The state of California has effectively banned its 2,000 state court judges from participating in the Boy Scouts. The California Supreme Court recently voted unanimously to eliminate an exception for nonprofit youth groups to a rule that prohibits California judges from belonging to groups that practice discrimination on the basis of sexual orientation. The judges have until January 21, 2016, to sever any connection they have with the Boy Scouts.
Although California judges have long been barred from membership in groups that discriminate on the basis of race, gender, religion, or sexual orientation, the state’s Supreme Court approved an exemption in 1996 for “nonprofit youth organizations” to accommodate judges affiliated with the Boy Scouts.
In 2003, after the San Francisco Bar Association and other legal organizations sought to repeal the exemption, the California Supreme Court instructed judges to disclose their connections to the Boy Scouts when they heard gay-rights cases, and to recuse themselves for any conflicts of interest. In 2014, an ethics advisory committee recommended eliminating the exception altogether. The proposal was supported by the California Judges Association, which represents three-quarters of the state’s judges.
So why the Boy Scouts?
Founded in 1910, the Boy Scouts has about 2.7 youth members and more than 1 million adult volunteers. It was always looked upon as an organization that stood for old-fashioned values and wholesomeness. Homosexuals were neither allowed to be scout leaders nor members. But in 2013, the Boy Scouts’ approximate 1,400-member National Council agreed in a resolution to admit openly gay boys as members (effective January 1, 2014) after intense lobbying by gay-rights activists, and after 61 percent of local Scout leaders voted at their annual meeting to support the proposal. Nevertheless, even though the resolution still stated, “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,” some conservative religious groups were saddened by the change in policy, even predicting a “mass exodus” from the Boy Scouts.
The ban on gay Scout leaders was left in place. It led Disney last year to “cut off funding” to the Boy Scouts “through its employee volunteer program.” And now it has led to California’s barring its judges from participating in the Boy Scouts.
Harvard Law professor Noah Feldman maintains that “the current state of the law allows judges to belong to religious groups that discriminate but not secular organizations that discriminate. ‘So if the particular judicial code bans belonging to organizations that discriminate on the basis of sexual orientation, then it would make sense that the Boy Scouts would be included.’”
California judges are therefore free to belong to whatever religious organizations they want to, including ones that discriminate, not only on the basis of sexual orientation, but also on the basis of sexual identity, such as the prohibition against female clergy in the Catholic Church and many conservative Protestant groups. But the Boy Scouts is not a religious organization.
The decision of the California Supreme Court has drawn a mixed response from state judges. San Diego judge Julia Kelety disagreed with the ruling: “The issue is whether individual judges can choose in their private lives to be involved in an organization that has tremendous qualities and provides tremendous support for young people.” Robert Glusman, a former president of the California Judges Association, which supports the ban, began his objection with a question: “Would a judge be able to join an organization where black men could not be part of the organization? I don’t think that would be as close a question. Here we’re dealing with gay men or LGBT. So we put it in a slightly different framework, but there is something that rankles many of the judges about that.”
Professor Feldman believes that the U.S. Supreme Court will one day take up the question of judges’ free association rights, and when it does, he thinks the Court will say that judges can participate in organizations such as the Boy Scouts, regardless of their discriminatory policies. The good professor is certainly welcome to his opinion on what the Court will eventually do, but he is not welcome to spread misinformation about Americans’ free exercise and free association rights: “You have a free exercise right to pray where you wish. And you have a free association right to belong to whatever club you wish to belong to,” he says. “And I don’t actually think the distinction between the two is constitutionally justified.”
But you don’t right now have a free exercise right to pray where you wish in American society. And neither do you have a free association right to belong to whatever club you wish to belong to. You have never had these rights, you don’t have them now, and neither would you have them in a libertarian, that is, a free society, should the United States ever become one.
How much ink has been spilled, and how many court cases have been tried, over the issue of children’s praying in their public schools or at their school’s sporting events? It is simply not allowed. Does a Muslim or a Jew have the right to pray out loud in the middle of a service at a Christian church? Does a Christian have the right to pray out loud in the name of Jesus at a Muslim mosque or a Jewish synagogue? Does any adherent of any religion have a free exercise right to pray out loud at the annual American Atheists National Convention? Does any adherent of any religion (including my own) have a free exercise right to pray in my living room if I don’t want him to?
The same goes for the free association right to join a club. Just because you want to join a particular club, it doesn’t follow that you have the right to join. Not unless members of a club that you want to belong to are forced to admit you. Should a woman’s organization have to admit men? Should the Masonic Lodge have to accept all comers? Should a black group have to admit white supremacists? Should a Jewish organization have to admit Neo-Nazis? Should a Christian group have to admit atheists? Should a heterosexual group have to admit homosexuals? Should a vegetarian group have to admit meat eaters? Should an environmentalist club have to admit those who don’t recycle?
And looking at free association from another angle, can a group of whites, blacks, Jews, or Christians even get together and start an organization or open a business that excludes from membership or refuses service to all who are not like them? Of course not. Not in America.
In a free society, no one has the right to pray or otherwise exercise his religion anywhere but on his own property or on property to which he has been granted access.
In a free society, property ownership inherently includes the rights of exclusion and refusal of service.
In a free society, any individual or group has the right to associate with any other individual or group willing to associate with him or it.
In a free society, any individual or group has the right to not associate with any other individual or group willing to associate with him or it.
In a free society, any individual or group does not have the right to associate with any other individual or group not willing to associate with him or it.
In a free society, there is no distinction between discrimination as practiced by religious groups and discrimination as practiced by secular organizations.
In a free society, the rights of exclusion, refusal, discrimination, and nonassociation are absolute; they can be exercised on the basis of any standard and for any reason — regardless of whether a busybody or bureaucrat considers the standard or reason to be illogical, unreasonable, irrational, hateful, bigoted, or racist.
In a free society, it couldn’t be any other way.