Professor Ralph Richard Banks comments on the laws protecting the rights of judges to affiliate with certain groups for The Daily Journal.

Should judges be allowed to lead their local Boy Scout troops? Or does the nonprofit group's ban on gay and lesbian adult leaders compromise a judges' ability to serve justice fairly?

That's the dilemma at the center of a proposal by the California Supreme Court's ethics advisory committee that would end two exemptions to ethics rules that bar judges from joining groups that discriminate against gays. The exemptions allow judges to be members of both military groups and nonprofit youth groups, such as the Boy Scouts, that have discriminatory membership policies.

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Stanford Law School professor R. Richard Banks said the issue raises interesting questions. He also noted that judges' protected affiliations already imply biases and said that might potentially make a judge's affiliation with the Boy Scouts a moot point.

“If I was a litigant coming before a judge, I'd be much more worried about someone who's more active in certain types of religious bodies than someone who's active in the Boy Scouts,” he said.

Banks also said that while discouraging judges' association with discriminatory or political groups is a broadly observed practice, “It's inevitable backgrounds will influence decision-making. Party, race, gender, ideology – these things matter.”