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The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.
You seek from the Committee on Judicial Ethics an opinion regarding whether the Code of Judicial Conduct permits your membership in the Ancient Free and Accepted Masons of Massachusetts ("Masons") and, if so, whether you may assume a leadership role in the Masonic Lodge to which you belong. The Committee's dilemma in responding to your request springs from the facts contained in your letter, the complicated state of the current law bearing on those facts and the additional complication added by the prospect that the governing law may change in the near future.
Factually, your letter states that the Masons is a charitable and fraternal organization that has been in existence since before the Revolution.(1) It is the oldest and largest fraternal order in the world. The Masons has no political agenda other than to produce better citizens. The organization is dedicated to enhancing and strengthening the character of its individual members by providing meaningful opportunities to further its charitable, benevolent and educational goals and tenets.
Your request arises out of the fact that, for centuries, membership in the Masons has been limited to adult males. That limitation derives from an historical artifact. As the Grand Lodge of Massachusetts has explained,
"[i]n operative masonry [centuries ago], women and young men could not work at the mason's trade. Membership in the Craft has therefore been traditionally confined to male adults, and from long usage, this practice has become imbedded in the Fraternity as a Landmark."
The Masons do not exclude from membership anyone because of their race, ethnicity, national origin or religion although a professed belief in a Supreme Being, however characterized or conceptualized, is a membership requirement. Likewise, the Masons makes no distinction based on class, social position or wealth and prohibits use of the organization for "networking" or other business enhancements.
Your letter states that the Masons sponsors, supports and involves itself in a number of charitable organizations specifically created for women who are interested in furthering the Masons' goals and charitable objectives. The most notable of those organizations are the Order of the Eastern Star, open for membership to women 18 years of age or older who are directly or indirectly related to Masons, and the International Order of Rainbow, open for membership to all young women between the ages of 11 and 20.
Summarizing the Masons' goals and history, you have stated that you do not believe that the Masons practices "invidious" discrimination because the organization does not conduct itself in a manner that in any way injures, disadvantages, slights, disparages or disdains nonmembers or those who are not eligible for membership.
Turning from facts to governing principle, you have correctly pointed out that the relevant portion of the Code of Judicial Conduct is Canon 2(C). In its entirety, Canon 2(C) now states that "[a] judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin." The first question therefore is whether Canon 2(C) prohibits your membership in the Masons.
There is no doubt that, as an organization, the Masons practices discrimination, i.e., selection or choice, on the basis of sex.(2) Determining whether that discrimination is "invidious" is a task of some difficulty chiefly because the word "invidious" as used in Canon 2(C), and elsewhere in the law, is a conclusion, not an analytical tool. Nevertheless, two broad approaches to determining whether discrimination is "invidious" within the meaning of Canon 2(C) have been employed elsewhere.
The first approach involves looking, as you did, at the word "invidious" in its dictionary sense, a sense that limits the reach of the term to discrimination that tends "to cause discontent, animosity or enmity" or which is "of an unpleasant or objectionable nature." Webster's Ninth New Collegiate Dictionary (Merriam-Webster 1987).(3) The Arizona Advisory Commission has applied the term in that limited fashion. Arizona Advisory Opinion 94-13. That likewise was the approach taken by the ABA Standing Committee on Ethics and Professional Responsibility when it delivered to the ABA House of Delegates the Report that accompanied what was then the Standing Committee's proposed 1990 Code of Judicial Conduct. Finally, that is the approach taken by Georgia, which has modified Canon 2(C) to limit the section's prohibition to discrimination stigmatizing those excluded as "odious" or "inferior," and South Dakota which has stated as follows in its commentary to Canon 2(C):
"Organizations dedicated to the preservation of religious, fraternal, sororal, spiritual, charitable, civic or cultural values, which do not stigmatize any excluded persons as inferior and therefore unworthy of membership, are not considered to discriminate invidiously."
A second approach equates the word "invidious" with "arbitrary," i.e., functionally unrelated to a legitimate organizational need. That is the approach taken by the ABA itself, notwithstanding the recommendation of the Standing Committee, when it adopted the Code and included the following language in the commentary:
"Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from mere examination of an organization's current membership rolls but rather depends on 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. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex or national origin persons who would otherwise be admitted to membership. See New York State Club Association, Inc. v. City of New York, [487 U.S. 1] (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987); Roberts v. United States Jaycees, 468 U.S. 609 (1984)." (Emphasis added).
In view of those comments, which were not adopted as part of the Massachusetts Code of Judicial Conduct, it is not surprising that a number of opinions have held that discrimination is "invidious" within the meaning of Canon 2(C) if the discrimination is "irrational and not reasonably related to legitimate purpose." Indiana Advisory Opinion 1-94. See also Alaska Code of Judicial Conduct, Commentary Canon 2(C).
