Mentally awake, morally straight, and unfit to sit? Judicial ethics, the First Amendment, and the Boy Scouts of America.

• Author: Mondel, Johnathan A.
• Position: NOTE

Table of Contents Introduction I. Revisions to California's Code of Judicial Ethics A. Reactions B. Canon 2C's Application to Boy Scout Membership II. Religious Exercise and the Boy Scouts A. Free Exercise B. No Religious Test Clause III. The First Amendment Rights of Intimate and Expressive Association A. The Right of Association: Intimate, Expressive, or Not B. As Applied to Public Employees and Judges 1. History, balancing, and germaneness: Pickering and Letter Carriers 2. Judicial religious beliefs and political affiliations 3. Williams-Yulee: strict scrutiny as the applicable standard IV. Application to Canon 2C A. Narrow Tailoring B. Least Restrictive Means Conclusion Introduction

"The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow-creatures, and of acting in common with them. I am therefore led to conclude that the right of association is almost as inalienable as the right of personal liberty. No legislator can attack it without impairing the very foundations of society."

--Alexis de Tocqueville, Democracy in America (1)

Alexis de Tocqueville observed that "[i]n no country in the world has the principle of association been more successfully used ... than in America." (2) As of January 21, 2016, judges in California have had cause to look wistfully upon de Tocqueville's words and wonder, "What happened?" On that day, California's judges were officially prohibited from belonging to the Boy Scouts of America if they wished to continue serving as judges. (3) The Supreme Court of California voted to remove the "Boy Scout exception" in Canon 2C of California's Code of Judicial Ethics, which allowed judges to belong to nonprofit youth organizations, even if those organizations practice "invidious discrimination" on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (4) The California Supreme Court's decision was intended to "prohibit[] judges from being members of or playing a leadership role in the BSA" in order to "enhance public confidence in the impartiality of the judiciary." (5)

The discussion surrounding the end of the Boy Scout exception has been extremely polarized. On the one hand, supporters of increased antidiscrimination protections have celebrated the revision as a step in the right direction towards greater equality and protection. On the other hand, supporters of the Boy Scouts have claimed that closing the loophole is nothing short of a direct attack on judges' fundamental First Amendment rights to exercise their religion and associate freely.

This Note joins and adds to this discussion by examining each side's arguments and analyzing their claims through the lens of First Amendment doctrine. This Note concludes that legal arguments that Canon 2C unconstitutionally infringes the free exercise rights of judges are likely to fail in light of restrictive case law, while claims that Canon 2C infringes their associational rights are more likely to succeed.

The analysis proceeds in four parts. Part I discusses the history of Canon 2C and the debate surrounding the California Supreme Court's recent revisions. It lays out the various arguments that judges and commentators have raised against Canon 2C. Part II examines the limitations of a free exercise challenge against the application of Canon 2C to judges. It then proposes an alternative religious argument against Canon 2C's Boy Scout prohibition, grounded in the No Religious Test Clause in Article VI of the U.S. Constitution. After Part II's treatment of religious arguments, Part III discusses the development of First Amendment freedom of association doctrine as a general matter. Part III then focuses specifically on public employee speech with an emphasis on cases involving restrictions on judicial speech and association. Part III concludes by discussing the recent Supreme Court decision of Williams-Yulee v. Florida Bar, which clearly confirmed that any policy restricting the First Amendment rights of judges must pass strict scrutiny. (6) This Note concludes in Part IV by applying the doctrine discussed in Part III, arguing that Canon 2C, as it currently exists, does not pass strict scrutiny because it is neither narrowly tailored nor the least restrictive means available for preventing bias in California's judiciary.

