2014-01 (February 27, 2014)
Membership; Extrajudicial Activities; Appearance of Impropriety
Rules 1.2, 3.1 & 3.6
 
Issue:  May a Judicial Official serve as an adult volunteer with the Boy Scouts of America in the following positions: (1) assistant scoutmaster, (2) summer camp volunteer, (3) board member of a particular region, and (4) Catholic committee on scouting membership?
 
Additional Facts
 
Prior to May 2013, it was the policy of the Boy Scouts of America (“BSA”) to exclude gay youths and adult leaders from membership in its organization. On May 23, 2013, voting members of the BSA approved a resolution (effective 1/1/14) providing that youth may not be denied membership on the basis of sexual orientation alone.[1] The resolution maintained the existing membership policy for all adult leaders of the BSA, which provides:

The applicant must possess the moral, educational, and emotional qualities that the Boy Scouts of America deems necessary to afford positive leadership to youth. The applicant must also be the correct age, subscribe to the precepts of the Declaration of Religious Principle (duty to God), and abide by the Scout Oath and the Scout Law.

While the BSA does not proactively inquire about the sexual orientation of employees, volunteers, or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA.

According to the Judicial Official, gay adults are prohibited from serving in any of the above-listed volunteer positions.
 
Applicable Rules of Judicial Conduct
 
Rule 1.2 of Connecticut’s Code of Judicial Conduct states that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
 
Rule 3.1(3) states that judges must ensure that their extrajudicial activities do not “appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.” The rule’s commentary encourages judges to engage in appropriate extrajudicial activities, to the extent that “judicial independence and impartiality are not compromised.”  The commentary provides further than judges are encouraged to engage in “educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law.” Rule 3.1, cmt.(1).
 
Rule 3.6(a) specifically prohibits a judge’s membership “in any organization that practices unlawful discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, physical or mental disability, or sexual orientation.”
 
Discussion
 
In reaching its conclusion, the Committee considered first whether the BSA engages in unlawful discrimination and, second, whether the Judicial Official’s contemplated participation as a BSA adult volunteer creates the appearance of impropriety or would appear to undermine the Judicial Official’s impartiality.  For the reasons described below, the Committee unanimously concluded that the Judicial Officer should not accept any of the four volunteer positions proposed.
 
 (1)  BSA Policy and Unlawful Discrimination
 
Rule 3.6(a) specifically prohibits a judge’s membership “in any organization that practices unlawful discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, physical or mental disability, or sexual orientation.”  In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the United States Supreme Court held that applying New Jersey’s public accommodations statute to require the BSA to admit a gay adult leader violated the BSA’s First Amendment right of expressive association. Thus, under Dale, it appears that the BSA’s policy of barring gay adult leaders cannot be prohibited by state anti-discrimination laws.  The Committee determined, therefore, that the Judicial Official’s proposed volunteer work with the BSA does not appear to be specifically prohibited under Rule 3.6, which reaches only organizations engaged in “unlawful discrimination.”  
 
(2)  Appearance of Impropriety and Impartiality

The Committee next examined Rules 1.2 and 3.1(3) of the Code of Judicial Conduct. Rule 1.2 of the Code states that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”  The test for appearance of impropriety is “whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” Rule 3.1(3) states that judges must ensure that their extrajudicial activities do not “appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.”
 
In determining whether participation as a BSA volunteer creates an appearance of impropriety or would appear to undermine the Judicial Official’s impartiality, the Committee considered Connecticut’s public policy against discrimination on the basis of sexual orientation.
 
Connecticut's Gay Rights Law was enacted in 1991 “to protect people from pervasive and invidious discrimination on the basis of sexual orientation.”  Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 481-82 (1996); see id. at 482 n.24 (“General Statutes §§ 46a–81a through 46a–81n of the Gay Rights Law provide that it is the public policy of this state that individuals are not to be discriminated against because of their sexual orientation—that is, the law prohibits discrimination against a person based on his or her ‘preference for heterosexuality, homosexuality or bisexuality, history of such preference or being identified with such preference’”) (quoting Conn. Gen. Stat. § 46a–81a).
 
