In response to your request dated November 13, 2001, the committee issued CJE Opinion 2002-3, in which it declined, for the reasons contained in the opinion itself, to render an opinion on the question whether your membership in the Ancient Free and Accepted Masons of Massachusetts -- which limits membership to men -- or your acceptance of a leadership role in that organization, or both, would violate Canon 2 (C) of the Code of Judicial Conduct. Relying on Supreme Judicial Court Rule 3:11 (2), the committee did so because it believed that the principles applicable to your request were unclear and might well be clarified by the proposed new version of Canon 2 (C), with new commentary, that is pending before the Supreme Judicial Court.
You have now asked the committee to reconsider its position and to issue an opinion dealing with the current version of the Canon. In your renewed request, you have pointed out that you intend to assume a leadership role in the organization in the near future, and that the Supreme Judicial Court is unlikely to act on the proposed amendment to Canon 2 (C) before then.
Opinion 2002-3 was, in fact, an opinion that focused on the current version of Canon 2 (C). The committee noted the pendency of the Canon's recommended new version not because it believed that the recommended amendment was controlling, but because the very fact that it had been recommended and was under consideration counseled against rendering an opinion in such an unclear area until the Supreme Judicial Court had, and hopefully had taken, an opportunity to clarify the guiding principles.
Nevertheless, in light of your request for reconsideration, the committee has considered the matter afresh. In doing so, it incorporates by reference the factual recitations and the analytical discussion contained in Opinion 2002-3, and notes two additional facts. First, you have informed the committee of your family's long involvement with the Masons. Second, your letter requesting reconsideration states that membership in the Masons occurs when a person desiring membership seeks it by asking a Masonic friend to recommend and sponsor him for membership in a particular lodge. The names of prospective members are read at a regular monthly meeting and the individual is subjected to an investigation by a special visiting committee. If the report is favorable with respect to the applicant's high moral character and good reputation, the application is voted on by the entire membership. Negative votes of any two members will result in rejection of the application.
Analysis under Canon 2 (C)
Against this entire backdrop, the committee therefore begins with the proposition that the Masons practice discrimination, i.e., selection or choice, on the basis of sex. The question under Canon 2 (C), as the committee discussed in the prior opinion, is whether the Masons' discrimination is "invidious."
Of the various approaches to determining the meaning of "invidious" that were detailed in Opinion 2002-3, the committee has concluded that the approach suggested by the ABA commentary to the Model Code of Judicial Conduct, which was quoted in Opinion 2002-3, is most appropriate. (1) Factors to consider under this approach include "how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited." As the commentary notes, "[a]bsent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of . . . sex."
The commentary unfortunately fails to give guidance on how to balance these variables. Nevertheless, at least two factors suggest that the Masons do not engage in "invidious" discrimination within the meaning of Canon 2 (C). First, the Masons seek to promote cultural values of legitimate interest to its members. In doing so, the Masons do not seek to stigmatize any excluded group.
Second, and perhaps of greater relevance, application of the second factor suggests that discrimination is "invidious" within the meaning of Canon 2 (C) only if it is both "irrational and not reasonably related to [a] legitimate" practice, see Indiana Advisory Opinion 1-94, and, in addition, it is not constitutionally protected. Consequently, if an intimate, purely private organization engages in constitutionally protected activity, the commentary suggests that discriminatory components of that activity are not "invidious" within the meaning of Canon 2 (C).
