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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