Judge W. Mitchell Nance, who sits in Barren and Metcalfe counties in Kentucky, issued an order Thursday saying he believes that allowing a "practicing homosexual" to adopt would "under no circumstance" promote the best interest of the child, he wrote in the order obtained by The Washington Post.
The judge disqualified himself from any adoption cases involving gay couples, citing judicial ethics codes requiring that judges recuse themselves whenever they have a "personal bias or prejudice" concerning a case. Nance's "conscientious objection" to the concept of gay parents adopting children constitutes such a bias, he argued.
The announcement garnered support from some conservative groups, while also spurring intense criticism from some lawyers and judicial ethics experts who viewed the blanket statement as discriminatory, and a sign that Nance is not fit to fulfill his duties as a judge. Kentucky state law permits gay couples to adopt children, and the U.S. Supreme Court ruled in 2015 that all states must allow same-sex marriage.
That ruling came in four cases consolidated as Obergefell et al v Hodges, one of which specifically involved a couple who wanted to adopt but was barred from doing so because Michigan banned same-sex marriage and adoption by unmarried couples.
Nance's recusal also drew some comparisons to the case of Rowan County Clerk Kim Davis who was jailed after she refused in the face of multiple court orders to begin issuing marriage licenses to same-sex couples, saying she couldn't issue the licenses because her name was on them, and it violated her religious beliefs. Eventually, deputies in her office began issuing licenses. Kentucky's governor and General Assembly would later remove the name of clerks from the marriage licenses.
Reached by phone Sunday night, Nance told The Post he stood by his order, "based on the law, based on my conscience," and to "minimize any disruption in the litigation," he said. He declined to comment further on the order or calls from the public for him to resign. But he gave no indication that he would be stepping down.
Nance told the Glasgow Daily Times he issued the order so there wouldn't be a lag if an adoption case was filed in his court concerning adoption by gay parents. Because Nance's court, the 43rd Circuit Court, has two divisions, the judge of the other division will hear any adoption cases affected by Nance's recusal. Gay parents seeking to adopt a child in the affected counties should not expect a legal delay as a result of Nance's decision.
"I don't have any plans to recuse myself from any so it should not affect the ability of any same sex couples to adopt in Barren or Metcalfe counties," the judge of the other division, Judge John T. Alexander, told the Glasgow Daily Times.
Charles Geyl, an Indiana University law school professor who specializes in judicial ethics, told the Louisville Courier-Journal that by issuing such an order, Nance could be violating his oath to uphold the law, "which by virtue of the equal protection clause does not tolerate discrimination on the basis of race, religion or sexual orientation," he said.
"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.
Chris Hartman, Kentucky Fairness Campaign Director, told the Glasgow Daily Times Nance's decision not to hear adoption cases for gay parents is "clear discrimination."
Yet other groups, such as The Family Foundation, a Lexington-based group that promotes "family-first conservatism," expressed their support of the judge's decision to recuse himself.
"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," spokesman Martin Cothran said in a statement on the group's Facebook page, "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."
Cothran added that he was unaware of any state law that would require a judge to place a child in a home with same-sex parents, prompting him to wonder why judges were being held to such a standard.
"When adoption agencies abandon the idea that it is in the best interest of a child to grow up with both a mother and father, people can't expect judges who do believe that to be forced to bow the knee," said Cothran. "Judges have a right of conscience like everyone else."
Lawyers told the Courier-Journal Nance should now also have to recuse himself from any legal cases involving gay people, including divorces involving a spouse coming out as gay. Nance told the newspaper he understands that gay and lesbian people would have reservations about appearing before him.
Nance, who was first assigned to family court in 2004, performs marriages, but has never been asked to marry a gay couple, he told the Glasgow Daily Times. If he were asked, Nance said he would decline to perform the marriage rights.
He told the Glasgow Daily Times he could recall being assigned to two adoption cases involving gay parents, including one from which he recused himself several years ago. About two to three months ago, Nance was assigned to a case in Metcalfe County involving a same-sex couple seeking to adopt. Nance said he ruled in favor of the parents, but decided then he should take action to recuse himself permanently from hearing such cases.
"It made the matter come to my awareness more directly, I would say," Nance told the Glasgow Daily Times. "I felt it would be more prudent to go ahead and address it," he said.
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