The California Supreme Court’s recent revisions to California’s Code of Judicial Ethics represent one of the latest strikes against the First Amendment freedom of association. These revisions put California in the company of dozens of other states that prohibit judges from membership in the Boy Scouts of America because it is an organization that has invidiously discriminated against people on the basis of sexual orientation. This Note addresses the constitutional challenges that Californian judges could raise against Canon 2C of California’s Code of Judicial Ethics. It examines Canon 2C as a policy that impedes judges’ free exercise of religion and associational rights, and as a policy that potentially represents a religious test for judicial office. This Note also examines the impact that a recent policy change by the National Executive Board of the Boy Scouts of America—which allows homosexual individuals to serve as adult leaders—will have on the application of Canon 2C.
This Note presents an original First Amendment analysis of Canon 2C and its analogs in twenty-three other states in light of the Supreme Court’s recent decision in Williams-Yulee v. Florida Bar. It further explains why Canon 2C, as applied to judicial membership in the Boy Scouts, is neither a narrowly tailored policy nor the least restrictive means for maintaining the appearance of an impartial judiciary. This Note concludes by suggesting less restrictive alternatives for dealing with judicial membership in organizations such as the Boy Scouts.