AMERICAN BAR ASSOCIATION AND SSM: Justin Katz

...Whatever the mechanism of implementation, a country that recognizes same-sex marriages is one in which discrimination can be held as invidious in new ways. The Salvation Army already may lose its New York City contracts because it doesn't offer health benefits to unmarried domestic partners. In various cases across the country, the Boy Scouts are facing threats to both funding and land usage. Perhaps most relevant of all is the California supreme-court ruling that the mission of Catholic Charities is not sufficiently religious in nature to grant it an exemption from a law requiring employee prescription drug benefits to include contraception.

To use the language of the ABA's proposed ethics rule, the court deemed Catholic Charities insufficiently "dedicated to the preservation of religious, ethnic or legitimate cultural values" to count as a religious organization. By this measure, one can only guess where an organization that places the right to discriminate above millions of dollars in contracts would stand on the religiosity and invidiousness scales. Surely, groups that refuse to call a "marriage" a marriage will fall on the wrong side of the latter adjective. The former adjective might offer such a slight loophole as to let religious judges slip from the bench to the pew only.

The truly invidious possibility is, however, that religious organizations--and their worldview--will come to lack sympathy within the judiciary by design. If an individual judge's membership in a group raises questions about his impartiality, what is forgivably concluded from an institutional prohibition against membership? For its part, the American Bar Association has a history of bias against the traditional side of the cultural divide, and with its recent noises about religiously based healthcare organizations, that bias is of growing breadth. Recalling that the Model Code of Judicial Conduct covers discrimination on the basis of religion, judges might soon have reason to wonder whether, just to play it safe, they ought to quit the ABA, too.

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posted by Eve at 5:10 PM VOTE

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