The American Bar Association has proposed a new judicial ethics rule that would force judges to end any current involvement in organizations that exclude homosexuals. It appears that the rule was intended to target the Boy Scouts.

Excerpts from an article that describe the proposed ethics rule:


When the 400,000-member American Bar Association passes judicial ethics rules, state and federal courts generally adopt and abide by those rules. The latest rule proposal would force judges to end any current involvement they have with organizations that exclude homosexuals, just as judges are not allowed to be a part of the Ku Klux Klan, neo-Nazi groups or other racist organizations. An ethics panel is discussing the new rule and it could be approved next year.
. . . . .
The leader of the ABA legal ethics panel is attorney Mark Harrison of Phoenix who explained that the goal of the anti-Boy Scouts proposal is to "make sure that judges aren't viewed as bigots."
. . . . .
The ABA proposal follows on a California Supreme Court decision last year that judges who volunteer with the Scouts must either disclose their involvement with Scouting or exempt themselves from any case that involves homosexual discrimination. Reacting to motions by the San Francisco, San Jose and Los Angeles Bar Associations, the California high court essentially said: "If a judge happens to be a scoutmaster in the local Boy Scout troop, he is a fundamentalist, intolerant, homophobic bigot and should make that known to the community or be ineligible to decide in cases involving alternative lifestyles."

For the full article:
http://www.worldnetdaily.com/news/article....RTICLE_ID=39873

Question for Debate:

(1) Does the proposed rule make sense? I.e. Is it necessary to insure that all litigants in court have the impression that the judge is not biased? (That is the rationale for ethics rules)

I think it's a fine rule. It doesn't specify the Boy Scouts. The source is transparently biased, particularly with this juicy bit:


This is horrible journalism. The high court "essentially" said, and then put some ridiculous statement in quotes? Please.

Several points: Judges in a case deciding homosexual discrimination must EITHER disclose this information, or recuse themselves. How often do you think, really, that a judge in this situation is going to recuse themselves in these cases because they are scoutmasters??? No, they will be more likely to disclose it, and no one will care.

This rule makes sense. Judges deciding in discrimination cases should disclose whether they are a member of a group which practices whatever type of discrimination the case is about, and if necessary, recuse themselves from the case.

It's the BSA's own fault for being one of those groups; not the lawyers or the judges!

It might be useful to add the text of the actual change since the link provided and the setup for this debate is pretty sensational considering the actual text which would be added to the by-laws:



I think the reaction in the editorial link is way over the top, and I don't believe that this was something intentionally targetting the Boy Scouts (as it has been spun) but instead a method of getting the discriminatory clause up to date. Sexual orientation should definitely be on this list, and if the Boy Scouts fall into that category than it's on them to change their practices as to not be a group identified as being discriminatory against people of a specific sexual orientation.

It is also up to the American Bar Association to decide as a group whether to ban homosexual judges or to go the correct way as they have done and ban discrimination against judges. The other side of this is that Judges can no longer be members of anti-gay and gay-hate groups across America, where as they could very well have participated before.

Again, this clause is neccessary to prevent Judge membership of anti-gay groups, and if the Boy Scouts get caught in the middle because of discriminatory practices, I really could care less.

Yes, a very biased source. Especially bad with the direct quote that seems to be a paraphrase instead. However, I think the BSA have been targeted by many special interest groups and unfairly so. For example, the BSA can't rent space in several of California's parks because of their requirement of a belief in God and no homosexual membership:

http://www.sdscoutingforall.org/ns42004.html

Moreover, I think the Cal. ethics rules are different from the proposed ones. The Cal. rules I think, actually require the judge to step down if he/she is affiliated with the Boy Scouts.

Absurd in my opinion.

Smorpheus. I think it was arguably targeting the BSA because of the reference to the Cal. Supreme Court. I will try to dig up that case. There, the judges were actually required (under the ethics rules in place) to step down if they were affiliated with the BSA. I think . . . .

But it wouldn't surprise me because, the BSA have been targeted ALOT BY SPECIAL INTEREST GROUPS in recent years. (See link to ACLU site in my post to Quark).

Well, I think we need throw out all Roman Catholic judges while we are at it. Along with a good share of judges that practice Islam or Judaism and the Protestant branch of Christianity.

Definition of invidious.

