Politics & Policy

An Invidious Prohibition

Building bias into the judiciary.

In July, a commission of the American Bar Association proposed a potentially momentous change to its Model Code of Judicial Conduct. That code, which both the federal government and many state governments have used as a guide, would now expand a prohibition against judges’ membership in “discriminatory organizations” to include any group that discriminates on the basis of sexual orientation.

Although it is easy to imagine political or marketing reasons for the change, the practical need for it is unclear. Consider the rule’s first point of commentary, which provides guidance on the “complex question” of whether “an organization’s practices are invidiously discriminatory”:

[The rule] 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, purely private organization whose membership limitations could not be constitutionally prohibited.

The invitation to judge which “cultural values” are “legitimate” involves, to be sure, a subjective ambiguity that homosexual activists would never accept in a policy with traditionalist ends. Nonetheless, a quick mental survey of America’s current social landscape produces no obvious organizations that judges would have to abandon. Reviewing the matter on its Weblog, Christianity Today’s Ted Olsen, suggests that even the much maligned Boy Scouts can point to the U.S. Supreme Court’s affirmation of its constitutional right to exclude homosexuals. Ultimately, Olsen concludes that “the new rule may be less about prohibition and more about pressure.” But pressuring whom?

If the ABA seeks to apply pressure to change laws or to change organizations’ policies, it can do so in its usual manner: by declaring support or condemnation as appropriate. The ABA’s white paper on same-sex marriage, released in June, relates a parallel example using that method. It acknowledges that “[f]ederal courts uniformly have denied Title VII. . . protection to lesbians and gay men who have alleged employment discrimination.” Then, in an appendix, it refers to the ABA’s application of pressure to this matter in the form of a 1989 statement urging legislation to provide such protection.

Interestingly, the white paper includes, in a list of the ABA’s policies related to homosexuality, the current code of conduct–the 1990 version, which does not prohibit membership in groups that discriminate on the basis of sexual orientation. That code is placed, conspicuously, amidst three decades of declarations “supporting,” “favoring,” and “urging” incremental enactment of the gay movement’s agenda, from the decriminalization of sodomy to gay adoption. Consequently, the proposed change in the language, now, appears to mark a departure from the previous tactics in this long campaign. Could the different approach be meant to be more substantial–to have more effect–than simple pressure?

Intentions aside, the effects would seem likely to increase in correlation with any expansion in the categories of unlawful discrimination–say, with a change in marriage law to include homosexual couples. That issue, as it happens, represents another surprising ABA omission: The organization is neither “favoring [n]or opposing laws that would allow same-sex couples to enter into civil marriage,” as Phyllis Bossin, chairwoman of the ABA’s Section of Family Law, told the Senate Judiciary Committee during March’s marriage-amendment discussion. Of course, that Ms. Bossin proceeded to list all of the reasons that states might wish to redefine their marriage laws, without a whisper about why they might not, provides a marker by which to gauge the ABA’s neutrality, if not its “confidence in the wisdom of the people and their representatives.”

Whatever the mechanism of implementation, a country that recognizes same-sex marriages is one in which discrimination can be held as invidious in new ways. The Salvation Army already may lose its New York City contracts because it doesn’t offer health benefits to unmarried domestic partners. In various cases across the country, the Boy Scouts are facing threats to both funding and land usage. Perhaps most relevant of all is the California supreme-court ruling that the mission of Catholic Charities is not sufficiently religious in nature to grant it an exemption from a law requiring employee prescription drug benefits to include contraception.

To use the language of the ABA’s proposed ethics rule, the court deemed Catholic Charities insufficiently “dedicated to the preservation of religious, ethnic or legitimate cultural values” to count as a religious organization. By this measure, one can only guess where an organization that places the right to discriminate above millions of dollars in contracts would stand on the religiosity and invidiousness scales. Surely, groups that refuse to call a “marriage” a marriage will fall on the wrong side of the latter adjective. The former adjective might offer such a slight loophole as to let religious judges slip from the bench to the pew only.

The truly invidious possibility is, however, that religious organizations–and their worldview–will come to lack sympathy within the judiciary by design. If an individual judge’s membership in a group raises questions about his impartiality, what is forgivably concluded from an institutional prohibition against membership? For its part, the American Bar Association has a history of bias against the traditional side of the cultural divide, and with its recent noises about religiously based healthcare organizations, that bias is of growing breadth. Recalling that the Model Code of Judicial Conduct covers discrimination on the basis of religion, judges might soon have reason to wonder whether, just to play it safe, they ought to quit the ABA, too.

Justin Katz is the author of the weblog Dust in the Light.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”


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