By Gianna Huesch
There has been outrage in the US after a family court judge announced he would be recusing himself (in other words removing himself) from any future cases involving gay adoption.
Kentucky state Judge Nance stated he believed that adoption by same-sex couples could never, “under any circumstances”, be in a child’s best interests. He consequently informed all lawyers practising in his counties that “they will need to request a special judge if they have an adoption case involving gay people”.
In a country where the Supreme Court in 2015 ruled that all states must permit same-sex marriage, and in a state which allows gay couples to adopt, this has caused consternation among gay rights activists and raises questions over whether judges should be able to fulfil their duties despite any personal prejudices.
The judge justified his decision by referring to a US judicial ethics rule “that says a judge must disqualify himself when he has a personal bias or prejudice” and said his decision was “a matter of conscience”. Judge Nance is known to be highly religious and also seen to be opposed to divorce:
“Even in uncontested divorces involving no children, he makes the parties appear in court, offers them condolences on the demise of their marriage and makes them explain why it didn’t work out. Attorneys say he also asked divorce litigants where they go to church and whether they are a true believer.”
Critics have called for his resignation, and point out that given his openly stated bias, theoretically he should be recusing himself from any litigation involving same sex couple, not just adoption matters.
However, opponents of gay rights have supported him, referring to “liberal judges” who “write their personal biases and prejudices into law” and arguing that “in the interests of fairness, we are going to have to allow judges whose personal biases and prejudices are different to recuse themselves from such cases”.
But shouldn’t judges be capable of bringing an open, unbiased mind to their courts? In Australia, impartiality is a basic tenet of the judicial role and officers take an oath “to do right by all persons, without fear or favour, affection or ill-will.” Judges are not expected to be completely free of personal opinions, but they are supposed to “nevertheless be free to entertain and act upon different points of view with an open mind”, as Australian former Justice Gleeson has put it.
Australian researchers recently released findings from the Flinders University Judicial Research Project showing that 90 percent of Australian judicial officers valued impartiality as “the most important quality to bring to the bench” and indicating that Australian judges use “a range of long-honed strategies to allow them to avoid bias in their judgments” (http://www.abc.net.au/news/2016-09-29/judges-admit-to-emotion-in-court-but-say-they-avoid-bias/7885508):
“To be a judge is to be impartial. The two are synonymous, and impartiality connotes being unbiased, independent, impersonal, and without emotion. Many (judges) reiterated the importance of not bringing into the courtroom other preconceptions or other knowledge or other pre-judgments but keeping an open mind.”
If it’s suspected judges can’t bring an impartial and unprejudiced mind to a case, parties involved can apply to have them disqualified from proceedings, and the judge then decides whether to agree to be removed. This method of self-disqualification by judges has been frequently debated over the years. It’s argued that having the same judge who is assigned to hear a matter decide whether to disqualify themselves might potentially create in the community “a suspicion that the fox is guarding the hen house” (https://theconversation.com/after-heydon-and-carmody-does-australia-need-a-new-test-for-judicial-recusal-46939).
Suggested solutions for reform in this area include establishing a register of interests, but these interests would relate only to such things as, for example, disclosing shareholdings in companies, patronage of charities, or invitations to attend political gatherings. It’s not conceived to be some kind of register of personal beliefs, such as individual positions on same-sex adoption. (http://www.abc.net.au/news/2015-08-20/barns-when-judges-are-seen-as-judging-themselves/6711574). The danger of having judges recuse themselves due to personal leanings on issues is it may create a situation where parties in effect end up “judge-shopping”.
It will certainly be interesting to follow developments in the US.
Do you need legal advice on a family law issue involving a same-sex couple? We have extensive experience in same-sex family law matters and can advise you—please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct advice, please contact us to arrange a free first conference.