unconstitutional where it imposed “ ‘ a
condition on the recipient of the subsidy rather than on the particular
program or service, thus effectively prohibiting the recipient from
engaging in the protected conduct outside the scope of the federally
funded program.” (Evans, supra, 38 Cal.4th at pp. 14-15, quoting Rust,
supra, 500 U.S. at pp. 196-197.) Evans emphasized its reach was far
more constrained than a restriction like the instant proposal. It found
the Berkeley policy,
did not purport to control the exercise of speech or
associational rights by the Sea Scouts or individual plaintiffs
outside the Berkeley Marina program. Even were the
11
nondiscrimination assurance demanded by Berkeley
regarded as a conditional burden on speech or association,
its scope would be limited to the very program subsidized by
the city. As in Rust [citation] and Regan [citation] plaintiffs
here would be free to exercise their expressive or
associational rights fully in any program not funded by
public money.
(Evans, supra, 38 Cal.4th at p. 15, emphasis added.)
Evans thus relied on the federal constitutional rule that the state
may not burden expression beyond the use of the state’s own resources.
At most, a judge could be limited from allowing Scouts to use the
governmental resource of a courtroom for an after hours meeting. But
even that kind of restriction is uncertain. Evans recalled how California
has interpreted the unconstitutional conditions doctrine more rigorously
than the United States Supreme Court. (See e.g. Myers, supra, 29
Cal.3d 252.)
Evans cited Danskin v. Unified School Dist. (1946) 28 Cal.2d 536,
545-546, where the Court held, “A state is without power to impose an
unconstitutional requirement as a condition for granting a privilege even
though the privilege is the use of state property.” Danskin reviewed a
policy that required groups meeting on public property to disavow
advocacy of a violent overthrow of the government. (Id. at p. 539.)
Danskin held that if the state could not directly prohibit the exercise of a
12
constitutional right, it could not indirectly inhibit it through selective
burdens on its exercise. “Since the state cannot compel ‘subversive
elements' directly to renounce their convictions and affiliations, it
cannot make such a renunciation a condition of receiving the privilege of
free assembly in a school building.” (Id. at p. 546.) Likewise, if the state
cannot compel members to quit the Scouts, it cannot make resignation a
condition for the privilege of judicial service.
The Evans court never addressed whether the Berkeley restriction
violated Danskin by inhibiting the Scouts’ right of expressive association
under Dale, supra, 530 U.S. 640, and Hurley, supra, 515 U.S. 557,
because the Evans plaintiff disavowed any interest in excluding atheists
or homosexuals for the purpose of expressive association. (Evans,
supra, 38 Cal.4th 1, 16.) Insofar as an organization to which a judge
belongs does not thus exclude members, there is no possible application
of Canon 2C. The very proposed application against the Boy Scouts,
therefore, would present the applicability of Danskin as the facts of
Evans did not.
2.
Martinez
The other case offering superficial support for the proposed ban is
13
Martinez, supra, 130 S.Ct. 2971. The Supreme Court there upheld
Hastings Law School’s conditioning official recognition of a student
group, and the attendant use of school funds and facilities, on the
organization’s agreement to open eligibility for membership and
leadership to all students. (Id. at p. 2978.) For several reasons,
Martinez does not support the exclusion of Scouts members from the
judiciary.
Like Berkeley’s policy in Evans, supra, 38 Cal.4th 1, Hastings’
policy was “dangling the carrot of subsidy, not wielding the stick of
prohibition.” (Martinez, supra, 130 S.Ct. at p. 2986.) Hastings could
constitutionally restrict use of school funds and facilities to groups that
maintained open membership. (Id. at p. 2978.) A group not
maintaining open membership was not penalized by expulsion or other
adverse consequence, and the Court emphasized it could continue to
engage in its program through many other channels of communication.
(Id. at p. 2991.)
Therefore, in the contrast drawn by Rust, supra, 500 U.S. at pp.
196-197, and cited in Evans, supra, 38 Cal.4th at pp. 14-15, between
conditions imposed on the “recipient of the subsidy” and those
concerning “the particular program or service,” Hastings’ policy involved
14
the latter, and did not “effectively prohibit[] the recipient from engaging
in the protected conduct outside the scope of the [state] funded
program.” Martinez thus found the case governed by the limited public
forum rule announced in Cornelius v. NAACP Legal Defense & Ed. Fund
(1985) 473 U.S. 788, 800, which recognized the state’s right “to preserve
the property under its control for the use to which it is lawfully
dedicated.” (Martinez, supra, at pp. 2984-2985.) The majority conceded
that the result would be different if the state had attempted to dictate
membership conditions outside the limited public forum context. (Id. at
p. 2989, fn. 17.)
Further distinguishing Martinez was its “all-comers rule” and its
University setting. The majority emphasized that the open membership
rule was universal; it not only required the Christian Legal Society to
accept non-Christians, but also, inter alia, required the Hastings
Democratic Caucus to admit Republicans. (Martinez, supra, 130 S.Ct.
