Judge says he won't hear gay adoptions because it could never be in child's best interest

Echoing the case of Rowan County Clerk Kim Davis, who wouldn't issue marriage licenses to same-sex couples, a family court judge who sits in Barren and Metcalfe counties has announced he will no longer hear adoption cases involving “homosexual parties” because he believes allowing a gay person to adopt could never be in the child's best interest.

Judge W. Mitchell Nance, who starts court each day by requiring everyone to stand for the Pledge of Allegiance, said in an order this week that he would recuse himself from all adoptions involving gay people.

Nance cited a judicial ethics rule that says a judge must disqualify himself when he has a personal bias or prejudice.

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In an order issued Thursday, he said “as a matter of conscience” he believes that “under no circumstance” would “the best interest of the child be promoted by the adoption by a practicing homosexual." Kentucky state law allows gay couples to adopt, and the U.S. Supreme Court ruled in 2015 that all states must permit same-sex marriage.

Experts on judicial ethics say judges do have a duty to disqualify themselves from cases in which they are biased, 

Dan Canon, a Louisville lawyer who helped win the right of same-sex marriage in Kentucky, said: “The bottom line is if this judge can’t fulfill his duties because of his personal biases, he should resign.” Chris Hartman, director of the Fairness Campaign, said, “If he can’t do the job, he shouldn’t have the job.” 

Some experts said Nance may be violating other rules in issuing a blanket refusal to hear such cases.

"He has taken an 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," said Charles Geyh, an Indiana University law school professor whose research specializes in judicial ethics. "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."

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DePaul University law school Professor Jeffrey Shaman, who was a senior fellow at the American Judicature Society, said frequent recusal could violate a judicial canon that requires a judge to faithfully perform the duties of judicial office.

But Martin Cothran, an analyst for the Family Foundation of Kentucky, which opposed gay marriage, said in an email that “we fully support the decision of Judge Nance to recuse himself from these kinds of cases.

“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,” said Cothran, who advocated for a state constitutional amendment that banned same-sex marriage in Kentucky until it was overturned by the Supreme Court.

Mat Staver, founder of the Liberty Counsel, which represented Davis in her marriage license fight, said a judge has the right to "opt out" of any case affected by strongly held beliefs or associations."

In a phone interview, Judge Nance declined to respond to criticism of his order.

"I stand behind the law I have cited, the matter of conscience I addressed and the decision I have made."

He said he doesn't know of any gay adoptive parents and said he was unable to cite any research that shows they make less of a parent than heterosexuals.

Asked if judges who oppose capital punishment should be able to recuse themselves from death penalty cases, he said, "I really have not thought about that enough to given an intelligent answer."

He sent out his order to all lawyers who practice in his counties, saying they will need to request a special judge if they have an adoption case involving gay people.

Nance’s refusal to sit in cases involving gay adoption comes two years after Davis defied the Supreme Court’s decision in Obergefell v. Hodges, saying she couldn’t issue marriage licenses to same-sex couples because her name was on them, and it violated her religious beliefs. She was briefly jailed and eventually deputies in her office began issuing licenses. After he was elected, Gov. Matt Bevin and the General Assembly removed the name of clerks from the licenses.

Lawyers say Nance will now also have to disqualify himself from any litigation involving gay people, including divorces involving a spouse coming out of the closet. He said he understands that gays and lesbians would have reservations about appearing before him.

Canon, the Louisville lawyer, said: “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. 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.”

Lawyers say Nance is highly religious and opposed to divorce.

Even in uncontested divorces involving no children, he makes the parties appear in court, offers them condolences on the demise of their marriage and makes them explain why it didn’t work out.

Attorneys say he also asked divorce litigants where they go to church and whether they are a true believer.

Nance acknowledged that he has written a rule requiring the appearance of parties, even in uncontested divorces, and that he offers condolences to them "because something very joyful has turned out to be a matter of grief."

He said he may have asked litigants about their church and religious beliefs, but he said he doesn't do it as a matter of routine.

Nance, who received his undergraduate degree from Harvard University and law degree from the University of Louisville, was re-elected without opposition in 2014, winning an eight-year term that expires Jan. 1, 2023.

Reporter Andrew Wolfson can be reached at 502-582-7189 or awolfson@courier-journal.com