All Workers’ Compensation Administrative Law Judges must follow the California Code of Judicial Ethics. Specifically Labor Code 123.6. (a) provides that “All workers’ compensation administrative law judges employed by the administrative director shall subscribe to the Code of Judicial Ethics adopted by the Supreme Court pursuant to subdivision (m) of Section 18 of Article VI of the California Constitution for the conduct of judges and shall not otherwise, directly or indirectly, engage in conduct contrary to that code or to the commentary to the Code of Judicial Ethics.”

The Supreme Court Advisory Committee on the Code of Judicial Ethics proposes amendments to the Code of Judicial Ethics from time to time. In February 2014, the Committee published its proposal the amend canon 2C and related provisions of the code. Canon 2C prohibits a judge from holding membership in an organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation , As currently written, this canon does not bar membership in a nonprofit youth organization.

In 2003, the Supreme Court revisited the nonprofit youth organization exception after receiving requests to eliminate the exception . The Bar Association of San Francisco initiated the request, joined by the Santa Clara County Bar Association. Once the bar association’s proposal was publicized, the court received many communications from judges, lawyers, and others. Some of those responding supported elimination of the exception, while others opposed any amendment to the canon. The court ultimately decided to leave the canon intact, but added commentary to canons 2C and 3E to caution judges to be sensitive to the concerns expressed by those advocating elimination of the exception.

Now some ten years later, the Advisory Committee raises the proposal to eliminate the exception once again. The committee analyzed the exception in the context of a judge being a member of the Boy Scouts of America. The Committee commentary on the proposal reasons that until recently, the official policy of the BSA read: “While the [BSA] does not proactively inquire about the sexual orientation of employees, volunteers or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA. In May 2013, after a national council meeting, the BSA announced its decision to permit openly gay boys to participate as scouts until age 18, but to continue its bar against gay and lesbian adults as troop leaders or in other leadership positions. Because the BSA continues to discriminate on the basis of sexual orientation, the committee agreed that eliminating the exception, thereby prohibiting judges from being members of or playing a leadership role in the BSA, would enhance public confidence in the impartiality of the judiciary.”

The committee noted that the exception was developed in 1996 to accommodate judges who were members of or active in the BSA. “Effectively selecting one organization for special treatment is of particular concern to the Committee, especially in light of changes in the law in California and elsewhere prohibiting discrimination on the basis of sexual orientation. Eliminating the exception would not have any effect on a judge’s family members, who could still join or continue to be members of the BSA.”

The announcement states “The proposals have not been approved by the Supreme Court and are not intended to represent the views of the court . These proposals are circulated for comment purposes only.”

Some commentators have pointed out unintended consequences of the Committee proposal. Catherine Short, legal director of the Legal Defense Foundation wrote a letter stating “The Committee’s invitation ignores the fact that the change also encompasses other youth organizations whose membership is limited on the basis of gender, e.g., the Girl Scouts.”