2971, 2982.) This “all-comers requirement draws no distinction
between groups based on their message or perspective,” so it was
“textbook viewpoint neutral.” (Id. at p. 2993.) The universallyapplicable rule of open membership thus did not indicate governmental
disapproval of a particular form of expressive association (expressed
15
through selective membership). (Compare Healy v. James (1972) 408
U.S. 169, 187-188: college, as instrument of the state, may not “restrict
speech or association simply because it finds the views expressed by
any group to be abhorrent,” cited in Martinez, supra, at p. 2987.) By
contrast, the proposed amendment to Canon 2C permits judges to
belong to myriad other organizations that maintain selective
membership.
The Martinez court also emphasized that the First Amendment
receives a distinctive analysis in light “of the special characteristics of
the school environment.” (Martinez, supra, 131 S.Ct. at p. 2988
(internal quotation omitted).) The Court thus reviewed with deference
the school’s position that its all-comers condition served a proper
pedagogical purpose. (Id. at p. 2990, internal citation omitted.)
In sum, although Martinez needed to balance the organization’s
“speech and expressive-association rights” against “Hastings’ interests
as a property owner and education institution,” only the former interest
is present here.
3.
Cradle of Liberty
A federal court recently delineated the limited reach of Martinez,
16
supra, 130 S.Ct. 2971, and Evans, supra, 38 Cal.4th 1. The City of
Philadelphia, which had allowed a Boy Scouts chapter to use a building
(which the chapter had itself built) rent-free, announced it would
condition continued free use of the building on the chapter’s modifying
its admission standards. (Cradle of Liberty Council, Inc. v. City of
Philadelphia (E.D. Pa. 2012) 851 F.Supp. 936, 939.) The Boy Scouts
could either abandon its membership policy, pay $200,000 a year in
rent, or vacate the building. (Ibid.) The Cradle of Liberty court rejected
the City’s reliance on Martinez and Evans as a defense against the jury’s
finding that the City had imposed unconstitutional conditions on the
Scouts.
Cradle of Liberty observed the limited nature of the restriction in
Martinez. The inclusionary condition there “covered only ‘admission,
access and treatment in Hastings-sponsored programs and activities.
(130 S.Ct. at 2979 (emphasis added).’ ” (Cradle of Liberty, supra, 851
F.Supp.2d 936, 943.) By contrast, the condition in Cradle of Liberty
required a change in Scouts policy “even in contexts unrelated to the
subsidized building.” (Ibid.) The instant case is even more extreme, as
there is no subsidy or use of government property at all; the proposed
restriction is exclusively the “stick of prohibition,” and addresses only
17
Scouts activities outside the scope of [any state] funded program.”
Furthermore, regardless of whether the condition imposed a
“subsidy” or a “penalty,” Cradle of Liberty recognized that neither
Martinez, supra, 130 S.Ct. 2971, nor Evans, supra, 38 Cal.4th. 1, even
addressed whether it was constitutional to impose disparate treatment
on the Boy Scouts for its particular membership standards. Martinez’s
all-comers policy “prevented the Supreme Court from considering the
petitioner’s argument that the nondiscrimination policy . . . targeted
only those groups who held beliefs based on religion or sexual
orientation.” (Cradle of Liberty, supra, 851 F.Supp.2d at p. 941.)
Similarly, that question was not addressed in Evans: (“Plaintiffs
repeatedly disavow, both in their complaint and in their briefs in this
court, any desire to discriminate on the basis of sexual orientation or
religion. They therefore cannot, and do not, claim that [the defendant],
by requiring them to refrain from such discrimination as a condition of
the free berths, is restricting their freedom to limit their membership for
purposes of expressive association.”) (Cradle of Liberty, supra, at p. 946,
quoting Evans, supra, 38 Cal.4th at p. 16.)
Neither Evans nor Martinez supports the proposed ban on Boy
Scouts members from the bench.
18
III.
Association with the Boy Scouts does not affect the integrity
or impartiality of the judiciary.
A final concern is Canon 2A, which compels judges to maintain
public confidence in an impartial judiciary. If someone belongs to an
organization that disapproves of certain conduct, it may be that the
member also disapproves of the conduct. (Of course, that’s not always
true; some join just for the s’mores.) And a person who disapproves of
conduct may, according to the theory, rule in accordance with that
disapproval rather than with the law and facts of the case.
The theory shows far too little confidence in judges. All judges (we
hope!) disapprove of murder, yet are expected to follow the law if it
means excluding unlawfully obtained evidence that would prove the
defendant is guilty. Anyone who can set aside an extreme antipathy
toward homicide can surely set aside a lesser disapproval of anything
else. Our judges are made of sterner stuff.
Many citizens, including judges, belong to or support private
organizations that condemn certain lawful behavior. Vegans may
believe “meat is murder.” Others may favor the re-criminalization of
medical marijuana. Notwithstanding their stern disapproval, no one
seriously contends that a judge belonging to such an organization would
use the bench to decide the law adversely to litigants who smoke or eat
19
meat. The instant proposal seem less likely to provide impartiality than
to suppress a minority viewpoint, as those with a particular perspective
will be purged from the bench.