3 a : of an unpleasant or objectionable nature : OBNOXIOUS <invidious remarks> b : of a kind to cause harm or resentment <an invidious comparison>

Let us reduce the bench to individuals who have engaged in at least one homosexual act.

Well that was an unusually snarky reply Hugo. Do you believe the other sections of the clause such as groups which discriminate against Race and Religion have merit?

Hayleyanne, obviously I just don't believe that the clause was changed to target the BSA. I do however believe that the BSA has put itself in the crosshairs of changes like this (and renting out space on government grounds, etc) due to intoleranant rules. The BSA has evey right to make any rule they want regarding membership, but then to be outraged when those rules have reprucsions is a great example of the beligerance of the group. I would like to point out that the GSA has none of these problems, due to their more progressive perspective on civil rights and diversity.

Let me point you to the
Girl Scout Promise and Law:
http://www.girlscouts.org/program/gs_centr...law/default.asp
which even has a wonderful clause explaining the use of the word "God."



Let's compare that to the Boy Scout's page, which just about stops short of saying Boy Scouts must believe in a CHRISTAIN god.

http://www.scouting.org/factsheets/02-503.html



And they're infamous official stance on homosexuals:



I believe a group officially stating that homosexuals are "unclean" could qualify them as an anti-gay group. Of course, that's not for me to decide, the test for this change would be the court case in which a judge is actually disbarred for membership to the BSA. In that unlikely scenario, I believe any legal challenge to the ABA's laws would fail since the ABA, like the BSA, is a non-federal organization which can make its own rules about membership. The interesting twist of course, is that the federal government is directly affected by the ABA's policies. I have no idea what kind of an effect that would have on the results of such a case.

Again, I believe this clause change is vital in order to prevent judges from facing no reprucrussions for belonging to Gay-Hate groups.

Well that was an unusually snarky reply Hugo. Do you believe the other sections of the clause such as groups which discriminate against Race and Religion have merit?


Let's compare that to the Boy Scout's page, which just about stops short of saying Boy Scouts must believe in a CHRISTAIN god.http://www.scouting.org/factsheets/02-503.html



No wonder I had such a snarky remark. You yourself put in capital letters the word CHRISTIAN, inferring that a CHRISTIAN organization is unacceptable.

As far as groups that discriminate on race..Do you believe members of African-American Bar Associations should be denied seats on the bench or should at least designate that fact or recuse themselves if race based issues come up?

I was in the Cub Scouts, Webelos, one year as a Boy Scout. Never recall homosexuality coming up. Never burned any crosses on a gay couple's yard.

Well, I've never heard of that group, but as far as I can tell, the National Bar Association of African American Attorneys does not discriminate against non-blacks. As far as I can tell, they do not deny non-blacks admittance. The only reference to members' race I could find said they were an organization of "predominately" black lawyers.

I believe Christian was capitalized to point out that, unlike the GSA, the BSA's spiritual statements are much more focused on Christian aspects, that's all. I think you are inferring too much with that.

Furthermore, you are using some pretty sarcastic hyperbole. Discrimination doesn't only matter when it's burning crosses on gay peoples' lawns, Hugo. But you knew that.

I have to agree with those who have said that this is the BSA's own fault. They are stuck in some idealized version of a past that never existed. The world has moved on.

Again, a rule requiring a judge to either disclose or recuse is pretty open. Whatever our philosophizing on the deeper subjects, in practice, if a judge discloses he is a BSA troop leader, I bet the rest of the court will say, so what? and move on to the case. Of course it will be pertinent if the case involves the BSA... but that should be the case anyway.

I have seen nothing anywhere about judges being forced to step down from the bench merely due to association with the BSA.

Quark-- I just checked and the Cal. supreme court ruling reflects what is in the proposed rule. Some had argued that a judge had to step down if he had any affiliation with the BSA, but the court struck a compromise-- exactly like the proposed rule.

I don't think groups should be going after the BSA the way they are. Here is a link to an article in the Wash Times that gives a good recap of alot of their attacks:

http://washingtontimes.com/functions/print...07-122513-1961r

The Supreme Court held that the BSA membership policy is constitutional. That should be enough.

