In June of 2013 the Boy Scouts of America announced a policy change. The organization would reverse a longstanding policy and allow openly gay scouts to participate in the organization. I wrote then that the BSA’s attempt to please everybody would result in exactly the opposite effect. Their accommodation to the cultural pressure the gay rights movement and others on the cultural left had been putting on the Scouts for years would not be near enough to satisfy them. On the other hand, the move was viewed as an act of moral cowardice in the eyes of the conservative organizations that had been ardently supporting and defending them for years.
Fast forward to the waning days of this past January and those of us who made this argument were proved right. The Supreme Court of California ruled that starting Jan. 21, 2016, judges serving in the Golden State would no longer be able to be affiliated with the Boy Scouts of America. To put that another way, starting next year, anyone who notes their reception of the prestigious Eagle Scout award, still considered by many to be a great mark of character and a résumé booster, will not be welcome to serve as a judge in the State of California. The Boy Scouts are considered a discriminatory organization and with but a single exception — churches — judges in California cannot belong to organizations that discriminate on the basis of race, religion, national origin, sex, or sexual orientation.
This decision comes a year after an advisory panel asserted that because of their ongoing discrimination on the basis of sexual orientation “eliminating the exception and prohibiting judges from being members of or playing a leadership role in the Boy Scouts would enhance public confidence in the impartiality of the judiciary.”
Forty-seven states in the union have laws that ban judges from membership in various discriminatory groups so as to not have their impartiality in the administration of justice called into question. Indeed, a judge who was a member of the Ku Klux Klan would undoubtedly have any civil rights decisions he handed down looked upon with at least some skepticism. While all 50 states have laws prohibiting discrimination on the basis of race, religion, national origin and gender, there are 22 states (including California) which add sexual orientation to their list of prohibited discriminations. In these states the question of with which organizations it is illegal for judges to associate becomes more complicated.
Before Congress overturned DADT in 2011, there were three exceptions to California’s anti-association laws for its judges: the military, churches and the Boy Scouts. The military disappeared from that list because they ceased to fall under the state’s criteria of discriminatory organizations. With the actions of the California Supreme Court this past January churches remain as the only exception to the rule.
Let’s think about this for just a minute. While I can see how a judge claiming membership in the Klan could have his civil rights-related decisions questioned, I’m struggling to see how membership in an organization with a long history of public service and character building would cause a judge to be seen as biased. As Noah Feldman of Harvard Law School recently wrote, “It seems much more likely that the point of the prohibition is not to make the judiciary seem fair, but actually to express our collective disapproval of discriminatory organizations.”
As evidence, consider the fact that various religious affiliations are exempt from the ban. Neither Catholic churches nor Orthodox Jewish congregations allow women to serve as priests or rabbis. Do women appearing before the bench fear Catholic or Orthodox Jewish judges will carry a bias against them? For that matter neither the Southern Baptist Convention nor the Mormon Church offer any moral approval of homosexuality. How is it that membership in the Boy Scouts could render California judges less than totally impartial but membership at Saddleback Church or a local Mormon congregation won’t? This is nothing if not wildly inconsistent.
Let us confess the obvious: the trajectory of the court in California is aimed in the direction of eventually banning membership in religious organizations that are not considered sufficiently tolerant. The question then becomes: who will determine which are and which aren’t? There is of course a little thing known as the First Amendment standing in the way of this entirely probable future situation, but it won’t take even the most casual of observers long to notice the glaring inconsistency in the law. For example, many Boy Scout troops are sponsored by churches. How does it make sense for a judge to be banned from associating with a Boy Scout troop while being able to publicly maintain membership in the church that sponsors it (and presumably agrees with its supposedly discriminatory position)?
The simple truth here is that the State of California has declared a discriminatory preference for the secular worldview over and against any other. When you make the shift to thinking of religions as representing unique worldviews and recognize that secularism itself represents a unique worldview it becomes clear that what is going on here is the official recognition of one worldview over and against others which is a rather explicit violation of the First Amendment. The First Amendment holds them back from a more aggressive effort to give secularism an officially favored position, but surely the same legal theorists who proposed banning judicial membership in the Boy Scouts will be able to find a way to eventually ban judicial membership in churches and other religious congregations.
This year we have already learned that publicly expressing beliefs about homosexuality consistent with many different religious traditions renders one unfit for a public service job. Now we see that belonging to an organization with deep religious (specifically Christian) roots and which does not fully embrace homosexuality renders one unfit to serve as a judge in California.
There may be many voices arguing against and even mocking the notion that Christians in this country face any kind of religious persecution, but given the clear trajectory here I wonder how long they will be able to make their case with a straight face. The persecution slowly seeping onto the scene in America may not be as gratuitous as is found in, say, North Korea, but its subtle nature makes it in some sense more dangerous. All the momentum is pointed against public displays of an orthodox Christian faith commitment. And given that orthodox Christianity involves an inherently public display of fidelity, this momentum is really against the orthodox Christian faith as a worldview commitment.
The Boy Scouts of America were the victims here. When will churches find themselves in the culture’s crosshairs? Current trends suggest it will only be a matter of time. We don’t like inconsistencies and California’s won’t be allowed to stand for long.