The Supreme Court has long recognized that First Amendment
activity, including missionary work, is not a proper basis for exclusion
from public service. (Torasco, supra, 367 U.S. 488, 496; United Public
Workers of America (C.I.O.) v. Mitchell (1947) 330 U.S. 75, 100.) And
what is missionary work if not the concrete expression of a belief that
the target’s spiritual life is inferior without the offered religious
program? Does that render the missionary unfit for the bench because
she thinks less of her neighbor’s views?
The genius of liberal society is that individuals maintain
passionate attachments and beliefs in the private sphere, yet engage in
the civic sphere with those who do not share them. Our Supreme Court
recognized how the Boy Scouts did just that in restricting those
activities that inculcate values to youth to boys who adhere to Scout
policies, yet opening up Scouts retail stores to any interested shopper.
(Curran, supra, 17 Cal.4th 670, 699-700.) It is the same form of
pluralism that allows citizens to affiliate with the like-minded at Sabbath
religious services, yet work alongside peers with differing beliefs from
20
Monday to Friday.1
Membership in a religious community that affirms certain
nonuniversal doctrines does not disqualify that person from judicial
service. Judges belong to exclusive congregations, yet are fully able to
treat impartially litigants from all faiths, and those with none at all.
California judges do not use the bench as a platform with which to
reward their fellow congregants and penalize those outside the flock.
There is no reason to think Boy Scouts will do so either.
Regardless of their private (constitutionally protected) membership
policies, there is no evidence that Boy Scouts in any way discriminate in
their public service to those outside the Boy Scouts. They do not
consider an individual’s religion or sexual orientation in deciding
whether to assist in rescuing that individual from any position of danger
1
This form of pluralism is indeed exceptional to the United States. Many European
nations permit a far narrower range of private behavior. (See e.g. Widespread Support For
Banning Full Islamic Veil in Western Europe: Most Americans Disagree, Pew Global Attitudes
Project, July 8, 2010, available at
http://pewglobal.org/2010/07/08/widespread-support-for-banning-full-islamic-veil-in-western
-europe/; see also Majorities in Europe support ban of Burqa, but not in U.S. or China, The
Harris Poll, March 3, 2010, available at http:// www. harrisinteractive.com/
vault/HI_FinancialTimes_HarrisPoll_March_2010_02.pdf.) Similarly, since the Nazi era,
Germany has outlawed homeschooling, which it has justified by the “general interest of society
to avoid the emergence of parallel societies based on separate philosophical convictions.”
Konrad v. Germany, App. No. 35504/03, 8 (Eur. Ct. H.R. Sep. 11, 2006); Aaron T. Martin,
Homeschooling in Germany and the United States (2010) 27 Ariz. J. of Intl. and Comp. Law 225.
By contrast, the United States Supreme Court refused to impose compulsory high school
attendance laws against the Amish because forced attendance might extinguish that “parallel
society,” which resisted the “requirements of contemporary society exerting a hydraulic
insistence on conformity to majoritarian standards.” (Wisconsin v. Yoder (1972) 406 U.S. 205,
212, 217.)
21
or in determining what price to charge those who purchase supplies at
the Scouts stores. There is no basis, other than disapproval of the Boy
Scouts views, to think they are uniquely inclined to use their position to
punish those with whom they disagree.
Perhaps the strongest refutation of notion that a judge’s behavior
in the private sphere determines his decisionmaking in the public
sphere came in the Proposition 8 case proceedings. Was the presiding
judge fatally biased due to his own personal life? A reviewing court
found “no case suggesting that a judge has a duty to disclose
information about his personal life when such information does not
pertain to the judge's association with an individual having a clear,
concrete stake in the outcome of the litigation, and the Court is not aware
of any cases standing for that proposition.” Perry v. Schwarzeneggar
(N.D.Cal. 2011) 790 F.Supp. 1119, 1132 (emphasis added).)
The presumption that “all people in same-sex relationships
think alike” is an unreasonable presumption, and one which
has no place in legal reasoning. The presumption that Judge
Walker, by virtue of being in a same-sex relationship, had a
desire to be married that rendered him incapable of making
an impartial decision, is as warrantless as the presumption
that a female judge is incapable of being impartial in a case
in which women seek legal relief. On the contrary: it is
reasonable to presume that a female judge or a judge in a
same-sex relationship is capable of rising above any
personal predisposition and deciding such a case on the
merits.
22
(Id. at p. 1133 (emphasis added).)
The proposal, if adopted, will lead many talented attorneys
aspiring to a judicial career to avoid any protected First Amendment
activity, whether Boy Scouts membership, religious involvement, or even
political work on controversial causes. Our state will be the poorer for
it.