Does the proposed rule make sense? I.e. Is it necessary to insure that all litigants in court have the impression that the judge is not biased? (That is the rationale for ethics rules)

No, I don't think it is fair. Unless we also have.... no more judges who are members of the.... Democratic or Republican parties, or coaches for female or male only soccer leagues. No religious affiliations (church or mosque membership barred). No memberships to female gyms. No mensa members (few are so exclusively intelligent, and a member might discriminate against the average citizen)...ect, ad nauseum ect.

I think the key word in the rule is invidious. For example, I female only gyms could be considered a form of invidious discrimination. And church affiliation would automatically not be affected by this rule because of a constitutional right to religious freedom.

Of course. I'm sure that men would love to frequent my gym. There are many beautiful women sharing my sauna. It's obviously invidious discrimination!

Hyperbole. But there certainly cases where, due to the nature of the case, a judge recuses herself because of her affiliation with an organization which, while it might be benign (like the BSA), causes a conflict of interest. I can think up imaginary cases where a judge might recuse herself because of affiliation to any of the groups you've listed.

I don't think anyone is saying that judges can't be affiliated with the BSA. Just that being affiliated with them while hearing a case involving discrimination against homosexuals (which the BSA engages in) means the judge has to at LEAST disclose the fact.

I think people are reading too much into this. The conservative media fosters this sort of extrapolation; of course the liberal media does it to, but their voice isn't nearly as loud.

I don't know... this rule is pretty clear. It does not say that judges shall disclose membership to organizations that practice invidious discrimination, nor does it state that judges shall recuse themselves from cases involving similar discrimination, it states that judges shall not hold membership in any organization that practices invidious discrimination.

So, if the BSA is deemed to practice invidious discrimination, a judge shall not hold membership with the BSA. That means that, according to the rules of ethics, no judge shall be a member of the BSA if that organization is considered to practice invidious discrimination, nor shall they use BSA facilities to any significant extent.

Quark stated



We are not talking about mere discrimination we are talking about invidious discrimination. You can be a Boy Scout leader and disagee with their policy concerning gays. I will bet for 99% of the Boy Scout leaders the subject of homosexuality among the youth they lead never comes up. The purpose of the Boy Scouts is not to spread discrimination against gays.

So when does discrimination matter? When the KKK burns crosses? When the BSA prohibits gay leaders and members? When the Roman Catholic Church refuses the sacrament of marriage to gay couples?

From the original article cited.



So if the BSA adopts a "Don't ask, Don't tell" policy will that be acceptable?

If gay litigants need to know if Judges are affiliated with the Boy Scouts -- Don't devout Catholics need to know if judges are affiliated with N.O.W.?

But judges only have to disclose affiliation with the Boy Scouts. Why are they being targeted?

A good link to a column about this issue:

http://www.townhall.com/columnists/debrasa...s20030711.shtml

Excerpts

I disagree that membership in Boy Scouts should disqualify a judge. It is not a hateful organization that wants gays thrown in jail. I was in Boy Scouts for years, and was always taught that part of being morally sound was to respect the rights of others, even if I did not agree with their thinking or decisions. I am saddened that the organization sees fit to ban homosexuals from joining, and do feel it is discriminatory and in stark contrast to many of the things I learned in my troop. But I do not think that it's leadership is hateful.

Membership in the KKK requires hatred of certain ethnic and religious groups. Membership in the BSA does not. Alienating gays is not the mantra of the Boy Scouts, it is a disgusting side note that not all members agree with, and will change over time. I am tolerant and respectul of many, many ways of life that I would not personally take part in, and I learned that tolerance in Boy Scouts. The Postition Statement on the Boy Scouts' website says :



As an aside, since the military doesn't allow gays, would a judge who is affiliated with the military be subject to the same action?

First, it must be pointed out that the WorldNet article is a tissue of hysterical lies - which should come as no surprise to anyone familiar with this, um... organ. It states, for example, "the proposal would actually prohibit judges from any kind of association whatsoever with organizations that oppose homosexuality." And goes on:
In actual fact, Hans Zeiger, the "author" of this diatribe, is lying - and he knows it. Hardly model behavior for an Eagle Scout.

