Orlando Sentinel, Saturday, August 7, 2004, Gina Holland
Atlanta — Judges are on the front line of battles about legal rights for same-sex couples and should never belong to an organization that discriminates against gays, supporters of a proposed change to American Bar Association ethics rules argued Friday.
Judges are already prohibited from joining clubs that discriminate based on race or sex. An ABA panel is debating whether to make groups that discriminate against gays off limits as well.
The ABA, the nation’s largest lawyers’ group, with more than 400,000 members, writes conduct rules for judges and lawyers. States and federal courts generally adopt them, with some changes.
It is not known how many judges participate in groups such as the Boy Scouts that have policies against hiring gays or having gay leaders, or some veterans groups that restrict membership to heterosexuals.
The ABA held an all-day public hearing Friday on proposed judicial-ethics changes during the association’s summer meeting, which runs through Tuesday.
Rules on gifts judges may accept and judges’ involvement in fund-raisers may also be changed.
The ABA is not expected to vote on any changes until next year. It would be the first over-haul of the rules in more than a decade, and any changes eventually could affect thousands of judges.
Meanwhile, a new report by the Government Accountability Office, Congress’ auditing arm, shows that some judges request–and receive permission–to withhold information about gifts from the public on the premise that their safety could be compromised.
The ABA ethics panel is considering redefining a gift, possibly to include paid trips to seminars.
“Judges are already prohibited from joining clubs that discriminate based on race or sex”
Why? What says that if Sandra Day O’Conner wishes to partake in a private club or organization that is female-only that she is therefore incapable of being impartial when ruling from the bench on issues of gender discrimination? This is silly.
The whole point of having a private club is to be able to differentiate members from non-members by some common belief or characteristic. As long as the organization/religion is not receiving federal funds from those they by nature excluding, there should be no issue.
Perhaps the Bar Association is deliberating this policy change with the Supreme Court case Romer v. Evans (1996) in mind. See
http://supct.law.cornell.edu/supct/html/94-1039.ZO.html
The case involved a 1992 Colorado statewide referendum that would prohibit and repeal any law designed to protect gays and lesbians from discrimination. Under the referendum gays could be legally denied employment, housing from land lords, protection from the fire department, or services from hospitals and have no legal recourse in the courts.
In striking down this referendum as a violation of the 14th amendment’s equal protection clause, Justice Kennedy wrote:
“laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not.”
In other words laws based chiefly on animus against a target group with no rational relationship to a legitimate state interest cannot stand.
Dean, you really are too much – quoting justice Kennedy as some sort of moral authority, as if the man would know the right thing if it came up and bit him. For something other than Dean’s usual secularism, see:
http://www.firstthings.com/ftissues/ft9611/articles/eodmaster.html
On the moral and legal silliness/danger of the case he cites above, Romer v. Evans.
Christopher: that article you provided the link for contains the strongest legal argument against gay marriage I’ve seen. While I disagreed with a lot of what the author said he made one point that stopped me dead in my tracks. The legal arguments for prohibiting polygamous marriages can be applied to argue against gay marriage, while conversely, the legal arguments being made to support gay marriage can be used to defend polygamy.
Certainly I do not favor polygamy, but in order to outlaw polygamy you have to give the state the power to define marriage and its parameters. The state’s definition of marriage is based largely on societal norms, which are in turn very much shaped by religious beliefs.
Someone arguing against laws banning gay marriage would have to show that it violates their contitutional rights while not advancing a legitimate state interest. But what legitimate, and purely secular, state interest is there in outlawing polymamy? Very few (inheritance issues, shrinking the supply of eligible women). Mostly however, laws against polygamy are based on religious beliefs.
So the person defending gay marriage faces the very difficult task of proving there is a legitimate state interest in banning polygamy, but not one for banning gay marriage.
Father Hans is probably rolling his eys again, as I have argued both sides of an issue, but this is why I enjoy this web site. It makes me think and learn.
Dean, have you been listening to the debate at all before reading this article? The point you suddenly discovered has been made ten different ways in the last month. Another point: your moral reasoning does in fact favor polygamy as a logical extension of you defense of gay marriage. You just don’t see it.