Mitchell Keiter SBN 156755
Keiter Appellate Law
The Beverly Hills Law Building
424 South Beverly Drive
Beverly Hills, CA 90212
310-553-8533
Mitchell,[email protected]
23
Restoring Religious Liberty in America Row 353 Comment
April 15, 2014
Honorable Richard D. Fybel
Associate Justice, Court of Appeal
District Four, Division Three
[email protected]
RE:
Proposed Amendments to California’s Code of Judicial Ethics.
Dear Justice Fybel:
Liberty Institute is a nonprofit, public interest law firm dedicated to defending and
restoring religious liberty in the United States. Liberty Institute provides pro bono legal
advice and representation to all persons of faith. Liberty Institute represents individuals,
churches, synagogues, ministries, charitable organizations, veterans’ organizations, state
and local governments, school districts, and public officials in exercising and
understanding religious liberty rights.
In response to the Supreme Court Advisory Committee’s Invitation to Comment
number SP 14-02, Liberty Institute respectfully submits the following comments
regarding the proposed amendments to Canon 2C of the California Code of Judicial
Ethics and the related revisions to the commentary to Canon 2C, Canon 3E, Canon
6D(5)(b), and the terminology of the Code. The proposed amendments and revisions to
California’s Code of Judicial Ethics are problematic for at least five reasons, all of which
emanate from First Amendment rights: (1) Freedom of Speech, (2) Freedom of
Association, (3) Freedom of Assembly, (4) Free Exercise of Religion, and (5) Title VII.1
Freedom of Speech
First, the proposed changes would have a chilling effect on speech and civic
participation by judges and aspiring judicial candidates. For example, the Advisory
Committee recommends removing the exception for nonprofit youth organizations so that
judges may not be members in an organization that practices “invidious discrimination”
on the basis of “gender” and “sexual orientation.” But the Code of Judicial Ethics
nowhere specifies what such invidious discrimination entails. So, for instance, judges
may not be able to participate in organizations that advocate for marriage being defined
as solely between one man and one woman—like the Republican Party of California or
1
Liberty Institute does not oppose the proposed removal of the commentary following Canon 3E,
which, according to the Advisory Committee, was added to “caution judges to be sensitive to the
concerns expressed by those advocating elimination of the [nonprofit youth organization]
exception” and operates to mandate disclosure of a judge’s membership in nonprofit youth
organizations that do not condone certain views regarding sexual orientation.
2001 West Plano Parkway, Suite 1600  Plano, Texas 75075  Phone: 972.941.4444  LibertyInstitute.org its affiliate Young Republican groups.2 Yet the United States Supreme Court and the
United States Court of Appeals for the Ninth Circuit have repeatedly held that attempts to
suppress political speech and party affiliation are anathema. NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 931-32 (1982) (“We have not been slow to recognize that
the protection of the First Amendment bars subtle as well as obvious devices by which
political association might be stifled.”); Long Beach Area Peace Network v. City of Long
Beach, 574 F.3d 1011, 1021 (9th Cir. 2009) (“Political speech is core First Amendment
speech, critical to the functioning of our democratic system.”).
Similarly, citing the Judicial Code, aspiring judges may be deemed disqualified or
less qualified by the Committee on Judicial Nominees Evaluation if they are members or
leaders of such political organizations. Even if the Committee did not rely upon the
Ethics Code in that way, the Code suggests that they would be validated in doing so; a
chilling effect is certain. Again, this chilling effect would strike at the heart of the First
Amendment and the democratic process it protects. See Williams v. Rhodes, 393 U.S. 23,
32 (1968) (“Competition in ideas and governmental policies is at the core of our electoral
process and of the First Amendment freedoms.”).
Finally, the chilling effect may extend to organizations that are populated by and
supportive of religious beliefs but are not officially “churches.” That effect may
significantly harm clients represented by Liberty Institute because the term “religious
organization” is left undefined. If the judicial branch broadly defines the term “nonprofit
youth organization” and narrowly defines the term “religious organization,” judges and
aspiring judges may not be able to participate in a host of charitable organizations
populated by religious individuals who hold traditional views on gender, marriage, and
sexuality—not simply the Boy Scouts of America: American Heritage Girls, Trail Life
USA, Teenage Republicans, Knights of Columbus, Fellowship of Christian Athletes,
Child Evangelism Fellowship, Frontier Girls, Upward, Young Life, Awana, and many
others. Contrary to the Advisory Committee’s commentary, the proposed amendments
and revisions affect a whole host of organizations.
2
The California Republican Party Platform provides:
The family is a foundation upon which American society has grown and
prospered for over 200 years. We support the two-parent family as the best
environment for raising children, and therefore believe that it is important to
define marriage as being between one man and one woman. We believe public
policy and education should not be exploited to present or teach homosexuality
as an acceptable “alternative” lifestyle. We oppose same-sex partner benefits,
child custody, and adoption.