The reality is that the first point of commentary on the proposed change in the code reads as follows:
In case any of you have no better reading comprehension skills than Mr. Zeiger, that means that judges would never "be put in a position of having to choose between the bench and the Bible" and would never "be disqualified from his judgeship under the proposed rule" because he (or she) "serves part time in the military Reserves or National Guard". Hans Zeiger is not just spinning here, he is bearing false witness of the worst kind on a grand scale. He should be thrown out of the Scouts for multiple violations of their Oath on the basis of this article alone. Indeed, aside from quoting part of the proposed rule change, there's hardly a word in the piece which has a grain of truth. Then again, this is WorldNet we're talking about, which tends to make Fox News look like The Nation.

Further, this is not a new rule by any means. The proposed change would do nothing more than add the words "ethnicity" and "sexual orientation" to the already existing code, which currently reads:
So it's a bit too late for all of the hysterics regarding Roman Catholic judges or judges who are members of the Association of African American Attorneys or who are coaches for women-only soccer teams. The rules affecting them are already in place - and have been for three decades. And, of course, we've all seen the terrible ramifications of those judicial ethics rules, haven't we? Well, haven't we? I mean our benches have been decimated, right? The only judges we have left are asexual hermaphrodites of indeterminate race who have never belonged to anything - right?

Oh. No?

Gee, there must be more to this story, then. I mean, all the ABA is doing is adding "ethnicity" and "sexual orientation" to their anti-discrimination rules - just as many businesses and government agencies have been doing for years now. Hmmn, maybe all this brouhaha has nothing to do with the Boy Scouts. Maybe - especially considering the source of all the noise - this has more to do with nipping in the bud any anti-discrimination rules which might affect gays. Maybe this is yet another instance of the religious right getting their knickers in a twist because gay men and lesbians might actually get a bit of equal protection under the law for a change. And, God knows, we can't have equality or tolerance or a lack of prejudice - it's downright anti-Christian!

The whole Boy Scout argument is a straw man moving the goalposts behind a smokescreen on a slippery slope. In short, it's asinine. This is nothing more - and nothing less - than the ongoing campaign to make sure homosexuals remain second-class citizens (at best) forever.

It remains ironic, of course, that the poor beleaguered Boy Scouts have had all the attention thrust upon them again (and - again - by the religious right, not by a bunch of radical queers). As I have pointed out elsewhere, Robert Baden-Powell, the founder of the Boy Scouts, was himself a homosexual - and in all probability a pedophile. Homophobia makes for strange bedfellows indeed.

The Boys Scouts of America only bars homosexuals from troop leadership positions. Preventing homosexuals from being Scout Masters is as discriminatory as preventing women from being Scout Masters. Would you feel comfortable having a man lead a group of teenage girls on camping trips? If not, then you understand the rule.

(1) Does the proposed rule make sense? I.e. Is it necessary to insure that all litigants in court have the impression that the judge is not biased? (That is the rationale for ethics rules)

Does being affiliated with BSA make one full of hatred towards homosexuals? If you accept the above argument the answer is a resounding no.

Wertz wrote:




Wertz, you need to take a step back and think about the purpose for the judicial ethics rules. They are in place to insure that judges are/appear to be impartial in front of the litigants in their court rooms. Let me ask you this question: Can a judge who is a scoutmaster in the Boy Scouts preside over a case involving a litigant who is homosexual? Please answer this question as I am curious to hear your answer. If you believe a judge affiliated with the Boy Scouts can't be impartial in such a case, please explain why.

Even if you believe that a judge affiliated with the boy scouts can be impartial-- Is the Commentary that helps to interpret the proposed rule enough to make it clear that a judge's affiliation with the Boy Scouts has no bearing on his ability to preside over such a case?

(1) Clearly, the commentary explains that a judge can't be taken off the bench for such affiliation:



The Supreme Court said in 2000 that the Boy Scout's prohibition on homosexual membership was constitutional-- so according to the commentary, a judge's membership in the Boy Scouts can't be prohibited.

Ok -- So the proposed rule can't keep a judge off the bench for being a scoutmaster-- but some jurisdictions are still enacting rules that cast suspicion on judges who would dare to be affiliated with the scouts. California requires a judge to disclose his membership with the implication being that somehow the litigant has a right to know and object to the affiliation. That somehow this affiliation calls into question the judge's ability to preside fairly in a case involving homosexuals. BALONEY.

