Kentucky Judge W. Mitchell Nance has written an order recusing himself from hearing any more adoption cases involving same-sex couples. In his order, obtained by the Washington Post, he explained that he believes “allowing a ‘practicing homosexual’” to adopt would “under no circumstance” promote the best interest of the child. He called his order a “matter of conscience.”
Nance is a family court judge in the 43rd Circuit Court in Barren and Metcalfe counties in southwestern Kentucky. Kentucky law allows judges to recuse themselves when they have “personal bias or prejudice” involving the case.
Conservative groups are lining up to defend the judge and liberal groups are criticizing him.
I don’t get that.
We all have opinions and prejudices. More judges should recuse themselves from cases when they can’t hear those cases in an unbiased way.
This judge recognized his view of practicing homosexuals is not the same as his view of practicing heterosexuals. He probably doesn’t have a very good view of homosexuals who don’t need more practice, either.
More judges should do exactly what he did. I’ve never heard a judge recuse himself from a case involving a practicing black person — is that how Nance would refer to African-Americans? — or a practicing woman. Yet black people, whether practicing or not, are arrested and prosecuted more often and given harsher sentences for the same crime than practicing white folks. Yet practicing bigots who sit on the bench normally don’t recognize their own prejudices and recuse themselves.
Cases of sexual harassment, gender discrimination and even rape are regularly heard by judges who should recuse themselves. The rape victim is often allowed to be treated as the criminal. The practicing woman is often denied equal pay. The harasser can be treated in court as if he has a right to sexual favors.
Since marriage equality gobsmacked Kentucky in the face, Nance has been assigned just two same-sex adoption cases. In the last one, he granted the adoption petition. Two cases in two years isn’t going to put a major burden on the other judge in Nance’s circuit.
So I applaud a judge who recognizes his own biases and recuses himself from hearing a case where he may not give a fair ruling.
So how does this square with my opinion of another Kentucky public servant? Rowan County Clerk Kim Davis was allowed to keep her job after refusing to issue marriage licenses to same-sex couples.
Here’s the difference. Davis not only recused herself, but recused her entire office. Not until she went to jail did she allow someone else in her office to do the job she was elected to do.
So kudos to Judge Nance. Not everyone shares our opinions on everything and I applaud a judge who recognizes his own prejudices and recuses himself rather than rule unfairly.