This is an archived article that was published on sltrib.com in 2015, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
A Utah gay- and transgender-rights group is polling state judges to determine whether any are members of organizations that discriminate on the basis of sexual orientation or other classifications, including ethnicity, race or religion.
"Utahns deserve to know whether their justices and judges participate in discrimination," said Mark Lawrence, director of Restore Our Humanity, which is conducting the survey.
About 210 judges on the bench in city and county justice courts and district and juvenile courts statewide will be queried, along with the justices of Utah's Supreme Court and Court of Appeals, Lawrence said. ROH planned to mail the surveys Friday, which was also recognized nationally as Law Day by the American Bar Association.
The survey asks judges to return the survey to ROH by May 15 and the responses will later be posted on the group's website as a public resource.
Lawrence said he knows of no specific instances of discrimination by state judges, but believes all Utahns, particularly those in the lesbian, gay, bisexual and transgender community, should be armed with information if they find themselves standing before a judge.
"I think what we are most concerned about are people out in the rural areas," he said. "If there was an LGBT family in a rural area that wanted to complete an adoption, for example, they might want to know if they might be facing any issues."
In addition to asking judges to disclose their affiliations, the survey asks whether judges recuse themselves from cases involving those affiliates or if they regularly disclose their affiliations to those appearing before them in court. The survey also asks judges to explain why the discriminatory practices of any group or groups they belong to is not invidious.
ROH is far from the first organization wanting to know how judges feel about myriad issues, from gun rights, abortion, the death penalty, and judicial activism, Brent Johnson, general counsel for the Utah State Courts said in an email to The Salt Lake Tribune.
"We have consistently refused to facilitate those surveys," Johnson said. "Judges should not be expressing views on those types of issues and if we permit one survey the door would potentially be opened to a steady stream of surveys from organizations and individuals."
Of course every judge — like every person — holds personal opinions on important societal concerns, but they are also ethically required to set those aside and rely only on facts and law when deciding the cases before them, Johnson said.
The rules of the Utah's Code of Judicial Conduct, prohibit the judiciary from membership in some organizations, including those that appear regularly in court, are government sponsored, or political or advocacy oriented.
"That's one reason why judges often give up certain memberships when they take the bench," Johnson said.
Like many states, Utah's rules are drawn directly on guidelines for conduct drafted by the American Bar Association, which state: "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."
It's the word "invidious" that bothers, Karen Crist, who sits on the board of ROH, the original backer of Kitchen v. Herbert, the case which legalized same-sex marriage in Utah. Crist believes the word — defined by the Merriam-Webster dictionary as meaning "unpleasant and likely to cause bad feelings in other people" — is too vague and she objects to rules that allow judges to decide on their own whether an organization falls within the guidelines.
"We would like to see that word removed," she said. "The least reliable way to address whether bias or discrimination exists is to self-report. We all have beliefs. Judges are human and they will have biases."
Johnson suggests any questions about how judges should interpret the word might be answered in U.S. Supreme Court rulings which have defined invidious discrimination as anything excluding an individual from membership on the basis of the same protected categories ROH includes in its survey: race, sex, gender, religion, national origin, ethnicity or sexual orientation.
"In short, judges cannot be members of any organization that excludes on the basis of those categories," Johnson said.
Johnson contends that public confidence in the judiciary might in fact be undermined by publishing the personal beliefs of judges, because individuals would be more likely to question whether a judge can be fair.
"Public confidence is also promoted by knowing that no matter what a judge's personal beliefs may be, judges are required to and will set aside all personal beliefs and decide cases based solely on the facts and the law presented by the parties to a case," he said.