Connecticut’s public policy against discrimination based on sexual orientation extends to a broad range of activities including membership in associations of licensed professionals (Conn. Gen. Stat. § 46a-81b), employment (§ 46a-81c), public accommodations (§ 46a-81d), housing (§ 46a-81e), credit practices (§ 46a-81f); employment in state agencies (§§ 46a–81h and 46a–81j), services of state agencies (§ 46a-81i), the granting of state licenses (§ 46a–81k), educational and vocational programs of state agencies (§ 46a–81m), and allocation of state benefits (§ 46a–81n).  Furthermore, Connecticut permits same-sex couples to adopt children, Conn. Gen. Stat. § 45a–724, requires state contractors to warrant that they will not discriminate based on sexual orientation in performing the contract, Conn. Gen. Stat. § 4a-60a, and recognizes crimes of intimidation based on bigotry or bias for conduct directed at another on account of that person's actual or perceived sexual orientation, Conn. Gen. Stat. §§ 53a–181j, 53a–181k and 53a–181l.  In addition, the Judicial Branch is specifically required under Conn. Gen. Stat. § 46a-70a to comply with Conn. Gen. Stat. § 46a–81j, which prohibits discrimination in state employment on the basis of sexual orientation, and Conn. Gen. Stat. § 46a–81i, which provides that the services of every state agency shall be performed without discrimination based upon sexual orientation.
 
The issue of state agency involvement with the BSA arose in Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir. 2003).  In Wyman, which followed the U.S. Supreme Court’s decision in Dale, the U.S. Court of Appeals for the Second Circuit held that the Connecticut State Employee Campaign Committee (“Committee”) acted lawfully in denying the application of a local Boy Scouts group from participating in a state-sponsored charitable giving campaign.  The Committee’s actions followed a decision by the Connecticut Commission on Human Rights and Opportunities that if the Committee were to accept the BSA’s involvement in the charitable giving campaign, the state would be in violation of provisions of Connecticut law prohibiting state involvement with discriminatory practices based on sexual orientation.  See id. at 86 (citing Conn. Gen. Stat. §§ 46a-81d, 46a-81l & 46a-81n).  The Second Circuit concluded that BSA’s exclusion from the charitable giving campaign was consistent with the First Amendment and state statutes and “a reasonable means of furthering Connecticut's legitimate interest in preventing conduct that discriminates on the basis of sexual orientation.” Id. at 97-98.
 
More recently, in Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008), the Connecticut Supreme Court held that Connecticut’s state statutory prohibition against same-sex marriage violated the state constitution.  In reaching this decision, the Court concluded that sexual orientation is a quasi-suspect classification under the state constitution’s equal protection clause.  The Court noted that “[g]ay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society” and “[t]he characteristic that defines the members of this group—attraction to persons of the same sex—bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens.”  Id. at 175.  The Court reasoned that “as a minority group that continues to suffer the enduring effects of centuries of legally sanctioned discrimination, laws singling [gay persons] out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping.”  Id.  The Court rejected the view that history and tradition were sufficient justifications for the discrimination, noting: “‘if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions.’” Id. at 261-62 (quoting In re Marriage Cases, 43 Cal.4th 757, 853-54 (2008)).
 
Thus, gay persons have a protected status under our state constitution and statutes. Given that Judicial Officials are charged with enforcing Connecticut’s laws prohibiting discrimination based on sexual orientation, the Committee concluded that it would appear to undermine a Judicial Official’s impartiality if the Official were to accept a position with an organization that the organization would, by policy, deny to another candidate on the basis of sexual orientation.  In recognizing that sexual orientation is a quasi-suspect classification under the state constitution, the Connecticut Supreme Court observed that “gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society.”  Kerrigan, 289 Conn. at 172.  In light of this history of invidious discrimination and the now protected status of gay persons under the state’s constitution and statutes, it would raise concerns about a Judicial Officer’s impartiality for the Official to enjoy a position that would be denied to a gay person by policy of the organization.  The four adult volunteer leadership positions with the BSA that the Judicial Official is considering holding are positions that gay persons are barred from holding by written policy of the organization and thus the Judicial Official should not accept these positions. 
 
