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Proposal would bar judges from groups with anti-gay bias

St. Louis Post-Dispatch
August 7, 2004
Associated Press - Gina Holland

ATLANTA - The American Bar Association also considers new ethics rules on gifts to judges and their involvement in fund raisers.

Judges are on the front line of battles over legal rights for same sex couples and should never belong to an organization that discriminates against gays, supporters of a proposed change to American Bar Association ethics rules argued Friday.

Judges already are prohibited from joining clubs that discriminate based on race or sex. An ABA panel is debating whether to make groups that discriminate against gays off limits as well.

The ABA, the nation's largest lawyers group with more than 400,000 members, writes conduct rules for judges and lawyers. States and federal courts generally adopt them, with some changes.

It is not known how many judges participate in groups such as the Boy Scouts that have policies against hiring gays or having homosexual leaders, or some veterans groups that restrict membership to heterosexuals.

The ABA held an all day public hearing Friday on proposed judicial ethics changes during the association's summer meeting, which runs through Tuesday. Rules on gifts judges may accept and judges' involvement in fund raisers also may be changed. The ABA is not expected to vote on any changes until next year. It would be the first overhaul of the rules in more than a decade, and any changes eventually could affect thousands of judges.

Meanwhile, a report by the Government Accountability Office, Congress' auditing arm, shows that some judges request and receive permission to withhold information about gifts from the public on the premise that their safety could be compromised. The ABA ethics panel is considering redefining a gift, possibly to include paid trips to seminars.

"It's critical for the public to know who's wining and dining the federal judges," said Douglas Kendall, executive director of the Community Rights Counsel, who appeared before the panel.

The proposed change to membership in groups that discriminate against gays is energized in part by the Supreme Court's ruling a year ago that states cannot "demean" same sex couples by punishing their sexual conduct.

That decision has spawned multiple gay rights cases around the country, including Massachusetts' ruling to legalize gay marriage. Most recently, a judge ruled this week that a same sex marriage ban violates Washington state's constitution.

The leader of the ABA commission, Phoenix lawyer Mark Harrison, said that without getting into a political debate about the rights of gay couples to marry, the panel wants to "make sure that judges aren't viewed as bigots."

New York University ethics expert Stephen Gillers said gay people involved in court cases "should not be asked to trust the fairness of a judge" who belongs to a discriminatory club.

But Frederic Smalkin, a senior federal judge who teaches law at the University of Maryland, said: "Judges are human beings too. They should be allowed to exercise their First Amendment rights of free association."

Smalkin said it could be difficult to define what organizations are acceptable. "Does that mean a judge could not belong to the Reserves or National Guard?" he asked.

Brian Fahling, an attorney with the Mississippi based American Family Association, said judges with religious objections to homosexuality should not be forced to follow such a rule.


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