Judges and "Invidious" Discrimination

In response to John's post last week on Sotomayor and the Belizean Grove, I posted a comment suggesting that maybe she was right to claim that resignation was not required.  The 2007 version of the Model Code of Judicial Conduct has a provision on discriminatory organizations which states that "[a] judge shall not hold membership in any organization that practices *invidious* discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation." CJC, Rule 3.6(A).  Comment [2] to Rule 3.6 says that whether an organization practices invidious discrimination depends on, inter alia, "whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members ..."  In my view, the text of this rule differentiates between invidious and what might be called remedial discrimination.  A golf club that excludes African-Americans or Jews practices invidious discrimination, and a judge may not belong to it.  On the other hand, a civil rights organization -- even one limited to women, Latina woman, etc. -- does not practice invidious discrimination.  Sotomayor would not be required by the CJC to quit the organization, although it might be a political distraction if she didn't.  
 
In response, John and I had the following exchange off-line, and thought it would be useful to hear from knowledgeable readers.  Which of us is right?
 
JS:  On the Belizean Grove, perhaps my utter certainty is misplaced.  But note a few things.  First, it’s self-consciously a group of “movers and shakers” to network with each other.  It’s not the “Friendly Daughters of Puerto Rico” that meets twice a year for a potluck and cultural fair. Second, they expressly claim that they are a parallel to the Bohemian Grove.  To me, that’s a kiss of death both legally and realistically.  I’m sure you’re generally familiar with the Bohemian Grove, but being out here in Northern California and having talked to people who attend, that to me is the epitome of an exclusive, elitist club that judges can no longer belong to.  (If, however, judges are allowed to belong to the Bohemian Grove, then I really have egg on my face.)  The only way to negate their express desire to be a Bohemian Grove is to say, in a horribly patronizing way, “you’re no Bohemian Grove!”  Third, did you read her “defense”?  It was so telling to me.  She said that the club had not acted with discriminatory intent because to her knowledge, no men had applied yet.  Once you hear that kind of conditional defense you just know that she is inching for the exit.  You also know that she had been well counseled on what the standard was.  By the way, she didn’t even try the “we’re just a cultural/educational affinity group” defense.

But if there is a lot of case law out there showing that the Belizean Groves and Bohemian Groves of the world are in the safe category, I’d be open to hearing that.  It’s just that my understanding of the dividing line leaves the Grove way over the line.

BW:  Yes, it certainly sounds like Sotomayor wasn't particularly committed to defending her membership on the merits.  I don't know much about Bohemian Grove -- it's one of those clubs, like Skull and Bones at Yale, that I've heard about, but know only by rumor and reputation.  From what I know about Belizean Grove, though, the fact that it's modeled on Bohemian Grove doesn't mean it's invidiously discriminatory.  I may not have made this very clear in my comment, but I would distinguish between remedial and invidious discrimination on the basis of whatever (race, sex, etc.).  I know this distinction is controversial, that advocates of a color-blind society argue that discrimination is discrimination, and the Supreme Court has rejected that distinction (in Croson, I think), but the ABA is presumably free to recognize that distinction if it chooses to do so.  Thus, even if men had applied to Belizean and had been rejected, I would think Sotomayor has a defense under the Code, even if a male judge wouldn't have a defense if he were a member of Bohemian. 

JS:  I see the distinction you’re driving at, but remedial/invidious is not at all the distinction that I understand governs the rule.  Clubs for successful movers and shakers to do professional networking with each other are over the line for judges if they limit membership by gender or race.  But maybe I need to revisit my understanding.  (I cover this in class when a federal judge, who’s an expert on judicial ethics, comes and discusses this issue and others.  Maybe I’ve misunderstood him, but I don’t think so.)

Btw, you used the example of the NAACP.  White people can belong to that.  I don’t know why that’s a relevant comparison.  
 
BW:  To my mind, the invidiousness question goes to the purpose and activities of the organization, not the criteria for the selection of members, so the fact that whites can join the NAACP isn't dispositive -- what matters is that the organization seeks racial equality.  Belizean Grove does, too, and maybe so does Bohemian, or at least it doesn't practice invidious discrimination in the relevant sense.  My understanding is that the core concern of this rule is something like belonging to a country club that excludes blacks or Jews.  There are two ways to define that club -- as "discriminating" and as "invidiously discriminating" and I'd argue on the canon of construction (whatever it's called) that one should avoid rendering words superfluous that the word "invidious" does all the work.  Anyway, I'm not arguing from a bunch of cases -- I honestly don’t know what the law is here, but am going off the text of the rule only.  
 
JS:   Comment [2] to 3.6 seems to me to reflect the line drawing I am getting at.  If the group excludes men, but is the “Friendly Daughters of Puerto Rico,” and is not geared toward commerce and mercenary career-building, but rather is geared to preservation of a cultural heritage, then a judge can belong even though the group excludes men and non-Puerto Ricans.  If it’s a professional networking group for the elite movers and shakers — the best, brightest, and most ambitious — and if it says “no women” or “no men” or “asians only” then a judge cannot belong under 3.6.  In other words, it’s not invidious to exclude on gender or race if it’s educational and cultural-preservation stuff.  But it is invidious to exclude on race or gender when the purpose is commercial, career-networking, etc.

To me, it’s very clear that the Belizean Grove is a club of the latter type — because they say so themselves, because they directly compare themselves to perhaps the epitome of such a club (Bohemian), and because it “walks and quacks” like such a club.  As for the “invidious” discrimination, notice how she defended her membership as she was quitting: she didn’t invoke the distinction you want to invoke.  She said that her membership was not improper because to her personal knowledge no man had applied and been rejected.  The implicature of her comment, which I agree with, is that if the club does exclude men qua men then they’re on the wrong side of the 3.6 line.  I don’t think anyone, let alone the proudly all-woman Belizean Grove, doubts that men can’t join.  Her comment was face saving, but it does confirm my reading of where the line is drawn.

Btw, here is what their own website says, “Having observed the power of the Bohemian Grove, a 130-year-old, elite old boys' network of former Presidents, businessmen, military, musicians, academics, and non-profit leaders, and realizing that women didn't have a similar organization, Susan Stautberg and 26 other founding members created the Belizean Grove, a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.”  That nails it, right?