Judge James Lambden California 1st District Court of Appeal Left Scouting as an Assistant
Scoutmaster after 35 years because his Professional Ethics was in Conflict with the BSA's Policy of Discrimination;
but the BSA has a Loophole
CA Judges Can Stay in Scouts
PlanetOut News Staff
Friday, December 22, 2000 / 11:00 PM
California's Code of Judicial Ethics contains a loophole tailor-made for the Boy Scouts, but not all judges agree
that it's ethical to slip through it.
The Boy Scouts of America's (BSA) policy of excluding gays continues to raise questions of funding and of access
to public facilities and schools in communities across the U.S., but in California the debate entered another arena:
judicial ethics. In general, the California Code of Judicial Ethics, known as the judicial canons, prohibits judges
from participating in organizations that practice "invidious discrimination," including discrimination
based on sexual orientation. But there are two exceptions:
one for the military and the other for non-profit youth organizations, as long as a judge's participation in the
latter does not demean the judicial office, interfere with the performance of judicial duties or cast reasonable
doubt on the judge's ability to act impartially. On December 21, the California Supreme Court found that there's
no need to change that standard since BSA went to the U.S. Supreme Court to protect its policy against gays; in
June, the court found that BSA's constitutional right to
"expressive association" takes precedence over state laws prohibiting sexual orientation discrimination
(see PlanetOut News of June 28). It's still up to judges to judge for themselves.
One California judge had already made a personal decision that he had to leave Scouting after 35 years of involvement.
In September, Justice James Lambden of the state's 1st District Court of Appeal left his volunteer position as
an assistant scoutmaster to protest BSA's policy. In his letter of resignation to BSA, he wrote that the U.S. Supreme
Court case "has made
reliance upon the state's exemption personally unacceptable to me and ethically questionable for judges everywhere."
The difference the legal case made to him was that BSA "expressly stated, for [the] first time, that discrimination
against homosexuals is an official policy fundamental to the purposes of the Boy Scouts." (PlanetOut News
has not heard of any other
California judge leaving BSA.)
Lambden, the Bar Association of San Francisco and the Bay Area Lawyers for Individual Freedom had each specifically
asked the state's highest court -- which is responsible for both the interpretation and the enforcement of the
Judicial Code -- to consider changing the judicial canons in light of BSA's U.S. Supreme Court brief. According
to Lambda Legal Defense and Education Fund attorney Jon Davidson, the youth group exemption in the judicial canons
was put there specifically for BSA. Other major youth organizations, such as Girl Scouts of America, 4-H Clubs,
and the Boys and Girls Clubs of America, do not have policies against gays or lesbians. The California Supreme
Court in 1998 made its own ruling that Boy Scouts were a private organization which could discriminate against
gay men, atheists and agnostics, rather than a "public accommodation" subject to the state's human rights
law (see PlanetOut News of March 24, 1998).