Judge Sotomayor is catching flack for having accepted, about one year ago, an invitation to join Belizean Grove, a small, (from one hundred and fifteen to one hundred and twenty five members), apparently intimate and rather exclusive, invitation-only organization which has only female members. According to its website, Belizean Grove is
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.
To this end, the organization invites
members [who] are highly accomplished leaders in a wide venue of fields, are dedicated to giving back to their communities, have a sense of humor and excitement about life and are willing to mentor and share connections. With this vision in mind, members are invited not only for their professional accomplishments but also for their generosity and compatibility.
According to the founder of the organization,
Ms. Stautberg, who founded the private club nine years ago, . . . the group is a response to the all-male clubs that have long fostered business connections and policy links for powerful men.
"I think we all need support in our lives," Ms. Stautberg said. "We need time to relax; we need time to think. We're all being nibbled at constantly all day, by e-mail." (emphasis added)
The principal legal question involved in this minor kerfuffle is whether membership in such organizations as the Belizean Grove violates Canon 2C of the Code of Judicial Conduct, which discourages judicial membership in organizations which "invidiously discriminate" on the basis of sex, race and national origin, unless they try to eliminate the discrimination. Obviously, the Belizean Grove discriminates on the basis of sex; men aren't invited and presumably can't join, no matter how greatly accomplished, sharing or humorous they may be. But does it discriminate invidiously?
The adverb "invidiously" presumably is not redundant, and must therefore have some meaning; otherwise it would not be there. That's why the commentary associated with Canon 2C goes on at some length trying to explain what "invidious" means in context. This 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. . . . Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. 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. (emphasis added)
The commentary associated with Canon 2C cites for guidance by analogy several Supreme Court cases in which organizations had been found discriminatory and therefore subject to adverse action under State statutes. One case involved a popular eating establishment open only to men. Another involved Rotary Clubs International, with "19,788 Rotary Clubs in 157 countries, with a total membership of about 907,750." Membership was limited to men. Another involved the United States Jaycees, with "295,000 members in 7,400 local chapters affiliated with 51 state organizations." Full membership was restricted to young men. In each case, no Constitutional right of association was found to be sufficiently infringed to outweigh State interests in eliminating discrimination on the basis of sex. A key factor in each case was that the group involved was so large as to vitiate any suggestion that "it is in fact and effect an intimate, purely private organization . . . ."