A judge in Southern Kentucky who refuses to hear adoption cases involving gay parents has violated judicial ethics rules, advocacy groups have charged.
The groups announced Tuesday that they had filed a complaint against Judge Mitchell Nance with the state Judicial Conduct Commission, which polices ethics among judges.
The complaint asks the commission to remove Nance from office.
“Judge Nance has proven he cannot be entrusted with decisions that affect his diverse constituency and their families,” Chris Hartman, director of the Fairness Campaign, said in a news release announcing the ethics complaint. “His inability to be impartial is a blight on his office and an insult to the 8,000-plus Kentucky children who need loving foster care and forever homes.”
Nance won’t comment on the complaint, a case manager in his office said.
Nance, a family court judge in Barren and Metcalfe counties, filed an order late last month saying he would no longer preside over cases in which gay parents sought to adopt a child.
The judge said he holds a “conscientious objection to the concept of adoption of a child by a practicing homosexual.”
“I cannot, as a matter of conscience, find that it’s in a child’s best interest to be adopted by a same-sex person,” Nance told CNHI News Service.
The news service said Nance’s decision came after a recent case in Metcalfe County involving same-sex prospective parents.
Nance ruled for the parents but then said he wanted to permanently recuse himself from such cases, according to the news service story.
Nance said in his original order that attorneys who want to file adoption requests involving a gay person or a same-sex couple must notify the circuit clerk’s office so another judge could be assigned.
There is another circuit judge for the two counties, John T. Alexander, who has said he will hear adoption requests involving gay people.
However, Kentucky Supreme Court Chief Justice John Minton notified Nance that that order was procedurally deficient because it applied to an entire class of cases, said Katie Shepherd, chief of staff and general counsel in Minton’s office.
Nance then proposed a new local rule that says when an adoption request is filed, the circuit clerk must notify the family court judge, who will then review it.
The rule does not say Nance will recuse himself in cases involving people who are gay, though he would presumably be able to figure it out based on the names of the prospective parents in the case of a couple.
The proposal was not signed by the other judge in the circuit, as required by court rules.
Minton is considering the rule, Shepherd said.
Nance’s decision to not preside over adoptions involving gay people has received national attention — one of the state’s latest contributions to the culture wars.
Many in Kentucky have supported him, as they did in 2015 when Rowan County Clerk Kim Davis refused to issue marriage licenses to same-sex couples because of a religious objection to same-sex marriage.
Davis spent five days in jail for defying a federal judge’s order to issue licenses based on the U.S. Supreme Court decision legalizing same-sex marriage. State legislators later changed the law to remove clerks’ names from marriage licenses, which was what Davis requested.
After Nance’s order became public, The Family Foudation of Kentucky issued a statement saying liberal judges had written their personal biases into decisions involving marriage and sexuality, so judges with different views should at least be allowed to recuse themselves from such cases.
“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 Martin Cothran, a spokesman for the group.
But the Fairness Campaign and allied groups said in their complaint that Nance has shown an inability to do his job based on a “false and demeaning stereotype” about the fitness of gay people to be parents.
The complaint included a line from the 2015 Supreme Court decision on same-sex marriage, which said all parties agreed that many same-sex couples provide loving homes to children.
The complaint also cited a brief by the American Sociological Association submitted in that landmark case saying there is a consensus among social scientists that children raised by same-sex parents fare as well as those raised by parents of the opposite sex.
“Judge Nance’s acknowledgment that he is incapable of being fair to certain individuals because of their sexual orientation and on the basis of a demonstrably false stereotype establishes that he is incapable of performing the essential duties of his office,” said William Sharp, legal director of the American Civil Liberties Union of Kentucky.
The groups allege Nance violated a rule requiring judges to uphold public confidence in the judiciary and another requiring them to perform their duties impartially and diligently.
The parties to the complaint are ACLU of Kentucky and the national organization; the Fairness Campaign; Sam Marcosson, a professor at the law school at the University of Louisville; and Lambda Legal, a New York-based organization that litigates for the civil rights of lesbian, gay, bisexual and transgender people and those with HIV.