Judge’s Boy Scout Duties Spur Debate : Ethics: Critics say involvement with sons’ troop appears to condone anti-gay bias. Jurist claims intrusion into privacy.

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

But when the San Fernando Superior Court judge became 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 added that, for the sake of appearances, it might be best if he quit the bench.

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

For years, the California judiciary has been rocked by one of its most divisive debates ever, sparked by a proposed ethics rule that would ban judges from involvement in any group that discriminates on the basis of sexual orientation. The Boy Scouts--founded 85 years ago today--expressly bar gays, believing them at odds with the oath to be “morally straight.”

The debate spotlights the complex issue 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 gender, should be allowed to take part in groups that keep out, as the Scouts put it, “known or avowed homosexuals.”

Most of the state’s 1,500 judges side with Farrell, contending that they see no reason to forfeit their right to privacy or their 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 maintains that equal protection for gays and lesbians has become the visible civil rights issue of the ‘90s--and insists 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 handful of 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,” Lachs said, “then one is fair in assuming that you share that particular bias.”

The issue 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 and conduct within the courtroom that showed prejudice--including bias based on sexual orientation. That vote came without controversy.

Another amendment to the code would have extended 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 Court 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,” said Lachs. “What it is, is an issue of the perception of fairness.”

Another vocal proponent is Keith Wisot, a former Los Angeles Superior Court judge who is also gay. “No one would dare suggest that if the Boy Scouts discriminated on the basis of race that it would be a freedom-of-association issue,” Wisot said. “Instead, people fall back on their religious teachings and the stereotypes and bigotry they have learned from movies and dirty jokes.”

Judges voted on the issue in 1993, in a secret ballot by mail of the entire membership. The result: 745-415 against the amendment.

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

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 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 council, a 21-member panel with a majority of 15 judges, reads: “Court employees must expose and discourage discrimination wherever it exists,” a provision that seemingly takes the clerks’ responsibility well beyond that of the judges--to root out discrimination even outside the courthouse.

The code does not have binding authority on the clerks. But “it does seem that the judges are refusing to hold themselves to the same rules they’re requiring of their employees,” said Jon W. Davidson, a gay-rights activist and an attorney for the American Civil Liberties Union in Los Angeles.

The core issue is now before the state Supreme Court, which announced last 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 CJA president and Rio Hondo Municipal Court Judge Rudy Diaz.

Complicating matters even more, voters last 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. 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.

Proposition 190 also recast the Commission on Judicial Performance, which investigates judicial wrongdoing. The chairman of the new commission, Justice William Masterson of the Los Angeles-based 2nd District Court of Appeal, declined last week to comment on speculation sweeping the bench that the panel will somehow find a way to take up the issue of judge involvement with the Scouts.

What should be clear, said ACLU lawyer Davidson, who is opposing the Scouts in both cases before the Supreme Court, is that judges committed to the Scouts still have a battle on their hands.

“Even if you believed that the Boy Scouts were sufficiently private that they should be able to do what they want,” Davidson said, “when you have a public official like a judge participating (in the Scouts), it gives the judge’s authority and the judge’s imprimatur and kind of endorsement to those acts.”

Nonsense, said Farrell: “We’re not supposed to discriminate, and I think it would be wrong to discriminate against any litigant.”

He added: “In a previous era, there were people who would have said, ‘You’re not fit to be a judge if you’re homosexual.’ It’s ironic now that 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.”