The Committee considered opinions from other jurisdictions that have addressed the issue of whether a judge can be affiliated with the BSA.  In California, Canon 2C of the Code of Judicial Ethics prohibits a judge from holding membership in an organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation, but contains exceptions for religious, military, and nonprofit youth organizations.  California’s Supreme Court Advisory Committee on the Code of Judicial Ethics has proposed eliminating the military and youth-group exceptions and is currently receiving comments on these proposals. See Supreme Court Advisory Committee on the Code of Judicial Ethics, Proposed Amendments to Canon 2C of the Code of Judicial Ethics (Feb. 5, 2014), http://www.courts.ca.gov/documents/SP14-02.pdf (stating that “[b]ecause the BSA continues to discriminate on the basis of sexual orientation, the committee agreed that eliminating the exception, thereby prohibiting judges from being members of or playing a leadership role in the BSA, would enhance public confidence in the impartiality of the judiciary”). 
 
Some jurisdictions have concluded that whether a judge may participate in the BSA may depend upon the nature of the specific position that the judge proposes to accept within the organization.  For example, the State of Washington’s Ethics Advisory Committee concluded that a judge may not serve in a leadership position of the local BSA council because, given the BSA’s policy of excluding members based on sexual orientation, the judge’s participation “may reflect adversely on the judge’s impartiality” and “may diminish the public confidence in the integrity and impartiality of the judiciary.”  However, the Washington Committee determined that this leadership position was distinguishable from participation by the judge “as a troop leader or other position that is not actively involved in planning and implementing the national organization’s policy of excluding members based on their sexual orientation.”  The Washington Committee noted that a judge holding a role such as troop leader should nevertheless disqualify himself when doing so is appropriate and should also disclose his participation if he has reason to believe the parties or their lawyers may consider it relevant to the judicial officer’s presiding over a particular case.  See Washington Advisory Opinion 04-1; see also Delaware Opinion 2006-4 (concluding that a judge need not resign his BSA positions as member of Troop committee and local Council but, should a situation arise when the judge is called upon to be involved directly or indirectly in enforcing policy excluding gay persons, the judge should consider resigning or, at the very least, recusing himself “from any discussion or involvement regarding the BSA policy”); cf. Texas Advisory Opinion 158 (1993) (concluding that a judge may serve as district chairman or district commissioner of a local BSA organization but noting that the judge should consider Canon 2A before deciding how extensively to become involved with any organization).
 
Other jurisdictions have permitted a judge’s involvement with the BSA without noting any particular limitations.  See Arizona Advisory Opinion 00-05 (concluding that a judge may participate in BSA volunteer work because the BSA does not practice “invidious discrimination” and Canon 2C of the Arizona Code relates to membership in organizations that invidiously discriminate on the basis only of race, sex, religion, or national origin); New York Advisory Opinion 05-13 (concluding that part-time town court judge may serve as a Boy Scout scoutmaster but not discussing the BSA’s policy of discriminating on the basis of sexual orientation); Massachusetts CJE Opinion No. 2001-01 (noting that Canon 2(C) of the Massachusetts Code prescribes membership in organizations practicing “invidious discrimination” the basis of only of race, sex, religious, or national origin and concluding that judge need not resign position as co-den parent; stating that “[t]he foregoing is not to stay that there are no conceivable circumstances under which you might be required to terminate your membership in the Boy Scouts”).
 
This Committee has considered these opinions from other jurisdictions and concluded that a Judicial Official should not accept a position with the BSA that would be denied to a gay candidate—regardless of the specific responsibilities of the position.  As noted, the Committee’s conclusion stems from Connecticut’s public policy against discrimination on the basis of sexual orientation as expressed through our state statutes as well as the protected status of gay persons under our state constitution.  The Committee determined that it is not sufficient to simply prohibit a Judicial Official from being involved in enforcing the BSA’s discriminatory policy.  Rather, for the Judicial Official to accept a position that would be denied to a gay person triggers concerns about impartiality regardless of the nature of the position.  In other words, for a Judicial Official to benefit from a policy that discriminates against persons of a protected class under Connecticut law is inconsistent with the Code’s principles.
 
