CJEO Oral Advice Summary No. 2015-014 — Judicial Membership in a Church-Sponsored Boy Scouts of America Troop

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary No. 2015-014
[Posted November 12, 2015]
JUDICIAL MEMBERSHIP IN A CHURCH-SPONSORED BOY SCOUTS OF
AMERICA TROOP
I. Question:
Will the California Code of Judicial Ethics prohibit a judge from continuing to be
the scoutmaster of a local Boy Scouts of America (BSA) troop that is sponsored by the
judge’s church after the canon 2C amendment becomes effective in January, 2016, and
the “youth organization” exemption is eliminated from the ban on membership in
organizations that practice invidious discrimination?
II. Oral Advice Provided:
Canon 21 prohibits membership in “any organization that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or
1 All further references are to the canons and Advisory Committee commentary in the
California Code of Judicial Ethics.

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sexual orientation.” The amendment to canon 2C that becomes effective in January of
2016 eliminates a canon 2C exception for membership in nonprofit youth organizations,
such as BSA. Following the amendment, canon 2C continues to state that it “does not
apply to membership in a religious organization.”
The Advisory Committee commentary to canon 2C advises that determining
whether an organization practices invidious discrimination depends on such “relevant
factors as whether the organization is dedicated to the preservation of religious . . . or
other values of legitimate common interest to its members. . . . Absent such factors, an
organization is generally said to discriminate invidiously if it arbitrarily excludes
members on the basis of . . . sexual orientation . . . .” (Advisory Com. commentary, Cal.
Code Jud. Ethics, foll. canon 2C; see also California Judges Association Formal Opinion
No. 34, p. 3 (CJA) [citing and applying the Advisory Committee commentary following
canon 2C as a “test” to determine whether a men’s service club practiced invidious
discrimination].)
In the context of gender discrimination, canon 2C has been interpreted to allow a
judge to be a member of a local group that does not discriminate against women even if
the group is part of a national or international organization that allows invidious
discrimination based on gender. (Rothman, Cal. Judicial Conduct Handbook (3d ed.
2007) § 10.25, pp. 539-540 (Rothman); CJA Opinion No. 34, pp. 3-4; see also CJA
Judicial Ethics Update (1997) p. 13 [membership in the Masons is improper unless the
judge is satisfied that it is a religious organization or does not invidiously discriminate in
light of canon 2C].) Thus, the focus of a canon 2C inquiry is on the membership
practices of the specific local group in which a judge seeks to participate.

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Historically, BSA has prohibited youth and adult membership based on sexual
orientation. In January, 2014, BSA adopted a policy that no youth will be denied
membership on the basis of sexual orientation. In July, 2015, BSA adopted a policy that
BSA employees and non-unit-serving volunteers will not be denied membership on the
basis of sexual orientation. The policy also states that chartering organizations, such as
those sponsoring local troops, have the right to select adult scout leaders based on the
chartering organization’s religious and moral values concerning sexuality.
Given these policies, the requesting judge must determine for himself whether or
not his church-sponsored BSA troop excludes adult gay members based on his troop’s
commonly-held religious values concerning sexuality:
“A judge must determine for himself or herself whether a particular organization . .
. practices invidious discrimination. The fact that no members of a particular race,
gender, or other group are members of the organization, even where no by-law
exists barring members of such groups, can be an indication of discriminatory
practices or policies. Under those circumstances, the judge must investigate to be
sure that there is no such policy or practice. Membership in a local club that does
not discriminate is not prohibited, even if the club is part of a national or
international organization that does discriminate.” (Rothman, supra, § 10.30, pp.
539-560, citing CJA Op. No. 34, pp. 3-4.)
The advice from CJA cited by Judge Rothman is in accord:
“Where an organization has made a formal decision to end discriminatory
membership practices, but those previously excluded have not in fact yet been
admitted, the judge who wishes to remain a member must hold a conscious belief

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that the open-membership policy is bona fide and will be implemented in the
ordinary course of events. If, in the circumstances, as he or she knows them, the
judge cannot hold such a belief, Canon 2C requires resignation from the
organization.” (Id., p. 4.)
Accordingly, the committee cannot provide an opinion as to whether the requesting
judge’s troop, or any BSA troop, has a bona fide open-membership policy or is dedicated
to shared religious values. The judge must investigate his troop’s policies, practices, and
values of common interest to the troop members. Canon 2C, effective January, 2016,
will permit the judge’s membership in his church-sponsored BSA troop if he is satisfied
that the troop does not exclude members based on sexual orientation, or if he is satisfied
that the troop is an organization dedicated to the preservation of religious values of
legitimate common interest to the troop members. (Advisory Com. commentary, supra,
foll. canon 2C.)
The requesting judge’s challenges to the constitutionality of the canon 2C
amendment are legal questions beyond the scope of CJEO’s authority and are nonetheless
moot given the conclusions above.
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This oral advice summary is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal.
Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based on
facts and issues, or topics of interest, presented to the California Supreme Court Committee on
Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court, rule 9.80(i)(3); CJEO
rules 2(f), 6(c)), or on subjects deemed appropriate by the committee (Cal. Rules of Court, rule
9.80(i)(1); CJEO rule 6(a)).