Moreover, gay rights advocates may be satisfied with this result because if they can't stop all affiliation with those homophobic scouts at least they can discourage it:



Yes Wertz, there is more to the story. But it has nothing to do with gay men and lesbians getting equal protection under the law and has everything to do with gay rights groups having a vendetta against the Boy Scouts. This Washington Times link has a good break down of all the nonsense the Boy Scouts have had to put up with in the courts because of their refusal to modify their membership requirements to the satisfaction of the gay rights crowd.

http://washingtontimes.com/functions/print...07-122513-1961r

The Supreme Court held that the BSA membership policy is constitutional. That should be enough.

Again, to refocus what the real issue is-- I ask whether you believe that a judge who is affiliated with the Boy Scouts can be impartial when presiding over a case where a litigant is homosexual? If not, why not?

Of course a judge who is affiliated with the Boy Scouts can be impartial. I was a member of the Boy Scouts, for God's sake (and had some great sex at Boy Scout camp over a couple of summers in my early teens). The whole Boy Scout issue in relation to the ABA conduct rules is a load of cobblers. Were this rule ever gratuitously used against a judge in relation to membership in or leadership of the Scouts, the decision would be overturned immediately by the next higher court - as it should be.

The only time I could see such a conflict of interest arising would be if a judge were sitting on a case which specifically involved the BSA in a discrimination case and that judge also happened to be a Scout Master. In that case, the judge should recuse himself with or without this ruling. Implying that the proposed change would somehow specifically target the Scouts is idiotic - as is the implication that the Scouts would be free of conflict of interest recusement without the change.

As you point out yourself, the Supreme Court has already determined that the Boy Scout's prohibition on homosexual membership is constitutional and, therefore, a judge's membership in the Boy Scouts can't be prohibited on the basis of the proposed rule change. You know that. I know that. Hans Zeiger knows that. So what's all the fuss about? I'll tell you: the fuss is a straw man - a straw man specifically designed to discredit anti-discrimination rules.

Let us bear in mind that it is not gay rights groups with a vendetta who are raising the bugbear of Boy Scout banishment from the bench, it is prejudiced propagandists published at WorldNet and homophobic hysterics like their Eagle Scout columnist. I would be willing to bet anything that the proposed rule is never - ever - once used to question a judge who is affiliated with the Boy Scouts of America. Indeed, had Hans Zeiger not raised the issue in a WorldNet column, I'd wager that no one would have conceived of this rule applying to affiliation with the Scouts. It is a reductio ad absurdum tactic to combat the inclusion of "sexual orientation" in the ABA's rules. Period.

As I've mentioned, hundreds of corporations, as well as local, state, and federal agencies have already added "sexual orientation" to those protected from discriminatory practices and I do not know of a single instance of this being somehow used in relation to the Boy Scouts.

This is nothing more than an attempt to unwrite discrimination rulings. Dragging the poor Boy Scouts into it is a right wing tactic being used to smear anti-discriminatory practices. We are not seeing anyone trying to unseat judges here. We are seeing people trying to unseat anti-discrimination rules. That is the issue here. And it is the only issue.

3.03 Affiliation with Discriminatory Organizations. A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or, national origin, ethnicity, or sexual orientation, and shall not use the facilities of such an organization to any significant extent.

vs

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Seems pretty clear cut to me. The proposed rule, if adopted, is unconstitutional. The Roman Catholic Church practices "invidious driscrimination" against women, men, and homosexuals, at least as far as the women who want to be priests, the men who want to be nuns, and the open homosexuals who want to be either, are concerned. A judge cannot be a member of the RC Church under the rule. Neither can any practicing member of Islam. The theology and practice of dhimmi is explicitly discriminatory, plus all the other elements of Islam that make the Roman Catholics look as "progressive" as the Village People. That's just two. My guess is that the local "Triangle Club" would refuse membership to avowed, practicing and committed evangelicals who made it clear that they were a) straight, and implacably opposed to homosexuality for religious reasons. Orthodox Jews would be barred from the bench, as would members of NOW, members of the KKK, members of the NAACP (take a look at the "diversity" of their board, not a honky amongst them last time I looked), etc, etc.

To reiterate:
no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

To re-reiterate:
Rule 3.03 does not prohibit a judge's membership in any United States military organization, an organization dedicated to the preservation of religious, ethnic or legitimate cultural values of common interest to its members, or one that is in fact and effect an intimate, a purely private organization whose membership limitations could not be constitutionally prohibited.


