In California, several local bar associations are seeking to ostracize

the Boy Scouts by prohibiting state court judges from participating in

the organization on the ground that its ban on homosexual leaders makes

it a "hate group" akin to the KKK. San Francisco's judges have

already formally cut ties with the Scouts.

The contention that the Boy Scouts should be shunned by respectable people

literally treated as outcasts is profoundly misguided, for several reasons.

First, the Boy Scouts are an American institution a national icon. Over

3.3 million youth members, and more than 1.2 million adult volunteers,

currently participate. Generations of Americans (more than 110 million

youths since the Boy Scouts were founded in 1910) have participated in

scouting. In 1916, the U.S. Congress issued a special charter to the Boy

Scouts in recognition of their public service.

Nearly 40 million copies of "The Boy Scouts Handbook" have

been printed since 1911, making it one of the most popular books of all

time. Eight sitting U.S. senators, 13 representatives, and countless other

distinguished Americans are former Eagle Scouts. More than half of the

current Congress participated in scouting, and many still do, as adult

volunteers and leaders. It is ludicrous to depict the Boy Scouts as disreputable

or out of the mainstream.

Second, the ongoing assault on the Boy Scouts is inspired solely by an

agenda-driven and content-based disagreement with the group's core values,

and in particular with the Boy Scouts' exercise of its constitutional

right to exclude homosexual adult leaders.

Under any other circumstances, the attempt to punish and suppress a group

for its legitimate constitutional rights would be viewed as vindictive

or even oppressive. But a double standard is at work.

Throughout the 1990s, gays, atheists, and the ACLU brought a series of

highly-publicized but ultimately unsuccessful lawsuits against the Boy

Scouts. Despite losing all of these lawsuits, including the landmark U.S.

Supreme Court decision in Boy Scouts of America v. Dale, which recognized

the Boy Scouts' rights of free association and expression, liberal groups

press the fight in other quarters. These "sore losers" are on

a mission to destroy the Boy Scouts.

The latest attack on the Boy Scouts comes from the bar associations for

San Francisco, Los Angeles, and Santa Clara counties, which have petitioned

the California Supreme Court to revise the ethical rules governing California's

1,600 state court judges to prohibit them from belonging to the Boy Scouts.

If this outrageous proposal is adopted, a state judge would violate the

Code of Judicial Ethics and be subject to censure or removal from office

This is a third flaw in the latest attack on the Boy Scouts, for in 1998

the California Supreme Court presaged Dale and ruled that the Boy Scouts'

exclusion of members and leaders who do not share its moral beliefs did

not violate the state's civil rights statute, the so-called Unruh Act.

In other words, the California Supreme Court has already decided that

the Boy Scouts do not impermissibly discriminate.

Fourth, and finally, the purported justification for blacklisting the

Boy Scouts is legally baseless, bordering on frivolous. Lawyer groups

should know better. Canon 2 of the Code of Judicial Ethics provides that

"[a] judge shall not hold membership in any organization that practices

invidious discrimination on the basis of race, sex, religion, national

origin, or sexual orientation." Acknowledging that Canon 2 would

literally forbid judges to belong to religious and military organizations,

the ethics rules specifically exempt such membership, as well as "membership

in a nonprofit youth organization," in order to "accommodate

individual rights of intimate association and free expression."

The anti-Boy Scouts bar groups want to repeal the exception, which was

created to protect judges' freedom of association and expression, in order

to make the group off-limits for state court judges. The U.S. Supreme

Court has already ruled that the Boys Scouts and adult members who happen

to be judges have a constitutional right of expressive association. The

proposed blacklist would abridge that right. To even entertain blacklisting

the Boy Scouts, in the face of Dale, demonstrates an appalling contempt

for the Boy Scouts' First Amendment rights.

The California Supreme Court should emphatically reject the misguided

blacklisting proposal.

[San Diego attorney Mark S. Pulliam is a member of the board of trustees

of the Sacramento-based Pacific Legal Foundation (www.pacificlegal.org),

a public-interest law firm dedicated to limited government. This commentary

is adapted from a longer article that appears in the March 2003 issue

of the California Political Review, for which Mr. Pulliam serves as legal

editor.]