Digest: It is the obligation of a judge to determine whether an organization of which the judge is a member practices invidious discrimination.
Rules: 22 NYCRR 100.2(D); 1990 American Bar Association Model Code of Judicial Conduct - Canon 2C.
A judge asks whether section 100.2(D) of the Rules Governing Judicial Conduct prohibits a judge from being a member of the Masons. That provision of the Rules, which became effective January 1, 1996 states:
(D) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of age, race, creed, color, sex, sexual orientation, religion, national origin, disability or marital status. This provision does not prohibit a judge from holding membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interests to its members.
The origin of this addition to the Rules is Canon 2(C) of the 1990 American Bar Association Model Code of Judicial Conduct, which provides that “a judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” The Commentary to Canon 2(C) states, in part:
Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired. Section 2C refers to the current practices of the organization. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization’s current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex or national origin persons who would otherwise be admitted to membership.
Thus, the New York provision expands the list of prohibited categories of invidious discrimination and, at the same time, incorporates in the Rule, as grounds for exclusion from the scope of the prohibition, the Commentary reference to organizations “dedicated to the preservation of religious, ethnic or cultural values for legitimate common interest to its members,” (Commentary, Canon 2C).1 Presumably, organizations whose defining attributes are the preservation and promotion of such values are not organizations practicing discrimination that is invidious.
According to a recent survey by the American Judicature Society more than 30 States have adopted versions of Canon 2C. See Gray, “Organizations that Practice Invidious Discrimination,” at 3, 12-14 (1996) (hereinafter “Gray”). As the survey indicates, in applying provisions, judicial ethics advisory committees - of which there are 36 - have not promulgated lists of “approved” or “disapproved” groups. Rather, the focus has been on the judge’s exercise of his or her duty to determine whether an organization to which the judge belongs practices invidious discrimination (Gray, at 2).
It is the view of this Committee that in exercising that duty, a judge should begin by ascertaining, first, whether the organization excludes persons from membership on the basis of age, race, creed, color, sex, sexual orientation, religion, national origin, disability or marital status. If the organization does discriminate on such a basis, then a determination must be made by the judge as to whether the exclusion is invidious. If the exclusionary practice is reasonably related to a legitimate purpose (i.e., the “preservation of religious, ethnic, cultural or other values of legitimate common interest to its members”), membership is not prohibited. If, on the other hand, the discriminatory practice is one in which the policy of exclusion is arbitrary, and excludes persons or categories of persons solely on the basis of the characteristic in question, and by reason of such exclusion stigmatizes such persons or categories of persons as inferior, then the judge must conclude that the discrimination is invidious. Membership in such an organization is prohibited.
Such a determination, however, is not one which can readily be made by this Committee. As the Commentary to Canon 2C states “[w]hether an organization practices invidious discrimination is often a complex question.” It may also be a disputed question. Yet, the Committee is not an adjudicative body. It does not render judgments or issue decisions. Nor is it an investigative body. It has no authority to take testimony, conduct hearings or assess conflicting presentations of fact. With rare exceptions, its opinions are predicated upon and confined to the representations and materials provided by the judge in his or her inquiry. Under such circumstances, it is the judge who is in the better position to assess the relevant factors and reach a conclusion as to whether the organization practices invidious discrimination.
In light of these considerations and in the absence of any mandate for this Committee to undertake such a course of fact-finding and adjudication, the Committee, as a general rule, will decline to provide a definitive answer as to whether a particular organization practices invidious discrimination. Indeed, the impracticability of any other course is illustrated by the inquiry now before the Committee. The inquiring judge merely states the name of the organization, “the Masons” and refers to it as a “brotherhood.” No other information is provided. Thus, while the Committee is aware that the Masons is a centuries-old national and international fraternal organization, it has no basis in what has been placed before it to render an opinion under section 100.2(D). Nor, as stated above, is it equipped to undertake the kind of fair ranging investigation into the history, background, policies and internal membership of the organization that would be required. Accordingly, the Committee must decline to render an opinion.2
1Section 100.2(D) does not by its terms incorporate the Commentary reference to an “intimate, purely private organization whose membership limitations could not be constitutionally prohibited.” The absence of such a specification in section 100.2(D) does not mean that such an organization is subject to the prohibition.
2This does not mean that the Committee will refuse to render an opinion where it is clear and incontrovertible that the organization in question is intended to promote “religious, ethnic, cultural or other values of legitimate common interest to its members.” Since, the adoption of section 100.2(D) the Committee has advised that a judge may be a member of a newly-formed organization of Irish-Americans in government (Opinion 96-19), and, in another instance, stated that a judge may be an incorporator and on the board of directors of an organization of Hispanic employees in the court system (Opinion 96-98). In each instance it was abundantly evident that the creation of the organization was intended to promote ethnic and cultural values of interest to its members. Membership in such an organization is permissible.