Conclusion

In sum, given that the four leadership positions being considered by the Judicial Official are positions that would be denied to gay candidates by policy of the BSA, the Committee unanimously concluded that the Judicial Official should not participate as a BSA adult volunteer in any of the designated positions because participation may appear to a reasonable person to undermine the Judicial Official’s independence, integrity or impartiality in violation of Rule 3.1(3).[2]

Appendix A

Boy Scouts of America
Membership Standards Resolution

WHEREAS, it is the mission of the Boy Scouts of America to prepare young people to make ethical and moral choices over their lifetimes by instilling in them the values of the Scout Oath and Scout Law:

Scout Oath On my honor I will do my best To do my duty to God and my country And to obey the Scout Law; To help other people at all times; To keep myself physically strong, Mentally awake, and morally straight.

Scout Law A Scout is: Trustworthy Loyal Helpful Friendly Courteous Kind

Obedient Cheerful Thrifty Brave Clean Reverent

AND WHEREAS, duty to God, duty to country, duty to others, and duty to oneself are each a core value and immutable tenet of the Boy Scouts of America; and

WHEREAS, the Scout Oath begins with duty to God and the Scout Law ends with a Scout's obligation to be reverent, and that will always remain a core value of the Boy Scouts of America, and the values set forth in the Scout Oath and Law are fundamental to the BSA and central to teaching young people to make better choices over their lifetimes; and

WHEREAS, the vision of the Boy Scouts of America is to prepare every eligible youth in America to become a responsible, participating citizen and leader who is guided by the Scout Oath and Scout Law; and

WHEREAS, for more than 103 years, programs of the Boy Scouts of America have been delivered to youth members through cooperation with chartered organizations that select adult leaders who meet the organization's standards as well as the leadership standards of the Boy Scouts of America; and

WHEREAS, numerous independent experts have recognized that the programs protecting Scouts today, which include effective screening, education and training, and clear policies to protect youth and provide for their privacy, are among the best in the youth-serving community; and

WHEREAS, the current adult leadership standard of the Boy Scouts of America states:

The applicant must possess the moral, educational, and emotional qualities that the Boy Scouts of America deems necessary to afford positive leadership to youth. The applicant must also be the correct age, subscribe to the precepts of the Declaration of Religious Principle (duty to God), and abide by the Scout Oath and the Scout Law.

While the BSA does not proactively inquire about sexual orientation of employees, volunteers, or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA.

AND WHEREAS, Scouting is a youth program, and any sexual conduct, whether homosexual or heterosexual, by youth of Scouting age is contrary to the virtues of Scouting; and

WHEREAS, the Boy Scouts of America does not have an agenda on the matter of sexual orientation, and resolving this complex issue is not the role of the organization, nor may any member use Scouting to promote or advance any social or political position or agenda; and

WHEREAS, youth are still developing, learning about themselves and who they are, developing their sense of right and wrong, and understanding their duty to God to live a moral life; and

WHEREAS, America needs Scouting, and the organization's policies must be based on what is in the best interest of its young people, and the organization will work to stay focused on that which unites us, and

WHEREAS, the Boy Scouts of America will maintain the current membership policy for all adult leaders of the Boy Scouts of America, and

NOW, THEREFORE, BE IT RESOLVED THAT:

The following membership standard for youth members of the Boy Scouts of America is hereby adopted and approved, effective Jan. 1, 2014:

Youth membership in the Boy Scouts of America is open to all youth who meet the specific membership requirements to join the Cub Scout, Boy Scout, Varsity Scout, Sea Scout, and Venturing programs. Membership in any program of the Boy Scouts of America requires the youth member to (a) subscribe to and abide by the values expressed in the Scout Oath and Scout Law, (b) subscribe to and abide by the precepts of the Declaration of Religious Principle (duty to God), and (c) demonstrate behavior that exemplifies the highest level of good conduct and respect for others and is consistent at all times with the values expressed in the Scout Oath and Scout Law. No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone. 

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[1] The text of the BSA’s full Membership Standards Resolution, adopted on May 23, 2013, is included in the Appendix to this opinion and is available at http://www.scouting.org/MembershipStandards/Resolution/Resolution.aspx. See also Boy Scouts of America Statement (May 23, 2013), http://www.scouting.org/MembershipStandards/Resolution/results.aspx.
[2] This advisory opinion is limited to the facts presented and should not be construed as applying to volunteer positions within other organizations.

Committee on Judicial Ethics