Membership in Boy Scouts of America

January 25, 2001

CJE Opinion No. 2001-1

You have asked for an advisory opinion concerning membership in the Boy Scouts of America. For the past year, you have served as a co-den parent for your son's Cub Scout den. As a den leader you have organized meetings and activities for the boys in the den so they can earn various badges and recognitions in accordance with the Cub Scout Handbook. The activities include knot tying, use of tools, first aid, and instructions in other practical skills. Beyond running den meetings and participating in the practical-skill instruction attendant thereon, you are not actively involved in planning or implementing Cub Scout policy locally or regionally. Your participation as a den leader requires membership in the Boy Scouts of America. You have become a member of the Boy Scouts to fulfill that requirement and do not actively participate in Boy Scout activities.

It is the policy of the Boy Scouts of America to exclude homosexuals from membership in its organization. The Supreme Court determined in a 5-4 decision, Boy Scouts of America v. Dale, 120 Sup. Ct. 2446 (2000), that the First Amendment rights of the Boy Scouts prevent a state from forbidding them to discriminate in that fashion. You state that before the Supreme Court decision you were unaware of the Boy Scouts' membership policy and that you disagree with it. You ask whether the Code of Judicial Conduct requires you to resign your membership.

Canon 2(C) prohibits a judge's "membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin." "Sexual orientation" is not mentioned among the protected categories in Canon 2(C). The word "sex" means gender and not "sexual orientation." Therefore Canon 2(C) does not prohibit your membership in the Boy Scouts.

Since Canon 2(C) does not proscribe your participation in the Boy Scouts, the question arises whether any of the broader, more general provisions of the Code prohibit your membership. For example, Canon 2(A) states that a judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and Canon 5(B) says that "a judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality." We have previously read these provisions as prohibiting membership in certain legal advocacy groups like the Coalition for Battered Women (CJE Opinion 91-2) and Gay and Lesbian Advocates and Defenders (CJE Opinion 95-8). In the former case, we advised a Probate & Family Court judge that it would violate Canon 2 for the judge to serve on the advisory group of a battered women coalition because the group advocated the interests of a class of parties whose interests were frequently involved in matters that came before the judge. In the latter case, we advised that the judge should not be a member, but might be able to participate in some activities of, an advocacy organization that frequently engaged in litigation. But our advice in those cases was not premised on the notion that those organizations are engaged in "invidious discrimination," which is Canon 2(C)'s premise for forbidding membership in the organizations listed in that Canon. It was premised on the notion that the organizations involved were issue-oriented and that those issues were likely to be presented on occasion in the courts of the Commonwealth. That is not the situation with respect to the Boy Scouts. Although the national organization states a policy of excluding gays and lesbians from membership, that is not the stated purpose of the organization and it apparently does not engage in advocacy litigation directed toward that end.

Nevertheless, the argument may be made that membership in the Boy Scouts, now that its policy has been made apparent, reflects adversely upon the judge's impartiality and hence violates Canons 2(A) and 5(B). We do not reach that conclusion. We are not prepared to say that Canon 2(C) states an exclusive list of characteristics for defining organizations to which judges may not belong. Nevertheless, at the very time that the Supreme Judicial Court added Canon 2(C) to the Code of Judicial Conduct, it also added Canons 3(B)(5) and (6). See 411 Mass. 1301, 1317 (1991). Those two latter sections required judges, and required judges to require lawyers, not to manifest prejudice based upon "race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status." Canon 2(C), however, proscribed membership in organizations practicing "invidious discrimination" on the basis only of "race, sex, religion, or national origin." For reasons best known to itself, the Supreme Judicial Court chose not to proscribe membership in organizations invidiously discriminating on the basis of disability, age, sexual orientation, and socioeconomic status. We think it would be beyond our mandate to interpret another section of the Code of Judicial Conduct to mandate what the Court itself quite deliberately appears to have chosen not to do in 1991.

The foregoing is not to say that there are no conceivable circumstances under which you might be required to terminate your membership in the Boy Scouts or to recuse yourself from cases because of your Boy Scout membership. See generally CJE Opinion 2000-7. Instead, in rendering this opinion, the Committee has limited itself to the facts surrounding your participation in the Cub Scouts and Boy Scouts as you have presented those facts and ventures no opinion, expressly or by implication, regarding the result a different set of facts might produce. See generally CJE Opinion 95-1.