To re-re-reiterate:
STRAW MAN


p.s. It can sometimes contribute to more constructive debate if one actually reads a thread before contributing to it.

The prohibited "religious test" of Article 6 Section 3 refers to any attempt to require that a government official must pledge faith in the existence of or allegiance to a God. Legally, there would be no conflict between Article 6 Section 3 and a proposed rule requiring that Judge's do not hold membership in an organization that practices invidious discrimination.

Wertz wrote:



Unfortunately, Wertz, I am afraid you are wrong. The ABA proposed its ethics rule after what transpired in California. Here is a good description of what happened in California regarding the Boy Scouts and the California Judicial Ethics rules. The writer bemoans the fact that the Ca Supreme Court did not go far enough in prohibiting judges' memberships in the Boy Scouts:

Edited to remove copyrighted material. Please take the time to read the Rules regarding the use of copyrighted material.

http://www.mercurynews.com/mld/mercurynews/news/6144787.htm

In California, the judicial ethics rules were revised in 1995 to provide that judges could not be affiliated with groups that discriminated on the basis of sexual orientation. However, there was an exception specifically written in to the revised rules to exempt youth groups. It is widely recognized that this exception was meant to exclude the Boy Scouts. But gay rights groups could not stand for that and petitioned to have that exception removed. Ultimately, the Ca Supreme Court struck a compromise and mandated judicial disclosure of affiliation and not a prohibition on membership.

I don't think it was the right wingers who were petitioning the courts to have the Boy Scout exception removed. No, this whole targeting of the Boy Scouts does not come from the ultra right-- It comes from the Left. And it is just one of a series of actions taken by gay rights groups to target the Boy Scouts because they don't like their membership requirements.

I'm sorry - I thought we were discussing the proposed change in the American Bar Association's rules of conduct, not a California Supreme Court ruling form 1995. My apologies for apparently having intruded on the wrong thread.

Had we been discussing the ABA, I would have pointed out that, while, in the overall march of time, the ABA proposed its ethics rule at a later date than "what transpired in California", the two are clearly not related - at least not in the manner you and others would like to imply. Had they been, there would not be a specific comment in the ABA propoasal relating to this issue which clearly, unequivocally exempts the Scouts and any other organization which is not prohibited by the Constitution. This could not be more manifest without them actually saying "Oh, by the way, THIS RULE DOES NOT APPLY TO THE BOY SCOUTS OF AMERICA." Even if they had, I have little doubt that there would still be some who would be writing hysterical columns for Worldnet - and starting threads entitled "Judges can't be affiliated with the Boy Scouts".

If the bruhaha surrounding the American Bar Association's rules has not been stirred up solely and exclusively by the right, please cite a left-wing source which is celebrating the fact that this proposed rule change will exclude judges who are affiliated with the Scouts from serving on he bench. One source will do.

Wertz, the time line of the ABA Proposed Rule follows "what transpired in California". It is not intellectually honest of you to ignore "what transpired in California". True, the commentary makes clear that the rule is not intended to be interpreted to prohibit membership in the BSA-- but that is not really the issue is it? As one of those right wing hysterical columns points out-- it is really about "guilt by association". The quotes (in the prior links) from the Lambda attorney and the one of the California attorneys that pushed for the BSA exception to be taken out-- make clear that the Left or the gay rights advocates, whatever you want to call them -- are quite happy with the result. They know that constitutionally they can't get the prohibition on membership in the BSA-- but they can cast the BSA in a bad light and put pressure on judges to rethink (voluntarily ) their membership in the BSA.

If your goal is to look at this issue in an honest fashion, you cannot ignore the events leading up to the ABA proposing its revisions -- "what transpired in California". Moreover, the attacks on the BSA are pretty clearly from the left. Again, look at the link to the Wash. Times article detailing the different litigation against the BSA. That litigation is not being instituted from the Right.

This thread opened with the following paragraph:
In light of the FACT that the new judicial ethics rule do not force judges to end any current involvement in organizations that exclude homosexuals and the FACT that the rule includes commentary which specifically protects the Boy Scouts, you might want to exercise a bit more caution in bandying about terms like "intellectual honesty".

