Judge won't hear gay adoptions because it's not in a child's 'best interest'

LOUISVILLE --- 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 begins 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.

He said in the order issued Thursday that “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.

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Gay-rights advocates said they are appalled by Nance’s order.

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 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.” 

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.

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“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.

Nance’s refusal to sit in cases involving gay adoption comes two years after Rowan County Clerk Kim 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.

Nance couldn’t be immediately reached for comment because he was on the bench. 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.

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But lawyers say he will have to disqualify himself from any litigation involving gay people, including divorces involving a spouse coming out of the closet.

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.