Opinion 23-147
December 14, 2023
Digest: A judge may wear a rainbow pin or flag on the judge’s personal clothing, and display like pins, flags or signs in the judge’s chambers.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(1); 100.3(B)(4)-(5); 100.3(B)(8); 100.4(A)(1)-(3); Opinions 23-133; 20-101; 19-50; 05-101.
Opinion:
The inquiring judge is a member of an association of LGBTQ+ judges. The judge asks if it is ethically permissible to (1) wear the judicial association’s pins or generic rainbow pins on the judge’s “personal clothing” and (2) display rainbow flags or LGBTQ+ pins or signs in the judge’s chambers.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s duties take precedence over all their other activities (see 22 NYCRR 100.3[A]). Thus, all extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on their capacity to act impartially as a judicial official; (2) detract from the dignity of judicial office; or (3) interfere with the performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Further, a judge must diligently discharge official duties “without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]). The prohibition includes “words or conduct” manifesting “bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” (id.). A judge must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B][1]), must avoid impermissible comment on pending or impending matters in any court of the United States or its territories (see 22 NYCRR 100.3[B][8]), and must not demonstrate a predisposition to deciding cases in a specific way (see 22 NYCRR 100.2[A]).
In Opinion 19-50, we advised that a judge may not display a rainbow flag or rainbow heart sticker “on the bench or in the courtroom.” We stated that consistent with Sections 100.3(B)(4)-(5), the courthouse and courtroom “must convey to the public that everyone who appears before the court will be treated fairly and impartially.” While we recognized the “good intentions” underlying the judge’s proposal to convey “assurances of welcome or acceptance to historically marginalized or disadvantaged groups” by displaying their symbols in the courtroom, we nevertheless concluded that “giving symbolic assurances for particular groups in the courtroom will not promote public confidence in the judiciary’s impartiality” (id.).
That opinion, however, only addressed displays in a courtroom, which we characterized as “a uniquely public place in which cases are adjudicated” (id. at fn 1). We expressly refrained from comment on similar displays in a judge’s “private chambers” or on a judge’s “personal adornment” (id.). We do so now.
1. Personal Adornment
Our court system’s mission is “to deliver equal
justice under the law and to achieve the just, fair and timely resolution of
all matters that come before the courts” (https://www.nycourts.gov/
whatsnew/mission.shtml). In turn, the court system’s Richard C. Failla
LGBTQ Commission is dedicated to promoting “equal participation and access
throughout the court system by all persons regardless of sexual orientation,
gender identity, or gender expression” (https://ww2.nycourts.gov/ip/LGBTQ/mission.shtml).
A review of the LGBTQ+ judicial association’s website suggests that its mission
is consistent with these objectives.
In our view, a judge’s decision to display on their personal clothing a pin with the judicial association’s logo or a pin with a rainbow flag in no way detracts from the dignity of judicial office (see 22 NYCRR 100.4[A][2]). Nor does such a display cast reasonable doubt on the judge’s capacity to act impartially (see 22 NYCRR 100.4[A][1]). It does not manifest bias or prejudice based on age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability or marital status, nor does it suggest a predisposition to decide cases in a specific way. In short, we can see no appearance of impropriety.
Inasmuch as displaying a rainbow pin on the judge’s personal clothing does not violate any applicable rules of ethics, we conclude it is ethically permissible (cf. Opinion 23-133 [quasi-judicial official may wear a lapel pin displaying flags of one or more nations at non-court events]).
2. Judge’s Chambers
In our view, display of rainbow flags and symbols in a courtroom or on the bench calls for a different ethical analysis than a display in a judge’s personal chambers. In contrast to a courtroom, where cases are adjudicated and there is a presumption of public access, chambers may for some purposes “be considered generic in nature,” like an office, “rather than representing a specifically judicial location” (Opinion 05-101). We have thus said judges may display photographs and other memorabilia of current or former elected officials in chambers, although the judge must “carefully consider the content, context and circumstances under which [they] are to be displayed” (Opinion 20-101).
Given our conclusion that it is ethically permissible to display a rainbow pin on the judge’s personal clothing, we likewise see no ethical prohibition on displaying rainbow pins, flags or signs in the judge’s personal chambers (cf. Opinion 23-133 [quasi-judicial official may display another sovereign nation’s flag at their residence]).