Kentucky judge refuses to ever hear same-sex adoption cases

It will hurt children to place them with a “practicing homosexual,” he said.

CREDIT: iStockPhoto/AndreyKrav

Judge W. Mitchell Nance, a family court judge in south central Kentucky, announced last week that he will never again preside over a case involving same-sex couple adopting a child.

Acknowledging he has a personal bias against same-sex families, he disqualified himself from any such cases as a matter of judicial ethics. In an order he sent to all local lawyers, Nance declared that “as a matter of conscience,” he could think of “no circumstance” under which “the best interest of the child [would] be promoted by the adoption by a practicing homosexual.” He also said that although he performs marriages, he would decline to perform the marriage rites for a same-sex couple.

Nance did oversee a same-sex adoption case in recent months, and he ruled in favor of the parents, but he said the case made him realize he needed to avoid similar cases in the future. “It made the matter come to my awareness more directly, I would say. I felt it would be more prudent to go ahead and address it,” he told the Glasgow Daily Times.

Fortunately, these cases should experience no delays in being heard. Judge John T. Alexander, the other division judge in the circuit court where Nance serves, confirmed on Friday he’d take any cases involving same-sex adoptions that automatically bypass Nance.

Still, there’s a question of whether Nance’s sweeping recusal is, in fact, ethical. Charles Geyl, an Indiana University law school professor whose research specializes in judicial ethics, told the Louisville Courier-Journal that he may be violating his oath to uphold the law. “If he is unable to set his personal views aside and uphold the law — not just in an isolated case, but with respect to an entire class of litigant because he finds them odious — it leads me to wonder whether he is able to honor his oath,” Geyl said.

The decision certainly draws into question whether Nance can fairly arbitrate any case involving non-heterosexual litigants. If he thinks lesbian, gay, and bisexual people are unfit to marry or raise children, that bias could affect his rulings in other cases that might not directly involve child placement or marriage.

The Family Foundation of Kentucky, an anti-LGBTQ group in the state, defended Nance’s decision. “If we are going to let liberal judges write their personal biases and prejudices into law, as we have done on issues of marriage and sexuality, then, in the interest of fairness, we are going to have to allow judges with different views to at least recuse themselves from such cases,” spokesman Martin Cothran said in a statement.

Of course, whether the law protects same-sex families isn’t a political matter; the law either protects them or it doesn’t. And since it does, a judge with a different view is simply not upholding the law.

Comparisons were quickly drawn between Nance and Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples back in 2015. Davis’ lawyer, Liberty Counsel’s Mat Staver, similarly defended Nance, claiming judges have a right to “opt out of any case affected by strongly held beliefs or associations.”

Nance told the Courier-Journal he stood by his decisions. When asked if anti-capital punishment judges should follow the same reasoning to recuse themselves from death penalty cases, he said, “I really have not thought about that enough to given an intelligent answer.”

He is currently serving an eight-year term that expires January 1, 2023.

Kentucky judge refuses to ever hear same-sex adoption cases was originally published in ThinkProgress on Medium, where people are continuing the conversation by highlighting and responding to this story.