California Republican Party Platform, available
2016%20Platform.pdf (accessed April 10, 2014).
at
http://cagop.org/documents/2012-
2
Freedom of Association
Second, the Committee’s proposed changes further impinge upon the freedom of
association under well-established United States Supreme Court precedent. “It is beyond
debate that freedom to engage in association for the advancement of beliefs and ideas is
an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech.” NAACP v. Ala. Ex rel. Patterson, 357
U.S. 449, 460 (1958) (citations omitted); Claiborne Hardware Co., 458 U.S. at 907–08
(reiterating that “the practice of persons sharing common views banding together to
achieve a common end is deeply embedded in the American political process[]” and “that
by collective effort individuals can make their views known, when, individually, their
voices would be faint or lost.” (quotation and citation omitted)). Furthermore, “it is
immaterial whether the beliefs sought to be advanced by association pertain to political,
economic, religious or cultural matters[.]” NAACP v. Ala. ex rel. Patterson, 357 U.S.
449, 460–61.
The Supreme Court has likewise affirmed that “expression on public issues has
always rested on the highest rung of the hierarchy of First Amendment values,”
Claiborne Hardware Co., 458 U.S. at 912 (quotation and citation omitted), and “[t]here is
a profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.” Id. (quotations and citation omitted). Accordingly,
the Court has held that even “forced disclosure of one’s political associations is, at least
in the absence of a compelling state interest, inconsistent with the First Amendment’s
guaranty of associational privacy.” Claiborne Hardware Co., 458 U.S. at 931–32
(citations omitted). Banning associations altogether is even more suspect.
Furthermore, the Supreme Court has specifically upheld the associational rights of
the Boy Scouts of America and groups with policies regarding sexual orientation. In Boy
Scouts of America v. Dale, the Court concluded that the Boy Scouts of America is an
expressive association and that changing the Boy Scouts’ policy on sexual orientation to
comport with New Jersey’s public accommodations law would “run[] afoul of the Scouts’
freedom of expressive association.” 530 U.S. 640, 656 (2000). That decision is directly
on point, and conflicts with the Advisory Committee’s proposed changes. Moreover, as
the Court recently reaffirmed, “[t]he right to freedom of association is a right enjoyed by
religious and secular groups alike.” Hosanna-Tabor v. EEOC, 132 S.Ct. 694, 706 (2012).
Yet in Dale, state law interfered with a group’s association rather than directly and
invidiously discriminating against individuals because of their beliefs—even when those
beliefs are explicitly religious—which is exactly what California’s Code of Judicial
Ethics proposes to do.
The Dale decision remains controlling law, and the principles and rationale
behind it are an extension of well-established Supreme Court precedent. United States v.
Winsdor overturned the Defense of Marriage Act on the grounds that it was an “unusual
deviation from the usual tradition of recognizing and accepting state definitions of
marriage,” in light of state laws conferring greater rights to those in same-sex unions,
3
contravening “state sovereign choices about who may be married.” 133 S.Ct. 2675,
2691–93 (2013). Windsor, however, did nothing to eliminate or diminish longestablished individual rights under the United States Constitution vis-à-vis states.3 Dale,
for example, is not even cited in Windsor. In sum, the Committee is wrong when it
proposes eradicating the “nonprofit youth organization” exemption due to unspecified
“changes in the law”; individuals’ rights to freedom of association, free exercise, and
speech are as robust as ever.
Freedom of Assembly
Third, the proposed changes also impinge upon judges and aspiring judges’ rights
“peaceably to assemble”—a close cousin to and progenitor of the freedom of association.
U.S. Const., amend 1. For instance, the United States Supreme Court upheld the
NAACP’s right to conduct a boycott of white business owners in a small town because it
“clearly involved constitutionally protected activity[,]” and implicated “[t]he established
elements of speech, assembly, association, and petition, [which,] though not identical, are
inseparable.” Claiborne Hardware Co., 458 U.S. at 911 (quotation and citation omitted).
If judges and judicial candidates are prohibited from assembling alongside likeminded, religiously motivated citizens, they will be denied their First Amendment right to
move individual beliefs into collective action. See generally John D. Inazu, Liberty’s
Refuge: The Forgotten Freedom of Assembly 1–3 (2012) (Yale University Press 2012)
(“The freedom of assembly has been at the heart of some of the most important social
movements in American history: antebellum abolitionism, women’s suffrage in the
nineteenth and twentieth centuries, the labor movement in the Progressive Era and the
New Deal, and the Civil Rights Movement. . . . Even as late as 1973, John Rawls
characterized it as one of the ‘basic liberties.’”) (citation omitted). This chilling effect on
collective action is thoroughly un-American.