Wertz wrote:



Fair enough. The ABA proposed rule can't force judges to end current involvement with the BSA. Will you come clean now and acknowledge that the Left is after the BSA and gets what they want in any case through the ABA proposed rule -- through guilt by assocation?

I will submit that the BSA is being "targeted" for homophobia like the KKK is "targeted" for racism, sure.

But I fail to see how the "guilt by association" thing is supposed to work. I cannot imagine a conservative judge "rethinking" their position on or membership of anything on the basis of perceived pressure from left-wing organizations or gay rights groups. Can you? By the same token, I can't imagine a liberal judge needing such a nudge to recuse themselves from a conflict of interest case or by voluntarily (indeed) dissociating themselves from homophobic organizations.

So, no - I see the "guilt by association" argument as specious.

It's not a straw man. Who defines legitimate? What if one member of the organization doesn't share some of the values? What is an organization is not dedicated to preserving values, but rather advancing them? You're probably thinking "so what, that doesn't change what Rule 3.03 says."

Well, what you're forgetting is that you're dealing with lawyers here, not normal people. A normal person, reading the above rule, would conclude that membership in the KKK is perfectly permissible, because it was dedicated to the "preservation of ethnic values (white superiority) of common interest to its members." A case could be made that membership in the Nazi Party is permissible as well, except that may founder upon the "legitimate" condition. Note what I said above about who defines "legitimate." I'm pretty sure that we can all agree the intent of the measure is to forbid judges from belonging to unsavory organizations such as those. Which means one of three things: the measure is either totally worthless because it can't prohibit anything, it will result in the obliteration of the freedom OF religion, freedom of assembly and prohibition on religious tests, or it is a stalking horse that will be used simply as a means of attacking judges that hold politically incorrect views.

If a white supremacist's ethnically motivated membership in the KKK can, and will be forbidden under the above rule, you can be darn sure that the folks ignoring the ethnic exception in the case of a disfavored organization will ignore the religious exception as well.

Of course, the "common interests" exception can also be lawyered into dust. Since the Boy Scouts are the focus of this thread, we'll use them as an example. If a Boy Scout decides that he's "gay", how much in common are his interests with the Scouts? Ahh, but you see, he's still a member, so the organization now no longer has "common interest." poof, ethnic, religious and cultural exception are history.

Finally, let's say that a wealthy visionary establishes a Christian Space Colonization Foundation that attracts the attention of one of our judges. The judge joins, considering the cause of colonization to be a worthy one. The SCF has a "opposition to homosexual colonization" policy based upon their understanding of the Bible. Be fruitful and multiply. Is the judge covered by the religious exception? Nope, nor by the cultural exception. Why? Because a clever lawyer will simply argue that the SCF isn't attempting to preserve values, it is attempting to spread them, and advance them.

Semantic games? Yes, but that's a specialty of the Left.

The Left has already made it crystal clear that they do not consider any expressions of disapproval of homosexuality to be "legitimate" values, regardless of how a person comes by the disapproval. As has been made abundantly clear on this board, repeatedly, the Left considers anybody who disapproves of homosexuality to be intolerant, bigoted, hate-filled, and homophobic.

Bikerdad raises an interesting point. The commentary to the Rule 3.03 provides:





According to the commentary a judge can't be prohibited from belonging to a purely private organization whose membership limitations could not be constitutionally prohibited. What exactly does that mean? What types of socially "unacceptable" (whatever that means) organizations are still constitutionally protected in their membership limitations? Is this a rule that has no teeth?

Religious organizations (churches, for example) are a prime example or a group whose membership limitations can't, constitutionally, be prohibited.


Socially unacceptable is a relative term. I would find discrimination against homosexuals to be socially unacceptable, so that would mean that the Catholic Church, along with many others have "socially unacceptable" practices when it comes to membership and are still protected by the constitution.

The Boy Scouts of America, according to a 2000 ruling in the US Supreme Court, has a constitutional right to limit its membership to exclude homosexuals (as much as I find this to be "socially unacceptable", it is, however, currently the law), so it would appear that those judges affiliated with the BSA would not be affected by Rule 3.03.

a reasonable argument Ent!

Think all of us who aren't enamored of bigotry and misology (hatred of reasoning) ought to start "framing our disagreement" as...

We don't find it socially acceptable......

*g* thanks