The many Massachusetts cases the committee cited for the proposition that, as used in Massachusetts law, the term "invidious" encompasses any "arbitrary" or "purposeful" discrimination all dealt with conduct that the State had some power to prohibit without trenching on constitutional rights. Clearly, some discriminatory conduct is beyond a State's regulatory power. That point was most recently reiterated in Donaldson v. Farrakhan, 436 Mass. 94, 100-102 (2002). There, the Supreme Judicial Court held that the State had no power to sanction the exclusion of women from a meeting of males conducted in a downtown Boston theater. Distinguishing Concord Rod & Gun Club, Inc. v. Massachusetts Comm'n Against Discrimination, 402 Mass. 716 (1988), the court held that the meeting had been called "for the explicit purpose of engaging in protected expressive activities." Donaldson v. Farrakhan, supra at 100. "Forced inclusion of unwanted members," the court held, "may impair the ability of a group to express only the views it intends to express." Id. at 101. Concluding, the court stated that "[t]o be afforded First Amendment protection, there is no requirement that an association exist for the particular purpose of disseminating a specific message. . . . It must merely engage in expressive activity that would be impaired by the unwanted inclusion." Id. at 102. See also Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569-570 (1995).
The nature of the Masons, including the membership selection process, suggests that the Masons are a purely private organization and that the Masons' practices and activities that your letters describe are constitutionally protected. From your letters, it is apparent that the Masons choose their members and do not simply afford admission to any male who has, for example, some State-issued license freely available to all. Compare Concord Rod & Gun Club, Inc. v. Massachusetts Comm'n Against Discrimination, supra. Moreover, your statement that the organization is dedicated "to enhanc[ing] and strengthen[ing] the character of its individual members by providing meaningful opportunities to further its purposes, tenets and activities, which are exclusively charitable, benevolent, and educational," underscores the organization's expressive component. And, although it is not immediately apparent how admission of women would adversely affect the Masons' ability to achieve their expressive goals, the State simply has no business telling the organization how it should do so. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
Constitutional protection combined with a desire to preserve cultural values of legitimate interest to its members, therefore, leads the committee to conclude that, although the Masons engage in discrimination on the basis of sex, that discrimination is not "invidious" as the term is used in Canon 2 (C).
Analysis under Canon 2 (A)
Concluding that the Masons' exclusionary activity is not "invidious" discrimination, however, does not end the inquiry. The overarching provisions of Canon 2 (A) provide that "[a] judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2 (A) "address[es] matters of appearance." In the Matter of Brown, 427 Mass. 146, 148 (1998). The relevant focus is on whether membership would create an appearance of partiality to a reasonable litigant who appeared before you. Id. at 153. See also Canon 5 (B) ("A judge may participate in . . . charitable activities that do not reflect adversely on his impartiality"). Even if membership in the Masons does not violate the provisions of Canon 2 (C), then, the question remains whether that membership, and particularly your leadership position, in the organization may violate the provisions of Canon 2 (A), and, if so, whether the latter provisions permissibly can be applied to prohibit or punish your participation.
The committee recognizes that longstanding fraternal (and women's) organizations with deep historical family ties may have meaning to an individual judge beyond social convenience or compatibility. Nevertheless, it is clear that many gender discrimination cases play themselves out along society's fault lines. Moreover, those cases often are heavily burdened with emotional content. They frequently deal with the most fundamental elements of the citizenry's sense of justice and the court's role in maintaining a just society. Accordingly, the committee is of the opinion that there is a risk that many litigants and many members of the public in general would lose some degree of confidence in the impartiality (at least in cases involving discrimination) of a judicial decision maker who chooses to exercise his or her constitutional right to join an organization that discriminates on the basis of sex, at least without some easily comprehensible reason why the organization's goals could not be achieved in the absence of its discriminatory membership provisions.
Whether and to what extent such a loss of confidence would in fact occur today depends on many factors. Those factors include, but are not limited to: the judge's public visibility as a member of the organization; the degree to which the judge publicly supports the discriminatory membership provisions or, conversely, urges their elimination; the ability of the organization to demonstrate clearly and convincingly the nexus between its discriminatory membership provisions and achievement of its organizational goals; and the extent to which the impact of the discrimination may be ameliorated by the organization's general relationship with the group against which the discriminatory provisions are aimed. The committee simply does not have sufficient facts to apply these and other relevant factors and to make a firm judgment on whether a loss of public confidence would occur. (2)
As for the second question, the committee is of the opinion that, in an appropriate case, the provisions of Canon 2 (A) can be applied to prohibit or discipline membership in an organization that does not "invidiously" discriminate within the meaning of Canon 2 (C). Years ago, Justice Holmes wrote an opinion dismissing a police officer's challenge to a police regulation that prohibited solicitation of political contributions, stating that "[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor & Aldermen of New Bedford, 155 Mass. 216, 220 (1892). Although subsequent decisions have stripped that epigram of some vitality, the basic rule remains that the State may sometimes regulate the activities of its employees to a much greater degree than it may regulate the activities of citizens in general.