Free Exercise of Religion
Fourth, the proposed changes run afoul of the Free Exercise and Establishment
Clauses of the First Amendment. Most obviously, the proposed changes would bar
judges and judicial candidates from becoming members of organizations like the Boy
Scouts, which is a pro-religious organization but not a “church.” Dale, 530 U.S. at 667
(noting that the Boy Scouts promote “religions and religious beliefs,” as well as moral
views). And should the judicial branch give narrow definition to the undefined term
“religious organization,” the proposed changes may bar membership in civic and
charitable organizations that hold traditional beliefs on gender, marriage, and sexuality—
even when those beliefs are expressly rooted in religious tenets. See, e.g., Knights of
Columbus, Public Policy Statements, Marriage and Family, available at
3
On a more fundamental level, Windsor recognized states’ rights to recognize broader individual
rights than the federal constitution or federal law. Id. However, Windsor empowered no state to
exclude, suppress, or ban individuals on the basis of long-held federal constitutional rights. Such
a decision would have been a remarkable deviation, overruling centuries of precedent with regard
to individual liberties.
4
http://www.kofc.org/un/en/public_policy/marriage.html (accessed April 14, 2014) (“The
Knights of Columbus thus believes marriage’s fundamental nature is a life-long,
indissoluble union between a man and a woman tending toward the fruitful communion
of their persons.”) (citing Catechism of the Roman Catholic Church, Part Three, Section
Two, Chapter Two, Article 6, Paragraphs 1603, 1661; Familiaris Consortio, 19).
Consequently, the proposed changes burden the free exercise of religion by judges and
judicial candidates—even if their beliefs are sincerely held or even sacramental in nature.
See, e.g., Catechism of the Roman Catholic Church, Part Three, Section Two, Chapter
Two, Article 6, Paragraph 2360 (“Marriage bonds between baptized persons are
sanctified by the sacrament.”).
Additionally, the proposed changes raise substantial Establishment Clause
concerns. The proposed Code of Judicial Ethics language would (1) ban membership in
organizations without regard to the religious nature of an individual’s belief, and (2)
exempt some unspecified but perhaps narrow class of “religious organizations,” requiring
the state to determine which organizations are sufficiently “religious,” and chilling
participation in organizations until clarity is provided. Yet, under Establishment Clause
precedent, courts (and states) must eschew searching into organizations’ character and
purpose to decide whether an organization is sufficiently “religious.” As the United
States Court of Appeals for the Ninth Circuit noted in Spencer v. World Vision, Inc., “. . .
we have repeatedly been asked to engage in exactly this sort of inquiry into ‘what does or
does not have religious meaning’ . . . . The very act of making that determination,
however, runs counter to the ‘core of the constitutional guarantee against religious
establishment.’” 633 F.3d 723, 731 (9th Cir. 2011) (quoting New York v. Cathedral
Acad., 434 U.S. 125, 133 (1977); Mitchell v. Helms, 530 U.S. 793, 828 (“[I]nquiry into . .
. religious views . . . is not only unnecessary but also offensive. It is well established . . .
that courts should refrain from trolling through a person’s or institution’s religious
beliefs.”); NLRB v. Catholic Bishop, 440 U.S. 490, 502 (1979) (noting that, when
inquiring into whether a particular position was religious or secular, “[i]t is not only the
conclusions that may be reached by the [government agency] which may impinge on
rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to
findings and conclusions” (emphasis added)).
In many ways, the proposed changes present Free Exercise problems that are
inextricable from the Freedom of Association concerns raised above—and that further
emphasize the extent of the constitutional problem. For instance, the proposed changes
do nothing to specify how broadly the “religious organizations” exemption will apply.
Accordingly, the Code of Judicial Ethics raises dire Free Exercise concerns: the Code
causes a chilling effect for those wishing to be members of particular worship-related
organizations, or those who carry out worship in certain ways. See Hosanna-Tabor, 132
S.Ct. at 711–12 (“The First Amendment protects the freedom of religious groups to
engage in certain key religious activities, including the conducting of worship services
and other religious ceremonies and rituals, as well as the critical process of
communicating the faith.”). Yet individuals have the right to freely exercise their
religion without state intrusion into the particular forms in which they choose to do so.
5
This concern is not merely academic: numerous organizations engage in religious
activity, yet those organizations may or may not be characterized as “religious
organizations.” For instance, does the California Code of Judicial Ethics apply to bar
membership in organizations such as World Vision, an international charitable
organization dedicated to fighting poverty and injustice—but which recently reaffirmed
its religious commitment not to employ individuals in same-sex unions? Or would the
new rules apply to Trail Life USA, a Christian alternative to the Boy Scouts that has an
active presence in California? If not, the Code of Judicial Ethics must explicitly clarify
that it does not: otherwise, the Code is constitutionally infirm.
Title VII of the Civil Rights Act of 1964
Finally, California’s Code of Judicial Ethics, as written, invites violation of Title
VII of the Civil Rights Act of 1964, by discriminating on the basis of religious beliefs.
42 U.S.C. § 1981 et seq. (2014). Title VII prohibits firing, failing to hire, or otherwise
discriminating against any individual because of that individual’s race, color, religion,
sex, or national origin. 42 U.S.C. § 2000e-2 (emphasis added) (2014). Under Title VII,
the term religion “includes all aspects of religious observance and practice, as well as
belief,” such that it protects religious beliefs. 42 U.S.C. § 2000e(j) (2014). Title VII
does not prohibit discrimination on the basis of sexual orientation. See 42 U.S.C. §
2000e-2. Individuals, including judges, may not be barred from employment or
discriminated against on the basis of their religious beliefs, which is exactly what the
Code of Judicial Ethics does by categorically discriminating against individual judges
who have membership in organizations, when the organizations are singled out
specifically on the basis of beliefs that are religious in nature to individual judges.
