Thursday, June 8, 2006
I thought that this op-ed of mine, which appeared in the Daily Oklahoman on Sunday, May 21, might be of interest to others at MOJ:
By a 6-3 vote, the Oklahoma Supreme Court has established the dangerous precedent of disqualifying judges because of their religious affiliations. Last month, the Court told probate judge, Larry Jones, that he cannot hear the case of Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake because the “circumstances and conditions surround[ing] the litigation” are such “that they might reasonably cast doubt and question” as to Jones’ ability to be impartial or at least they raise “the appearance of possible impropriety.”
What caused Oklahoma’s high court to question Judge Jones’ impartiality? After Timberlake lost his case and while it was on appeal, he discovered that Judge Jones had “received a Doctor of Divinity in 1993 and is a licensed Baptist minister.” Armed with this information, Timberlake asked Judge Jones to remove himself from the case. Jones declined in a five page written opinion pointing out that a) his doctorate was earned at “a non-Baptist affiliated, independent Bible college,” b) that he is licensed by “the Seventh Day Baptist Church of Texarkana, Ark.,” which “is independent and autonomous” and affiliated only with the Seventh Day Baptist General Conference, headquartered in Wisconsin,” c) that his church “has neither association with nor fellowship with the Southern Baptist Convention or those churches or members known as “Southern Baptists,” and d) he has never been “affiliated in any manner with Oklahoma Baptist Homes for Children Inc. or Trinity Baptist Church of Oklahoma, Inc.”
Despite the fact that Judge Jones has absolutely NO connection, however remote, to the parties in the case, the Oklahoma Supreme Court ordered him to step aside. As a matter of judicial ethics this is a poor decision because no reasonable person who was informed of these facts would have any basis for doubting the judge’s impartiality. The danger of this opinion, however, strikes much deeper than a run-of-the-mill poorly reasoned judicial ethics opinion.
At its heart, the Oklahoma Court seems to be saying that religious people cannot be trusted to hear and fairly decide cases involving religious entities. At a minimum, the Court seems to be suggesting that a devout Baptist of any stripe cannot sit as a judge where another entity calling itself Baptist is involved. If the United States Supreme Court applied this standard to itself, over half of those Justices would have to disqualify themselves in any case involving the Catholic Church, Catholic Charities, a Catholic Hospital, or a Catholic University.
If the Oklahoma Court fails to reverse course, zealous advocates across the state will begin to probe the religious beliefs, the religious conduct, and the religious affiliations of judges they perceive as unfriendly. Does the Oklahoma Supreme Court really want to open this Pandora’s Box? In the future, will we determine judicial qualifications to hear particular cases by the amount tithed by the judge or whether the judge taught Sunday school or served on a church council or belongs to a church that has certain moral teachings at odds with the litigant?
The Oklahoma Court’s excessively broad view of judicial disqualification in this case looks like an infringement on Judge Jones’ First Amendment right to freedom of religion. Unless the Court is willing to apply this broad standard consistently – disqualifying Rotarians if one of the parties to a case or their close family members are Rotarians, for example – then the Court appears to be imposing an unconstitutional religious test for judges. Hopefully, the Court will see the error of its ways, allowing religious and non-religious judges alike to do their jobs unless there is some reasonable basis for disqualification.
