A publication of the Kentucky Center for Public Service Journalism

Commentary: Constitutional protection for conscience should also extend to the judiciary

By Richard Nelson
Special to KyForward

Does a judge have a right to his conscience? That’s the question many are asking since a Glasgow Family Court Judge recused himself in cases regarding the placement of children into the custody of homosexual parents.

Judge Mitchell Nance said that “as a matter of conscience” he believes that “under no circumstance” would “the best interest of the child be promoted by the adoption by a practicing homosexual.” Nance relied on a judicial ethics rule requiring judges to disqualify themselves if they have a personal bias or prejudice.

Nance has received intense criticism even though Judge John T. Alexander agreed to hear any cases that Nance recuses himself from. Dan Canon, the Louisville lawyer who helped overturn Kentucky’s man/woman marriage law called for Nance’s resignation.  Chris Hartman, director of the Fairness Campaign, told the Glasgow Daily Times “If he can’t do the job, he shouldn’t have the job.”

Hartman said the judge’s actions are “the sort of tinder that ignites fire for a fairness ordinance,” a reference to his organization’s grassroots efforts to impede LGBT marginalization by including sexual orientation and gender identity (SOGI) as protected classes in local ordinances.  Such an ordinance wouldn’t address this case, but while Hartman works to protect LGBT rights to employment he openly threatens the employment of another with differing convictions.

Irony anyone?

Nance is doing something unusual in that he is putting his conscience above the prevailing cultural currents defining tolerance and fairness. Some critics fueled by outrage may accuse Nance of bigotry couched in conscience claims, but is it bigoted for him to perform his duties according the moral framework he believes best for children and families? 

A generation ago, there was societal consensus on marriage and family and boundaries of human sexuality. This has radically changed mostly through the courts. Now judges like Nance are left to navigate the new moral and sociological terrain.

Conscience — the internal sense of the rightness or wrongness of a matter – has been recognized as a fundamental right and interwoven in the political DNA of our citizenry. It’s so important that Kentucky’s political leaders enshrined it in the Kentucky Bill of Rights:”No human authority shall, in any case whatever, control or interfere with the rights of conscience.”

Which leads us to ask whether constitutionally-protected conscience measures extend to judges or are they just for everybody else?

By all indications, Nance is a man of deep religious conviction, devoted to the well-being of his community and of the children whose future he may play a role in. He’s served as a Family Court Judge since 2004 and his service, moral character and judicial competency have not been questioned until now.

Fifty years ago and one day before Nance made his announcement, another Kentucky son appealed to conscience. Three-time world heavyweight boxing champ Muhammad Ali refused to be inducted into the Army due to his religious beliefs as a conscientious objector.  This led to a hefty fine and five-year prison sentence which was eventually overturned by the U.S. Supreme Court, but not without great cost.  Ali was stripped of his title and sidelined for four years.

Nance is in the fight of his professional career over conscience. But if he’d roll back the tape and take a front seat to Ali’s life, he might see that his greatest legacy is that there are more important things worth fighting for than just a heavyweight belt.

Richard Nelson is the executive director of the Commonwealth Policy Center, a Kentucky-based nonpartisan, public policy organization. He resides in Cadiz with his wife and children.

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One Comment

  1. Mark Nolan says:

    The Commonwealth Policy Center is clearly not non-partisan, and the recent opinion pieces which have appeared in Kentucky Forward this year are highly biased, highly partisan and poorly reasoned.

    Stripped of Mr. Nelson’s rhetoric, this particular article questions whether judges should be allowed to ignore the law if they disagree with it. The answer any competent jurist will provide is a resounding “NO!” Judge Nance correctly recused himself from cases where his bias made it impossible for him to properly follow established law. A judge with ethics could and should do no less.

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