Conclusion
At a minimum, as it removes exemptions, the Advisory Committee should clarify
that the exemption for religious organizations is very broad and would cover
organizations as diverse as churches, schools, associations, ministries, or other religious
or religiously affiliated organizations. In particular, the Committee should specify that it
is creating such a broad exemption in order to respect basic religious freedom consistent
with Supreme Court and Ninth Circuit precedent.
Likewise, individual judges with religious beliefs should be exempted from the
membership ban on organizations that discriminate based upon sexual orientation.
Anything less would likely place any authority enforcing the rule in violation of the
United States Constitution, to say nothing of the immense chilling effect it would have on
constitutionally-protected religious freedom.
Religious minorities who sought relief from state intrusion into and control of
religious beliefs founded the United States of America. Our founders adopted the First
Amendment “against th[at] background,” Hosanna-Tabor v. EEOC, 132 S.Ct. 694, 702–
03 (2012). It protects religious beliefs from government suppression as well as the Boy
Scouts’ particular beliefs regarding gender, marriage, and sexuality. Dale, 530 U.S. 640,
6
647–51 (2000) (rejecting the New Jersey Supreme Court’s reasoning and concluding that
“it is not the role of the courts to reject a group’s expressed values because they disagree
with those values or find them internally inconsistent.”). Thus, it is especially
troubling—and constitutionally impermissible—for the State of California to bar judges’
membership in organizations that hold traditional beliefs on gender, marriage, and
sexuality—beliefs common to Judaism, Christianity, Islam, and myriad Western
philosophers.
For many Californians, issues of gender, marriage, and sexuality are sacred—
indeed, sacramental to many—and touch upon core issues of faith, values, and identity.
The Constitution has long protected freedom for Americans to express—and associate
with others who express—disagreement over even those most sacred of beliefs:
In Roberts v. United States Jaycees, 468 U.S. 609, 622, 82 L. Ed. 2d 462,
104 S. Ct. 3244 (1984), we observed that “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.” This right is crucial
in preventing the majority from imposing its views on groups that would
rather express other, perhaps unpopular, ideas. See ibid. (stating that
protection of the right to expressive association is “especially important in
preserving political and cultural diversity and in shielding dissident
expression from suppression by the majority”).
Dale, 530 U.S. at 647–48. Or, as President John F. Kennedy expressed:
In a world where society is becoming even more close knit—where we rub
elbows with our fellows—it is not enough that we have “a government
which gives no sanction to bigotry and no assistance to persecution.” It is
incumbent upon all of us to encourage a spirit of tolerance, not only from
Government but from one group within the community toward another.
Tolerance implies no lack of commitment to one’s own beliefs. Rather, it
condemns the oppression or persecution of others. In achieving this spirit
of tolerance throughout the community, the moral leadership of every
person and every Government official, including the Chief Executive,
must play an important part.
October 26, 1960, Letter and Statements to the National Conference of Christians and
Jews, available at http://www.jfklink.com/speeches/joint/app24_christiansandjews.html
(accessed April 10, 2014).
In that spirit, the Code of Judicial Ethics should respect that judges, too, may have
sharp disagreement, even over core values. For the judiciary to retain an appearance of
impartiality, judges must learn to look beyond these disagreements and treat all equally
before the law.
7
For these reasons, Liberty Institute urges the Supreme Court of California and its
Advisory Committee on the Code of Judicial Ethics to conform the Code of Judicial
Ethics to the First Amendment, established Ninth Circuit precedent, and established
United States Supreme Court precedent.
Sincerely,
Jeffrey C. Mateer
General Counsel
8
Row 354 Comment
Dana Cody, Esq.
Executive Director
Catherine W. Short, Esq.
Legal Director
Mary Riley
Administrative Director
Allison K. Aranda, Esq.
Senior Staff Counsel
Board of Directors
John R. Streett, Esq.
Chairman
Dana Cody, Esq.
Joanna Galbraith, Esq.
Christian Hon
Royce Hood
Marcella Tyler Ketelhut
David Shaneyfelt, Esq
Terry L. Thompson, Esq.
Colette Wilson, Esq.
Anthony E. Wynne, JD
Advisory Board
The Hon. Steve Baldwin
San Diego, California
Daniel Cathcart, Esq.
Los Angeles, California
Raymond Dennehy, PhD.
San Francisco, California
The Rev. Joseph D. Fessio, SJ
San Francisco, California
Robert P. George
Princeton University
The Hon. Ray Haynes
Riverside, California
James Hirsen, Esq.
Riverside, California
The Hon. Howard Kaloogian
Los Angeles, California
David Llewellyn, Esq.
