Kentucky family court judge W. Mitchell Nance has announced that he will no longer hear adoption cases involving “homosexual parties” due to his belief that “under no circumstance” would “the best interest of the child be promoted by the adoption by a practicing homosexual.” According to USA Today, Judge Nance cited a judicial ethics rule requiring him to recuse himself from any case where the judge has a personal bias or prejudice. Kentucky state law allows gay couples to adopt; for the record, the law specifically states that adoptions must be in the “best interest of the child.”
Gay-rights advocates have expressed their dismay, stating that they believe that Judge Nance should resign if he is incapable of fulfilling his duties.
“The bottom line is if this judge can’t fulfill his duties because of his personal biases, he should resign,” said Dan Canon, a Louisville lawyer who was instrumental in winning the right to same-sex marriage in Kentucky.
“If he can’t do the job, he shouldn’t have the job,” added Chris Hartman, director of the Fairness Campaign.
And while it might seem reasonable that the judge recuse himself from such cases, it means that any gay couple looking to adopt in Kentucky will have to request a special judge; Judge Nance expressed his hope that this would result in cases by gay parents not being filed in his court and “avoid long delays,” and issued a memo to all lawyers in his jurisdiction that they would need to request a special judge for same-sex cases.
“It’s obviously better that the judge recuse himself from these cases rather than potentially wreck the lives of children who desperately need loving, adoptive parents,” said Canon.
“But it’s disturbing that this judge would cast aside everything we know about adoptions by same-sex couples to reach the patently false conclusion that such adoptions are not in the best interests of a child.”
According to PinkNews, Circuit Judge John T. Alexander said that he would take any case impacted by Judge Nance’s order.
Meanwhile, anti-gay-rights groups in Kentucky have applauded the move. Martin Cothran of the Family Foundation of Kentucky said that they “fully support” the judge’s decision. Cothran previously advocated for a state constitutional amendment banning same-sex marriage.
“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 whose personal biases and prejudices are different to recuse themselves from such cases.”
Kentucky lawyers have responded that, under the circumstances, they will expect Judge Nance to recuse himself from any case involving gay people, including divorce (which the judge is also allegedly opposed to) involving a spouse coming out of the closet. They describe Nance as highly religious and note that he begins each day by requiring the court to stand for the Pledge of Allegiance. He also allegedly requires couples in uncontested divorces with no children to appear in court, offers condolences for the end of their marriage, and requires them to describe the reasons why their marriage failed, despite any legal precedent requiring it. Moreover, he also allegedly asks divorcing couples where they go to church, and if they are true believers.
Kentucky has been seen as notably hostile to same-sex couples after Rowan County Clerk Kim Davis dominated headlines for weeks over her refusal to issue marriage licenses to same-sex couples, following the Supreme Court’s decision in Obergefell v. Hodges making same-sex marriage a legal right across the nation, an act for which she recently avoided paying legal fees.
Her stand over same-sex marriage was also propped up by anti-gay-rights groups in Kentucky, particularly the Liberty Counsel (labeled an anti-gay hate group by the Southern Poverty Law Center) who provided her legal counsel.
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