The Supreme Judicial Court's most recent discussion of the issue occurred in Pereira v. Commissioner of Social Servs., 432 Mass. 251, 256-265 (2000). There, the Commissioner of Social Services discharged an employee for making a racially offensive "joke" in a public setting. The "joke" was widely reported in the press and led to a substantial public outcry against the employee who had made it. In seeking reinstatement, the employee maintained that her termination on the basis of the content of her "joke" violated her rights under the First Amendment.
The court, while noting that Justice Holmes's formulation had withered somewhat over time, nevertheless held that the First Amendment does not permit public employees to engage in expressive activity with the same broad freedom that private citizens enjoy. To determine the State's ability to regulate an employee's participation in expressive activities, the court stated, it first was required to determine "whether the public employee was speaking 'as a citizen upon matters of public concern.'" Id. at 257, quoting Connick v. Myers, 461 U.S. 138, 147 (1983). If the answer to that question was yes, then the extent of the State's power to regulate would turn on "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pereira v. Commissioner of Social Servs., supra at 257, quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). "In addition," the court continued, "'the employee's interest in expressing herself on [the] matter must not be outweighed by any injury the speech could cause' to [the employer's] interest." Pereira v. Commissioner of Social Servs., supra at 257, quoting Waters v. Churchill, 511 U.S. 661, 668 (1994).
There can be little doubt that "produc[ing] better citizens" and "enhanc[ing] and strengthen[ing] the character of . . . individual members by providing meaningful opportunities to further [the Masons'] purposes, tenets and activities, which are exclusively charitable, benevolent, and educational," to quote your description of the Masons' objectives, involves activity directed to matters of public concern and interest. The determination of Canon 2 (A)'s permissible applicability thus turns on balancing the government's interest in promoting the appearance and actuality of an impartial judiciary with your interest in Masons membership, or leadership, and any adverse impact on the government's interest that flows from your participation in the Masons.
The kind of highly fact-sensitive inquiry required to arrive at the appropriate balance simply is impossible in the case at hand without a clearer picture of the variables noted above, including a better understanding of the public assessment of the impact of involvement in the Masons and a richer understanding of the organization and the judge's interest in it. Unfortunately, therefore, the committee is not in a position in this case, and probably many other cases, to engage in that analysis and to reach a concrete conclusion with respect to whether, if your participation in a leadership role in the Masons is found to weaken public confidence in your impartiality in cases involving gender discrimination, Canon 2 (A) may be applied to prohibit or penalize that membership. Our inability to render a dispositive opinion stems, in part, from the inherent ambiguity of Canons 2 (C) and 2 (A). The dearth of developed commentary to guide the committee in answering these important and policy-laden questions is particularly frustrating. The committee hopes that the pending proposed revisions of the Code of Judicial Conduct will offer additional guidance for future cases.
In sum, the committee is of the opinion that (1) membership or assumption of a leadership role in the Masons does not violate Canon 2 (C) because, on the facts you have given the committee, the Masons do not "invidiously" discriminate; (2) there is nonetheless a danger that your participation in the Masons will weaken public confidence in your ability to resolve impartially cases involving gender discrimination; and, if so, (3) Canon 2 (A) may be applied to prohibit or penalize your participation in the organization if and to the extent that your interest in Masonic participation is outweighed by the State's interest in the appearance of an impartial judiciary. Unfortunately, the facts presently before the committee do not permit us to render an opinion on how that balance described in (3) will be struck in any given situation or series of situations that you may face in the future.