The Judicial Ethics Forum (JEF)

The controversy about Supreme Court nominee Judge Sonia Sotomayor’s membership in several organizations prompts a review of what the code of judicial conduct does and does not prohibit.  Canon 2C of the Code of Conduct for U.S. Judges provides:  “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  As the commentary to Canon 2C explains, “membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired.”

Not all discrimination is “invidious” discrimination, however, and not all groups are organizations subject to Canon 2C.  As the 1984 ABA report on which the original version of Canon 2C was based explained, the crux is discrimination “on a basis that is odious and in historical context was a stigma or badge of inferiority.”

As an example of organizations that do not practice invidious discrimination, commentary to Canon 2C cites organizations “dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members.”  The Indiana Judicial Qualifications Commission, in an advisory opinion, stated:  “Some groups exist for the legitimate purpose of the perpetuation or celebration of cultures, historical events, and ethnic or religious identities and traditions.  They tend to be inclusive of an entire group, rather than exclusive of certain groups. . . .  Their membership limitations, rather than unfair or stigmatizing, are secondary to but inextricable from that which is being legitimately preserved or celebrated.”  Indiana Advisory Opinion 1-94.  As examples of groups with permissible membership limitations, the Indiana Commission identified the Daughters of the American Revolution, the Knights of Columbus, and the Sons of Italy, while the ABA report cited a Jewish Community Center or Polish-American Society.

The Arizona Judicial Ethics Advisory Committee stated that the victims of invidious discrimination were themselves justified in forming discriminatory organizations only to compensate for disadvantages currently suffered as a result of previous discrimination.  Arizona Advisory Opinion 94-13.  The committee stated that discrimination, for example, by a women’s organization, was legitimate if an organization could demonstrate that:  (1) there is a sex-based disadvantage suffered by its membership; (2) the intention in forming or continuing the organization is to compensate for this disadvantage; (3) the organization’s programs and policies are not based upon and do not perpetuate archaic and stereotypical notions of the abilities or roles of the sexes; and (4) the organization’s single-sex policy and programs directly and substantially help its members compensate for the previous disadvantage.

Canon 2C creates an exemption for groups that are so intimate and private that the U.S. Constitution protects them from government interference.  The Indiana Commission listed a number of factors that distinguish “organizations” from protected groups:  a more or less constant membership; professional, social, recreational, charitable, educational, or civic purposes; selectivity in membership; membership controlled by ballot or some other type of approval; by-laws or other written rules; dues, assessments, or other support; size; advertising or publicity; whether the organization has subjected itself to governmental regulation, such as a liquor license; whether it sells retail goods or services; whether it offers its services or facilities to non-members; and whether it has developed a public identity through civic or charitable activities or participation in public events.  The Commission identified mother-daughter banquets, men’s support groups, college fraternity and sorority alumni groups, girls’ basketball, or single sex fitness facilities as groups that are exempt from Canon 2C and may not even constitute “organizations” within the meaning of the prohibition.

The Committee on Codes of Conduct of the U.S. Judicial Conference (the advisory committee for federal judges) has not issued an opinion interpreting Canon 2C, but it has two opinions on membership in organizations that advance policy positions.  See U.S. Advisory Opinion 40 (1998); U.S. Advisory Opinion 82 (1998).