Kentucky Judge Refuses Adoptions to Same-Sex Couples, Gets Hit with Ethics Complaint

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May 16, 2017

Today Lambda Legal, the American Civil Liberties Union, the ACLU of Kentucky, Kentucky’s Fairness Campaign and University of Louisville Law Professor Sam Marcosson filed a complaint against Judge W. Mitchell Nance for violating Kentucky’s Code of Judicial Conduct by recusing himself from any adoption proceedings involving lesbian, gay and bisexual people.

“Rather than displaying a fair and open mind in all adoption matters, Judge Nance blindly condemns gay and bisexual people and puts his discriminatory beliefs above the best interest of the child,” said Currey Cook, Counsel and Director, Youth in Out-of-Home Care Project, at Lambda Legal. “Lambda Legal cannot and will not stand by while this judge ignores the best interests of children in favor of stereotypes that have been thoroughly debunked by well-established social science research. We urge Kentucky’s Judicial Conduct Commission to conduct a prompt and thorough inquiry and remove him from judicial office.”

“Judge Nance’s acknowledgement 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, ACLU of Kentucky Legal Director. “While he is certainly free to hold his discriminatory beliefs, the fact that they prevent him from fairly and impartially acting as judge for all Kentuckians mandates that the Judicial Conduct Commission take swift action.”

“Judge Nance has proven he cannot be entrusted with decisions that affect his diverse constituency and their families,” said Chris Hartman, Director of the Fairness Campaign. “His inability to be impartial is blight on his office and an insult to the 8,000-plus Kentucky children who need loving foster care and forever homes. The only ethical thing for Judge Nance to do is resign the bench, but since he refuses, the necessary next step is for the Kentucky Judicial Conduct Commission to remove him.”

On April 27, 2017, Kentucky Family Court Judge W. Mitchell Nance of the 43rd Judicial Circuit Court filed an order that would require attorneys to notify the court if the adoption matter being filed involved same-sex couples or lesbian, gay or bisexual individuals, so that he could disqualify and recuse himself. Judge Nance cites his personal conviction as reason for the order. He says that “under no circumstance would ‘... the best interest of the child ... be promoted by the adoption ...’ by a practicing homosexual.”

In the complaint filed today, Lambda Legal, the American Civil Liberties Union, ACLU of Kentucky, the Fairness Campaign and University of Louisville Law Professor Sam Marcosson argue that Judge Nance’s order and subsequent letter to the Chief Justice proposing a local rule that would allow him to recuse himself for an entire class of litigants based solely on their sexual orientation violate Kentucky’s Code of Judicial Conduct in two ways: eroding public confidence in the judiciary and failing to perform judicial duties impartially and diligently.

Judge Nance cannot be fair and impartial and rule in the best interests of children when he declares an explicit bias against LGB parents.

Judge Nance’s order erodes the public’s confidence in the court and demonstrates a prejudice based on sexual orientation that places a procedural burden on LGB parents that is not on other individuals. Because it is clear that he cannot be fair and impartial when it comes to lesbian, gay and bisexual people, the advocacy groups urge in the complaint that Judge Nance be removed from office.