Rebirth of Reason


Stacking the Deck -- And the Courts
by Arthur Silber

As reported in the San Francisco Chronicle, on July 26, 2002: "San Francisco's judges have become the first in the state to cut ties with the Boy Scouts because of the organization's refusal to admit gays and lesbians." Angela Bradstreet, a lesbian who is also president of the Bar Association of San Francisco, hopes to impose the change throughout all of California. Instructing us as to the proper view of the issues involved, Bradstreet tells us: "This is a fundamental part of being a judicial officer ... avoiding even the appearance of partiality at all times so that every litigant who appears in front of you is treated fairly and equally."

The foundation for this latest development was put in place some time ago: in 1995, the California Supreme Court adopted statewide ethical standards for judges forbidding membership in organizations that discriminate against lesbians and gays. But, at that time, they exempted "nonprofit youth organizations," an exception specifically tailored for the Boy Scouts. Grant the principle, of course, and the details are only a matter of time -- in this case, a mere seven years. On July 11 of this year, San Francisco Superior Court judges and commissioners adopted a policy saying they would not take part in any organization that "discriminates on the basis of sexual orientation by excluding members on the grounds that their sexual orientation renders them 'unclean,' 'immoral' or 'unfit.'" As the Chronicle story notes: "In practice, the policy prohibits the judges from taking part in the Boy Scouts."

The insidiousness of this attack on the essence of an independent judiciary should not pass unnoticed. To begin with: what happened to the judges' own rights of freedom of speech and freedom of association? Moreover, this kind of policy rests on a vicious collectivist notion, which assumes that anyone belonging to any organization necessarily subscribes to all of that organization's beliefs. But this clearly is not true. And what if a judge belonged to the Boy Scouts, but was attempting to change its policy regarding gays and lesbians? According to this view, such a person could not exist. Moreover, it appears that no one has even attempted to apply this policy consistently: what about judges' memberships in the ACLU, or NOW, or, for that matter, the NRA? No, the policy applies, for the moment, only to this particular organization, because there is sufficient sympathy for the "politically correct," condemnatory view of the Boy Scouts.

One might think, however, that the San Francisco judges and commissioners at least would have taken note of the courts' own view of this matter. The United States Supreme Court, in a decision announced in June 2000, upheld the Boy Scouts' policy. The organization argued that its code, requiring Scouts to be "morally straight" and "clean," excluded homosexuals, and the Supreme Court majority held that the Boy Scouts were entitled to define their own principles. And then, in two 1998 cases, the California Supreme Court upheld the Boy Scouts' refusal to admit gays and atheists. But, under the policy which its advocates wish to apply state-wide, judges may not belong to organizations which even the highest court in the land has said are legally entitled to adhere to their openly stated principles. (Of course, in a fully free society, this would not even be a question. All private organizations would have the right to require whatever code of conduct they wished of their members, so long as that code did not violate anyone else's rights, and no matter how objectively mistaken or objectionable that code might be.)

As for Ms. Bradstreet's statement that the policy properly implements the principle that a judge should avoid "even the appearance of partiality at all times so that every litigant ... is treated fairly and equally": it is, simply, a lie and an equivocation. The truth is that policies like this seek to force judges into the politically correct mindset of the moment: certain specified prejudices are forbidden, but other "preferences" and views are encouraged, if not demanded. And what if the Boy Scouts themselves are a party to a lawsuit in San Francisco? Can they be assured that they will be treated "fairly and equally" -- especially if part of their case rests on defending their policy of excluding gays and lesbians?

This policy regarding judges is but another result of the abandonment of objectivity in law generally, and of the law's improper intrusion into matters of individual rights, including the right of association. To be truly free includes the right to be irrational, and to hold irrational, mistaken beliefs. But that view is not for the liberal establishment, which has long since set the intellectual direction of the judiciary. That establishment, of course, knows what's best for us, and it will use the law to make certain that we, including those of us who might be judges, conform to their view of correct and permissible behavior.

In a proper system, where judges are empowered only to interpret and apply objective laws, the quality of a judge's performance would be readily ascertainable. And what a judge does in his private life, such as the organizations he belongs to, the publications he subscribes to, and the like, would be absolutely no one's business. Under an objective system of law, it would not be difficult to determine when a judge's personal beliefs were improperly influencing his actions on the bench. But today, when laws are a mishmash of contradictions and incomprehensible, ambiguous provisions, evaluating a judge is notoriously difficult, and requires lengthy study. So the politically correct establishment resorts to what it regards as a shorthand guarantee of integrity: a list of approved, and disapproved, organizations. And who knows what additional organizations -- and what newspapers and magazines, or ultimately, even people, for that matter -- might appear on future lists of the permissible and the forbidden?

At the moment, there are reports that one judge -- that's right, one judge -- is challenging the constitutionality of this policy. If his case is being tried in San Francisco, he probably doesn't have a prayer.

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