Anti-LGTBQ judge did right thing, but it wasn’t enough

Circuit Court Judge Mitchell Nance recused himself last week from hearing adoption cases involving same-sex couples. He did the right thing, and he should be commended for so much.

But that is not enough.

It is also important that he step down because he can no longer do his job, and continuing to pretend otherwise further erodes the stability of the institution he has sworn to serve.

Nance, a Family Court judge for Barren and Metcalfe counties, said that “as a matter of conscience” he could not fairly rule in cases involving “homosexual parties.” Kentucky law and the judicial code of conduct require judges recuse themselves in cases in which they have “personal bias or prejudice” or “in which his impartiality might reasonably be questioned.”

Recusals typically are reserved for when a judge has a personal relationship with those involved in the case, or another conflict of interest exists, such as a financial benefit in the outcome. Recusal was never intended for situations in which a judge realized he is unable to follow the law… like discriminating against gays.

But Nance deserves credit for his candor. It is no small feat to recognize your prejudices, let alone publicly admitting to them, while knowing enormous scrutiny is sure to follow.

We do not tolerate homophobes, but at least Nance acted before allowing his bias to destroy people’s lives.

Nance was elected to the bench in 2014, and a year later the U.S. Supreme Court ruled that gay marriage is legal. For Nance, in particular, this meant he swore an oath to uphold a different law of the land — rather, the land shifted beneath him.

Of course, this is not a defensible excuse for overlooking the law. Laws change often beneath judges. Adapting to these changing terrains are usually effortless exercises, although some changes may present personal conflicts. That is why every judge swears an oath to uphold the law. The oath ensures that public institutions don’t bend to any one person’s influence.

Nance’s story drew comparisons to that of Rowan County Clerk Kim Davis… and for good reason. Davis violated her oath of office and abdicated the duties of her office when she refused to issue marriage licenses to gay couples — much the way Nance is recusing himself in all adoption cases involving gay couples.

The difference is that Gov. Matt Bevin and lawmakers then changed the system to accommodate her.

After U.S. District Judge David L. Bunning ordered Davis to resume issuing licenses, Bevin issued an executive order to allow clerks to issue licenses without their names, thereby allowing Davis to preserve her conscience. Bevin and Davis’ supporters will wrongly remember them as righteous defenders of freedom, furthering the delusion that they are above the law.

Nance should know better. He should know that his conscience does not extend beyond the requirements of his job or the oath he took. See, as far as the state is concerned judges have no business knowing whether you are a man, woman, black, white, Christian, Muslim or any combination thereof (except when those details are relevant, such as with hate crimes).

For adoption, the law says sexual orientation is irrelevant — everyone is equal.

Judges should be able to function behind a complete veil. Picture Lady Justice — you know, the blindfolded woman presenting the balanced scale of justice.

So, if a judge, including Nance, has to know he has a man and a woman before him in court, he can’t do his job. To pretend otherwise, and to expect the system to accommodate his personal moral structure, weakens the foundation of the institution Nance swore to uphold – just like in the Davis case.

Bunning, in writing his Davis decision, said it perfectly: “Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions.”

If we expect our public institutions to adjust to the beliefs of individuals who swore an oath to serve government, then we are accepting a society in which the law becomes a cobweb of personal convictions; the cultural-political divide is defined by blues and reds; and our concept of equal justice changes at the county line.

Judge Nance needs to resign and end his attack on the institution he serves.