Sacramento, California
Anne J. O’Connor, Esq.
New Jersey
Charles E. Rice, Esq.
South Bend, Indiana
Ben Stein, Esq.
West Hollywood, California
Andrew Zepeda, Esq.
Beverly Hills, California
Northern California
(Administration)
P.O. Box 2105
Napa, California 94558
(707) 224–6675
Southern California
P.O. Box 1313
Ojai, California 93024
(805) 640–1940
www.LLDF.org
LIFE: AT THE HEART OF THE LAW
April 15, 2014
Supreme Court Advisory Committee on
The Code of Judicial Ethics
350 McAllister Street
BY FACSIMILE AND ELECTRONIC TRANSMISSION
Attn: Honorable Richard D. Fybel, Chairperson
RE: Comment on Proposed Amendment to Canon 2C of the Code of
Judicial Ethics/SP14-02
Dear Chair Fybel and Committee Members:
Life Legal Defense Foundation (LLDF), submits these comments in
opposition to the proposed Amendment to Canon 2C the Code of Judicial
Ethics.
This Committee’s Invitation to Comment (SP14-02) (“Invitation”) focuses
on a single intended result from this proposed change: the Boy Scouts of
America (BSA) will no longer be excepted from the category of
organizations that practice “invidious discrimination” on the basis of sexual
orientation. 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.
The Commentary on Canon 2C states, “[A]n organization is generally said
to discriminate invidiously if it arbitrarily excludes from membership on
the basis of race, religion, sex, gender, national origin, ethnicity, or sexual
orientation persons who would otherwise be admitted to membership."
“Arbitrary” is defined in the Oxford English Dictionary as “based on
random choice or personal whim, rather than any reason or system.” The
BSA has spent decades considering issues relating to the qualifications for
membership and leadership and how those relate to its mission of preparing
young men to make ethical and moral choices and to become responsible
Supreme Court Advisory Committee on the
Code of Judicial Ethics
April 15, 2014
citizens and leaders. One might disagree with its judgments on particular matters,
including its decision regarding the participation or non-participation of boys and
men with homosexual orientation, but to call such decisions “arbitrary” drains all
meaning out of Canon 2C, rendering the Canon itself arbitrary in its application.
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. Yet we know, because the Committee tells us, that the
BSA’s policy falls within the meaning of “excluding from membership” a particular
class of people, even though this reading is not found on the face of the Canon and
its Commentary.
If the Committee’s reading is the correct interpretation, then the military too
“excludes from membership” persons on the basis of gender, because there are
many jobs in the military that are closed to women. Since the military excludes
women from [unlimited] membership, then the proposed Amendment will preclude
judges from holding positions as military reservists, unless these exclusions are
deemed not to be “arbitrary.” Who will decide this? As seen with the BSA, the fact
that the organization itself has studied the matter carefully and made a decision
based its best judgment as to the needs of the organization is not enough to prevent
the Committee from branding an exclusion “arbitrary.” Rather, the Committee itself
decides arbitrarily, or at least without disclosing its thinking, which organizations
are acting arbitrarily and which are not in terms of limiting the participation of
certain people to certain functions.
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.
Opponents of abortion saw this dynamic in play in the early 1990’s. Abortion
supporters filed a number of lawsuits against anti-abortion protesters using 42
U.S.C. §1985(3), a post-Civil-War era law designed to protect blacks and their
Republican supporters from illegal interference with constitutional rights. One
element of a claim under §1985(3) is that the defendants’ conduct be motivated by a
“class-based, invidiously discriminatory animus.” Griffin v. Breckinridge, 403 U.S.
88, 102 (1971). The plaintiff abortion rights organizations argued that opposition to
abortion constituted a discriminatory animus against women as a class.
Shockingly, the majority of federal circuits agreed with the plaintiffs’ reasoning. It
took a decision from the United States Supreme Court to establish that opposition to
abortion could not be equated with a discriminatory animus against women -- at
(707) 224–6675
www.LLDF.org
2
Supreme Court Advisory Committee on the
Code of Judicial Ethics
April 15, 2014
least for purposes of §1985(3). Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 269 – 273 (1994)
Despite this setback, abortion advocates welcome any opportunity to deploy this
“discrimination” argument in other contexts. If they saw an opening, these
advocates would undoubtedly argue that judges who had belonged to or supported
any pro-life organization (such as Life Legal Defense Foundation) should be
disqualified from the bench because such association is proof of a discriminatory
bias against women.
This proposed amendment has as its overtly-stated purpose the branding of the BSA
as an organization whose members must be assumed to be biased and thus unfit for
the bench. The Committee states that “eliminating the exemption . . . would
enhance public confidence in the impartiality of the judiciary.” On the contrary, 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.
Life Legal Defense Foundation strongly urges the rejection of the proposed
Amendment.
Very truly yours,
/s/
Catherine W. Short
Legal Director
cc: Board of Directors
(707) 224–6675
www.LLDF.org
3
Row 552 Comment
Row 582 Comment
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