Justice for All
California's high court is conflicted on Scouts
Sunday, July 6, 2003
Scouting for All commends the recent decision by the justices of the California Supreme Court to amend the Code
of Judicial Ethics, which requires California judges to avoid the appearance of partiality inherent in membership
in youth organizations that practice discrimination.
This decision is right and proper. California judges are already barred from belonging to groups that practice
"invidious discrimination on the basis of . . . sexual orientation" (among other categories). But a loophole
allowing affiliation in "nonprofit youth organizations," despite their discriminatory nature, was inserted
in the original language specifically to exempt the Boy Scouts.
Because the Boy Scouts of America has proclaimed that it officially discriminates against gays, judges who participate
in Scouting now will be obliged to acknowledge their affiliation with the Scouts in any case before them that touches
upon sexual orientation or disqualify themselves from that case.
The Supreme Court justices did not go as far as the bar associations of San Francisco, Alameda, Santa Clara and
Los Angeles counties in closing that loophole. Instead, they sought to balance the need for judicial impartiality
and propriety while maintaining a judge's right of free association. The justices accomplished this balance by
requiring disclosure of membership in discriminatory youth groups, such as the Scouts.
We are puzzled that the California judiciary is so clear and forceful against discrimination for every other group
except nonprofit youth organizations. Teaching kids to reject others is especially repugnant. Apparently, gay-bashing
within youth groups is sanctioned. What is at play here are the old lies that gays "recruit" youth, or
that a gay presence automatically implies the potential for child molestation.
Discrimination based upon identity alone rather than behavior is wrong, whether that discrimination is practiced
by a group for youth or adults. Those who would deny gays equality do not concede that the behavior of gays can
be as mature and responsible as anyone else's. They have yet to understand that sexual orientation is not a chosen
"lifestyle," but a fundamental life identity. The crux of the "culture war" regarding intolerance
of gays by some (but not all) religious groups hangs upon this simple but absolutely critical misperception.
Many people see discrimination by the Boy Scouts as incidental or remote from Scouting ideals and activities. Some
folks actually believe that there are no gay Boy Scouts or Scout leaders. But ignorance or indifference does not
make discrimination any less painful to the legions of gay men and boys who were, and are, exemplary Scouts, or
who have been forced from Scouting because of "invidious discrimination." Youth especially needs the
guidance and benefit of tolerant and caring adults.
A judge affiliated with the Boy Scouts, at the very least, can vigorously advocate changing the policy of discrimination
against gays within BSA. Judicial behavior ought to reflect high standards and exemplify the most dispassionate
American ideals of justness, fairness and tolerance. Why would a judge want to be affiliated with an organization
that discriminates against an entire class of citizens? Although the recent U.S. Supreme Court decision in Lawrence
and Garner vs. Texas, which overturned the few remaining sodomy laws, does not bear directly upon the affiliation
of California judges, it nevertheless underscores the fact
that the judiciary must not be perceived to condone discriminat ion.
Scouting For All seeks no harm to Scouting; in fact, we esteem Scouting as a great program for youth, which is
why we seek to hold it to its highest ideals.
Our "agenda" is simple and straightforward: That men and boys in Scouting who happen to be gay should
have exactly the same opportunities and recognition as any other man or boy in Scouting. We affirm and support
the many good folks within Scouting, and many not in Scouting, who care about youth and social justice, and decry
the national leadership of the BSA who are subverting the traditionally tolerant values of American Boy Scouting.
We invite the judges of California to join with us in this worthy effort.
Kirk Thomas, a consultant to and former board member of Scouting For All (www.scoutingforall.org), holds a master's
degree in theology from Harvard and attained the rank of Eagle Scout and the God and Country and Order of the Arrow
honors in Scouting.