May a judge be a scoutmaster? Dale, white, and the new Model Code of Judicial Conduct.

• Author: Grindlay, Sean V.

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. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society. (1)

~Alexis de Tocqueville

INTRODUCTION

In February 2007, the American Bar Association's House of Delegates approved (2) a revised version of the Model Code of Judicial Conduct--a model set of rules governing judges that has been adopted in some form in the majority of states. (3) Among the provisions approved by the House of Delegates is Rule 3.6, which prohibits judges from belonging to "any organization that practices invidious discrimination on the basis of ... sexual orientation." (4) Since the Rule defines "invidious discrimination" in vague, subjective, and rather opaque language, (5) it could easily be construed to prohibit judges from belonging to such groups as the Boy Scouts of America. (6)

This Note argues that, as applied to the Boy Scouts, such a prohibition would conflict with the right to freedom of association articulated in First Amendment jurisprudence--especially in light of recent Supreme Court decisions reaffirming the right of private groups to associational expression (7) and the applicability of First Amendment protections to judges. (8) Even overlooking any constitutional defects, this Note argues that the Rule should be rejected for policy reasons.

Part I of this Note examines the Rule and its purpose. Part II discusses the constitutional right of free association and relevant court decisions, especially as these decisions involve public officers and, more particularly, judges. Part III analyzes the Rule under the constitutional framework provided by these decisions. Part IV briefly examines the Rule from a policy perspective, and Part V addresses potential counter-arguments to the thesis that Rule 3.6 conflicts with the right to freedom of association. This Note concludes with a recommendation that states reject the revised version of the Rule.

1. BACKGROUND OF RULE 3.6

   The American Bar Association ("ABA") has long been involved in the codification of standards of judicial ethics. (9) In 1924, the ABA published its Canons of Judicial Ethics as guidelines for the states; (10) these hortatory provisions were replaced in 1972 by the Model Code of Judicial Conduct, which was specifically designed to be enforceable. (11) In 1990, after a comprehensive study, the ABA revised the Model Code to address several perceived problems. (12) In 2003, the year after the U.S. Supreme Court invalidated a Model Code-derived rule of judicial conduct on First Amendment grounds, (13) the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct ("Commission") was formed to rework the rules yet again. (14) The Commission's deliberations resulted eventually in the revised Model Code, which received the approval of the ABA's House of Delegates in February 2007. (15) The ABA, of course, does not have the last word; as a model law, the Code is binding only to the extent that a jurisdiction chooses to adopt it. (16)

   Section 2C of the 1990 Model Code, (17) which, in some form or another, still governs in most jurisdictions, provides as follows: "A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin." (18) Like many other sections of the Code, Section 2C has undergone a revision. In its incarnation as Rule 3.6 of the new Code--titled "Affiliation with Discriminatory Organizations"--the provision now reads:

   (A) 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.

   (B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge's attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge's attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization's practices. (19)

   Recognizing the vagueness of the term "invidious discrimination," the official commentary to Rule 3.6 attempts to flesh out its meaning:

   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. (20) The commentary also explains the rationale for the Rule's prohibitions as centering on judicial impartiality:

   A judge's public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge's membership in an organization that practices invidious discrimination creates the perception that the judge's impartiality is impaired. (21) The comments further provide that "[w]hen a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization." (22) Finally, the commentary indicates that "membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule" and that Rule 3.6 "does not apply to national or state military service." (23)

   As indicated above, Rule 3.6 differs from its predecessor in that it adds the terms "gender," (24) "ethnicity," and "sexual orientation" to the list of prohibited bases of discrimination and adds the prohibition against using an organization's benefits or facilities. (25) What prompted these modifications? Although the Final Draft Report submitted to the House of Delegates is not helpful on this point, (26) Mark Harrison, the chairman of the Commission, has described the purpose as "mak[ing] sure that judges aren't viewed as bigots." (27) An Associated Press article described the changes as "energized in part by the Supreme Court's ruling" in Lawrence v. Texas (28) and by the conviction that "[j]udges are on the front line of battles over legal rights for same-sex couples and should never belong to an organization that discriminates against gays." (29)

   Significantly, the same Associated Press article names the Boy Scouts as a group that might fall within the Rule's scope. (30) The reference is not pure speculation; the Boy Scouts has faced quite a bit of adverse (one might even say punitive) government action in the past several years. (31) Indeed, the group has arisen so often in discussions of the proposal that the Scouts' counsel sent Harrison a letter expressing its concern and requesting "that the ABA reject the proposed rule or, in the alternative, specifically cite Boy Scouts of America as an example of an organization with which a judge may associate." (32) Obviously, the ABA has taken neither approach, leaving the Boy Scouts--and judges who are members thereof-understandably worried.

   As will be discussed in more detail below, none of the possible exemptions mentioned in the Commentary to Rule 3.6 is likely to apply to the Boy Scouts. (33) Although the group adheres to and expresses certain moral beliefs, it is not a religious organization, and it is most likely too large and public to be deemed "an intimate, purely private organization whose membership limitations could not constitutionally be prohibited." (34) Finally, "whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest"--which, like the group's intimacy, is only a "factor" in Rule 3.6's application (35)--is simply too vague and uncertain a standard to provide adequate guidance (much less protection) to judges affiliated with the Boy Scouts. (36)

2. FREEDOM OF ASSOCIATION

   1. Generally

      Rule 3.6's restriction on the types of associations to which judges may belong raises important constitutional questions. American courts have long recognized freedom of association to be among the rights guaranteed by the First Amendment. (37) Although the concept dates at least as far back as the Constitution itself, (38) it was first explicitly recognized by the United States Supreme Court in the 1958 case of NAACP v. Alabama ex rel. Patterson, (39) in which the Court held that the State of Alabama could not constitutionally order the NAACP to produce the names and addresses of all its members and agents in the state. (40) The production order, the Court ruled, "must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." (41) Discussing the nature of this right, the Court explained that it is an essential element of liberty:

      Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the...