1. Revisions to California's Code of Judicial Ethics

   1. Reactions

      On January 23, 2015, the Supreme Court of California announced that it had voted to remove the California Code of Judicial Ethics (the Code) exception allowing judges to belong to nonprofit youth organizations that practice "invidious discrimination" on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (7) Canon 2 of the Code lays out broad rules mandating that judges "shall avoid impropriety and the appearance of impropriety" in all of their activities. (8) Canon 2C specifically addresses judicial membership in organizations. It forbids judges from holding membership in any organization that practices invidious discrimination on the basis of a list of specific characteristics. (9) Before the California Supreme Court's revisions, the text of Canon 2C stated: "this canon does not bar membership in a nonprofit youth organization." (10) The old Advisory Committee commentary to Canon 2C explained that this exception aimed to "accommodate individual rights of intimate association and free expression." (11) The new Advisory Committee commentary issued with the January 2015 revisions simply recognizes that this exception no longer exists. (12) It does not bother to address the important, and constitutionally protected, rights of intimate association and free expression.

      The only remaining exception to this rule allows judges to belong to religious organizations that practice invidious discrimination (13) (such as the Catholic Church and Orthodox Judaism, which have exclusively male priests and rabbis, respectively). Judges must comply with the revised rule or they will be deemed unfit to serve as impartial arbiters of the law. (14) This revision places California in the company of the twenty-three other states that prohibit membership in what the ABA Model Code of Judicial Conduct calls "discriminatory organizations" without an explicit exception for nonprofit youth organizations. (15) Many likely controversies will arise when these prohibitions collide with judicial membership in the Boy Scouts of America (BSA).

      Reactions to the end of the "Boy Scout loophole" (16) have (predictably) been wide ranging. On one side, Judge Humes of the California Court of Appeal praised the revision, arguing that the exception "incites distrust in judicial impartiality, demeans gay and lesbian judges and is offensive and harmful." (17) On the other side, Judge Kronlund of the San Joaquin County Superior Court argued that the newly revised Code would be an "infringement of [her] right to free exercise of religion as guaranteed by the First Amendment." (18) Commentators have also suggested that prohibiting judicial membership in organizations like the Boy Scouts impedes the expressive rights of judges. (19) This Note argues that this latter view--that protections for expressive association should prevail--is the most compelling in light of existing First Amendment doctrine.

   2. Canon 2C's Application to Boy Scout Membership

      When the California Supreme Court approved the revisions to Canon 2C, the prohibition would have barred judges from affiliation with any Boy Scout troop, as the BSA then maintained a national policy against gay adult Scout leaders. (20) The national policy meant that any local Boy Scout troop (that followed the policy) constituted an organization that practiced invidious discrimination on the basis of sexual orientation. A recent policy change adopted by the BSA's executive board will add an additional step to the inquiry whether a judge, as a member of the Boy Scouts, belongs to a group that practices invidious discrimination. On July 27, 2015, the executive board of the BSA voted to repeal its national policy prohibiting homosexual adult volunteers and scoutmasters. (21) This policy shift was foreshadowed by comments by Robert Gates, the current president of the BSA, who oversaw a similar policy change regarding sexual orientation as Secretary of Defense with the repeal of "don't ask, don't tell." (22)

      The new BSA policy is not, however, a global policy change, nor is it a panacea for challenges to judicial impartiality. The July 27 resolution simply removed the national prohibition against openly gay adult leaders and employees. (23) All chartered organizations (i.e., the local troops) will still have discretion to select their adult leaders, and religious chartered organizations have explicit permission "to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality." (24) The policy change leaves the door open for discrimination at the local troop level in California; (25) therefore a BSA-affiliated judge could still be considered a member of an organization that practices invidious discrimination on the basis of sexual orientation. The only difference now is that the inquiry will focus on the one troop that the judge is associated with and its specific policies, rather than the national organization and its policies. (26)

      The California Code Advisory Committee's commentary provides limited guidance for how this inquiry should be conducted. It discusses the "complex question" of whether an organization practices invidious discrimination and states that the answer depends on the organization's membership practices and "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 in fact and effect an intimate, purely private...