While this Committee has not previously dealt with the term "invidious" in the context of Canon 2(C), Massachusetts law in other contexts equates "invidious" with "arbitrary." Thus, in Attorney General v. Massachusetts Interscholastic Athletic Association, Inc., 378 Mass. 342, 355 (1979), the Supreme Judicial Court stated that permissible distinctions based on sex would have to be "exceedingly persuasive" and went on to say that "[d]istinguishing 'remedial' from invidious classifications in the context of sex is particularly difficult because of the likelihood that benign purposes may inadvertently perpetuate outmoded stereotypes." Id. at n.32. See also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270 (1993).
Other Massachusetts cases likewise have equated the term "invidious" with the term "arbitrary" or "purposeful" and "arbitrary" without examining whether or not the discrimination is "odious" or "stigmatizing." E.g., Fedele v. School Committee of Westwood, 412 Mass. 110, 115-16 (1992); Opinion of the Justices, 408 Mass. 1215, 1224 (1990); Edgar v. Edgar, 403 Mass. 616, 619-20 (1988)("If the legislative classification is not 'purely arbitrary,' it does not create an 'invidious discrimination' and therefore, does not violate the equal protection clause."); Commonwealth v. B&W Transportation, Inc., 388 Mass. 799, 804 (1983); Klein v. Catalano, 386 Mass. 701, 717 (1982) quoting New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976) ("[I]t is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment."); Moe v. Secretary of Administration & Finance, 382 Mass. 629, 653-54 (1981); Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 274 (1981); Zayre Corp. v. Attorney General, 372 Mass. 423, 443 (1977); Hanson v. Markham, 371 Mass. 262, 264-65 (1976); Begley v. Board of Appeal of Boston, 349 Mass. 458, 460-61 (1965). See also Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489(1955); Skinner v. Williamson, 316 U.S. 535, 541 (1942).(4)
The question the Committee faces, therefore, concerns which of the two approaches to adopt. That already difficult task is made more difficult by the fact that on December 18, 2001, the Supreme Judicial Court's Committee to Study the Code of Judicial Conduct filed with the Court its proposals for revisions in the existing Code. On January 15, 2001, the Court released the proposals, with the individual dissenting comments of some Committee members, for public comment. The entire package can be found at http://www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/codejudicialconductmemo.html. [Editor's Note. This link was operable at the time the opinion was written. The documents on the web site have since been moved or deleted, however, and the link is no longer operable.]
Insofar as is here material, the Committee recommended revision of the text of Canon 2(C) in ways that are not here material but also recommended adoption of commentary that is substantially similar to the ABA commentary quoted above. That commentary suggests that determining whether discrimination is "invidious" requires determining whether the discrimination is constitutionally immune from governmental regulation as well as "irrational and not reasonably related to legitimate purpose."
What's more, Prof. Andrew Kaufman, one of the Committee's twelve members and a member of this Committee, issued a separate statement with respect to the proposed commentary on the ground that its attempt to define "invidious" is very confusing and unhelpful.
At present, then, the governing principles not only are unclear but are in a state of flux. The Committee can only guess at the direction the Supreme Judicial Court will take when it finally considers what to do with the recommended changes to Canon 2(C). Until the governing principles become fixed through the Court's action on the pending recommendations, the Committee respectfully declines to answer the question you have posed.(5) See SJC Rule 3:11(2); CJE Rule 6.
(1) All of the Committee's information about the Masons comes from the content of your letter and the Committee has done no independent research of its own.
(2) It is also conceivable that the organization discriminates on the basis of religion, at least if the term "religion" is viewed in its broadest sense. The Committee takes no position on whether the Masons does or does not discriminate on the basis of religion and simply points out that there is a question in that regard. If the Masons does discriminate on the basis of religion, then the remaining analysis would be identical to the analysis required for discrimination based on sex.
(3) Despite its attractions, the dictionary approach runs into immediate difficulties because most of the terms used to define "invidious" depend on the perspective from which the exclusion is viewed. For example, although the Masons may intend to cause no discontent by its exclusion of women, women may indeed be discontented by the fact that they cannot join.
(4) Many of cited cases do not deal with "protected classes" and do not apply the doctrine of "strict scrutiny." Accordingly, they hold that discrimination is not "arbitrary," and thus "invidious," if the discrimination serves some rational purpose. When the discrimination is based on gender, however, only a compelling state interest will allow the discrimination to avoid condemnation as "invidious." See Animal Legal Defense Fund, Inc. v. Fisheries & Wildlife Bd., 416 Mass. 635, 640 (1993); Lowell v. Kowalski, 380 Mass. 663, 666 (1980).
(5) Yet another possible issue concerns your assumption of a leadership role in the local organization. Canon 2(A) provides in pertinent part that "[a] judge should . . . conduct himself at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary." It is conceivable that assumption of a leadership role in an organization that discriminates on the basis of sex, even if the discrimination were both "benign" and constitutionally protected, would raise questions about your impartiality in cases involving gender discrimination. Whether Canon 2(A) applies to the question you have raised and, if it does, what impact it has are other issues the Committee would necessarily consider were it to answer that question on the merits.