Bench Memos

California Supreme Court Versus Boy Scouts

In more news from the Intolerant Ideology of Tolerance: As this Orange County Register article reports, the California supreme court last week voted unanimously to “prohibit state judges from belonging to the Boy Scouts on grounds that the group discriminates against gays.” (In May 2013, the Boy Scouts eliminated its prohibition of youth members who are “open or avowed homosexuals” but retained its prohibition of adult leaders who are.)

I’ve received a copy of comments that Stanford law professor Michael McConnell and others submitted in opposition to the proposed change to the state judicial code that the California supreme court approved. Among their points:

Prohibiting judges from participating in intimate associational activities with their children implicates the constitutional rights of families (and as a matter of policy improperly interferes with important familial relationships). See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972)….

Adult participants in the Boy Scouts are leaders. Expressive associational and religious freedom interests are at their zenith, and the right of the government (though still very limited) to burden such interests is at its nadir, when choice of and participation in leadership is at issue. See, e.g., Boy Scouts of America v. Dale, 530 U. S. 640, 648 (2000). Consider also the recent Hosanna-Tabor decision, and Roberts v. United States Jaycees, 468 U. S. 609 (1984).

Prohibiting a judge who is a member of a religious congregation from participating in its scout troop (or cub scout pack) prevents the judge from fully participating in the life of his or her religious congregation, and in that congregation’s ministry. It comes close to a religious disqualification based on the judge’s religious activities (and could even be a form of attainder or “black-listing,” a practice with a very unfortunate history). The United States Constitution explicitly prohibits religious tests for any public office. The prohibition also runs afoul of the protection of religious rights of parents with regard to the building of character of their children, see Wisconsin v. Yoder, supra, which is a key purpose of the Boy Scouts.

I wonder how long it will be before the California supreme court prohibits judges from allowing their sons to belong to the Boy Scouts, from taking part as non-members in Boy Scout events, or from providing any material support to the Boy Scouts.

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