A few days ago, the Nevada Supreme Court refused to intervene in a court case to correct a case of religious bigotry.
The case involves the hepatitis outbreak at Dr. Dipak Desai’s clinic. Two patients represented by attorney Gerald Gillock are suing Health Plan of Nevada that sent them to the clinic. They contend HPN, by making them go to physicians of HPN’s choosing, is responsible for the poor treatment they received there, a laudable effort.
Presiding over the case was Nevada District Judge Douglas Smith. One of the attorneys for HPN was Clark County Sen. Mark Hutchison. Both Judge Smith and Sen. Hutchison are members of the Church of Jesus Christ of Latter-day Saints.
In August, Gillock sought the removal of Smith for the case, claiming that within the church, Hutchison holds a “position of authority” over the judge. Eventually both Smith and Hutchison stepped down from the case.
Gillock offered no evidence of previous instances in other cases, of Smith being swayed in his rulings by Mormon factors. Nor did he substantiate his allegation of Hutchison’s “authority,” which a church spokesperson denied. Gillock merely speculated that in THIS case the judge might be influenced. In this case, in the absence of any evidence beyond a common religion, speculation is innuendo.
It was hard not to be reminded of 1960, when Norman Vincent Peale and other Protestant leaders said the Catholic Church had a “position of authority” over John Kennedy. In September of that year, they issued a statement claiming that the church “insists he is duty-bound to submit to its direction” and that as president, Kennedy would be under heavy pressure to “grant funds and favors” to the church. They offered no evidence. Indeed, JFK was on the record as opposing federal aid to Catholic schools. And Kennedy said:
“I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens also to be a Catholic. I do not speak for my church on public matters, and the church does not speak for me. Whatever issue may come before me as president – on birth control, divorce, censorship, gambling or any other subject – I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise. But if the time should ever come…when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.”
Smith is not a Mormon judge. He is a judge who happens to be a Mormon, and Gillock has not shown otherwise.
Gillock targeted a Mormon with his motion. How much chance would there have been of his making such a motion if Smith and Hutchison were Jews or Catholics? What other mere common interests does he consider disqualifying?
Any judge is expected to rule independently of whatever considerations exist in his or her personal life, whether it is religion, race, investments, memberships in service clubs, or preferences in music. If the judge feels unable to do so, he or she is expected to step down. If an attorney believes a judge cannot be independent, some substantiation is expected.
Nor did Judge Smith do either the public, the litigants, or the principle involved any favors by stepping down.
This is the United States of America. Freedom of religion is at stake from time to time, including in this case. A public officer like a judge should protect that principle, even if it causes him or her some professional discomfort.
But it was the Nevada Supreme Court that failed most spectacularly. On Nov. 8 when it acted on a petition to reinstate Judge Smith, it declined to get involved. If judges can be forced off cases for frivolous, insubstantial, or unsubstantiated grounds – as in this case – appeals courts like the Nevada Supreme Court should put a stop to it, particularly when such efforts pose threats to values this nation holds dear.
Dennis Myers is an award winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.