The California supreme court has decreed that state judges who are members of the Boy Scouts of America may have to disqualify themselves from hearing cases involving gay issues. But in a rule issued Wednesday that affects California's entire 2,000-member judiciary, the state's top court stopped short of barring judges from being members of the Irving, Tex.-based Boy Scouts, as several local bar associations had requested.
Legal experts said the move by the seven justices is the nation's first ruling following the U.S. Supreme Court's decision in 2000 allowing the Boy Scouts to bar gay people from membership. "There is no other state that has adopted an express rule like this," said Cynthia Gray, director of the American Judicature Society's Center for Judicial Ethics.
California judicial canons already demand that judges remove themselves from groups that discriminate against women and minorities. Rules adopted eight years ago forbade judges from being members in organizations that discriminate against lesbians and gays, but they allowed membership in "nonprofit youth organizations"--an exception carved out for the Boy Scouts.
The issue surfaced three years ago, when the U.S. Supreme Court upheld the Boy Scouts' discriminatory antigay policy. The Boy Scouts argued that its code, requiring members to be "morally straight" and "clean," excluded gay men. The court said the Boy Scouts was entitled to define its own principles. "What the California supreme court appears to be saying is that a judge who is a member of the Boy Scouts may have to disqualify himself in appropriate cases," said Angela Bradstreet, a former San Francisco Bar Association president who urged the Supreme Court to alter its ruling.
Judges with ties to the Scouts would either have to step down or notify litigants in cases dealing with antigay discrimination in the workplace as well as "any case involving gay adoptions or cases in which the sexuality of the litigant is an issue," Bradstreet said.
Beth Jay, chief attorney for Chief Justice Ronald George, said the high court's decision is a compromise for those wanting an outright ban on membership in the Scouts while protecting judges' right to practice religion, given that many Boy Scouts programs are run through religious organizations. "The court was paying careful attention, both to those who were making the request for change and to those for whom participation in the Scouts is an important value for religious or other reasons, and tried to strike a balance between those interests," Jay said.