Boy Scout Issue Splits State’s Judges : Ethics: A majority say jurists’ private involvement with the group, which does not admit gays, is a personal choice. Others declare it improper.

When Judge John Farrell’s two sons wanted to join the Boy Scouts, he told them to go right ahead.

But when Farrell became personally involved with the troop--car-pooling kids on outings, volunteering to chaperon a hike--he was told by other judges that he was being unethical. When he persisted, his critics suggested that for the sake of appearances it might be best if he quit the bench. After all, they noted, the Boy Scouts has a discriminatory policy: It bars gays.

“This definition of ethics confounds common sense,” said Farrell, a San Fernando Superior Court judge, calling it the product of “the politically correct group who just want to regulate people’s personal lives.”

Farrell’s crucible is an example of one of the most divisive debates ever to rock the California judiciary. At issue is a proposed new rule of judicial ethics that would ban judges from involvement in any group that discriminates on the basis of sexual orientation. The Boy Scouts--which celebrates its 85th anniversary today--bars gays because it believes them to be at odds with its oath to be “morally straight.”

The judicial ethics debate spotlights the complex question of what conduct is appropriate for public figures in their private lives--whether judges, who may not join private clubs that deny membership on the basis of race, religion or sex, should be allowed to take part in groups that keep out, as the Scouts put it, “known or avowed homosexuals.”

A majority of the state’s 1,500 judges side with Farrell, contending that they see no reason to forfeit their right of privacy or of freedom to associate with whomever they choose.

“I’m not trying to tell anybody they’re doing anything wrong--and I don’t want somebody to tell me I’m doing something wrong, that there’s a perfectly legal organization I can’t belong to,” Farrell said.

A minority maintain that equal protection for gays and lesbians has become the visible civil rights issue of the ‘90s--and insist that it creates the appearance of impropriety for a judge to be involved in any group that discriminates openly.

“It’s an old axiom that birds of a feather flock together,” said Los Angeles Superior Court Judge Stephen Lachs, one of a few openly gay judges in California. “If you belong to an organization that discriminates against gay men and lesbians and if you belong to an organization that condemns gay men and lesbians, then one is fair in assuming that you share that particular bias.”

The issue first surfaced in 1992 when proposed amendments to the state’s Code of Judicial Conduct were offered at the annual meeting of the California Judges’ Assn., the voluntary professional group of the state’s trial and appeals judges. The code, while not law itself, is binding on the state’s judges, and violation can lead to discipline.

The judges voted to outlaw words or conduct within the courtroom that showed prejudice--including bias based on sexual orientation. That vote came without controversy.

Then came the amendment to extend the rule to a judge’s out-of-court activities.

Proponents, such as Lachs and Santa Monica Superior Court Judge David Rothman, an expert on judicial ethics, noted that state judges already were prohibited from belonging to clubs that discriminate by race, gender, religion or national origin.

But practically speaking, as proponents and opponents pointed out, the amendment targeted the Boy Scouts.

Farrell, in an interview last week, called that amendment “an entirely new level of intrusion into a judge’s life.”

“How,” he asked, “can it be bad to be in an organization that does good?”

Said Tulare County Municipal Judge Glade F. Roper, who has been involved in the Scouts since he was a boy and whose two sons are Scouts: “It really is not a sexuality issue. It’s a question of: ‘Can I think a certain way, and in my own home and my own circle of people?’ ”

For Lachs, the answer is simple: “Go ahead, participate in the Boy Scouts, stay in it,” he said. “But resign your judgeship.”

“It is not an issue of political correctness,” Lachs said. “What it is, is an issue of the perception of fairness.”

Judges voted on the out-of-court-activities amendment in 1993, in a secret ballot by mail involving the entire membership of the judges association. It lost by a vote of 745 to 415.

The result was different when the issue involved the conduct of court clerks.

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Last year, the Judicial Council, the policy-making arm of the state court system, approved a code of ethical behavior for clerks at all state courts. Tenet 10 of the code commits clerks to “repudiate any act of discrimination” based on race, gender, age, religion, national origin, language, appearance or sexual orientation.

An accompanying “guideline” also approved by the Judicial Council, a 21-member panel with a majority of 15 judges, reads: “Court employees must expose and discourage discrimination wherever it exists.”

The state Supreme Court announced in June that it would decide whether the Boy Scouts--a nonprofit charity--can legally exclude gays under the state’s civil rights law, the Unruh Act, which targets “business establishments.”

If Scout policy on gays violates the Unruh Act, then it would clearly be unethical for a judge to belong, said the California Judges Assn. president, Rio Hondo Municipal Judge Rudy Diaz. There is hope among judges who lost the battle for the proposed amendment that the high court itself will take up the ethics issue, no matter how it rules in the court cases involving the Scouts.

Complicating matters even more, voters in November approved Proposition 190, a judicial reform initiative that took the authority to write the Code of Judicial Conduct away from the judges association and gave it to the Supreme Court.

The irony of the debate, Judge Farrell said, is that “in a previous era, there were people who would have said, ‘You’re not fit to be a judge if you’re homosexual.’ . . . Now some homosexual judges are saying, ‘You’re not fit to be a judge if you’re involved in the Boy Scouts.’

“It seems to me it’s two sides of the same coin--to pry into people’s lives and dictate what they do in the privacy of their own homes.”