Scout's Honor: The Boy Scouts, Judicial Ethics, and the Appearance of Partiality

Abstract

This article will consider the constitutionality of the California Judicial Boy Scout Ban. Because most states including California model their code of ethics after the Model Code of Judicial Conduct, these argument will also apply with equal force to other states that have bans on judicial membership in groups that engage in invidious discrimination. First, this article will look at the text and history of the California Judicial Canon of Ethics to show that the state has deliberately targeted the Scouts and other expressive associations. Next, this article will look at the wide range of constitutional rights that are substantially burdened by the canon, including freedom of association, free exercise, and parental autonomy. As a result, the proper standard of review is Strict Scrutiny, even though judges are public officials, and the State must justify the restriction by pointing to a compelling interest and employ the least restrictive means.To justify its restriction, the state argues that membership in a group such as the Boy Scouts which engages in invidious discrimination creates an appearance of partiality and bias. Gay and lesbians standing before a judge who is a member of the Scouts will have reason to believe that the judge cannot fairly administer justify. Moreover, the general public will lose confidence in the integrity and objectivity of the judiciary. However, as this article will show, avoiding a generalized appearance of impropriety cannot be a compelling governmental interest. Drawing on recent Supreme Court cases in the realm of campaign finance, this article will argue that avoiding a generalized appearance bias (as opposed to the appearance of specific bias against an actual party before the Court) cannot be a compelling governmental interest. Moreover, the California policy is also poorly tailored to achieve the state’s interest because it is both grossly over and underinclusive, and relies on a cynical view of the judiciary which undermines the state’s purported interest in public confidence in the system. Moreover, a wide variety of less restrictive alternatives exist.