May 1, 2017; Washington Post
Kentucky is drawing national attention again for the second time in two years for its fire-and-brimstone technique at the local government level. A family court judge recently announced he will no longer hear adoption cases involving gay parents, calling his stance a “matter of conscience.”
Judge W. Mitchell Nance, who sits in two counties in Kentucky, issued an order last week saying that he believes permitting a “practicing homosexual” to adopt would not promote the best interest of the child.
Nance disqualified himself from any adoption cases involving gay couples, citing judicial ethics codes that require judges to recuse themselves whenever they have a personal bias concerning a case.
Despite the laws that are on the books at the state and national levels—Kentucky state law letting gay couples adopt children and the U.S. Supreme Court passage of same-sex marriage, by which all states must abide—the judge told the Washington Post that he stood by his order to “minimize any disruption in the litigation.”
Nance’s court has two divisions, so his recusal means families can have their cases heard by the other judge, John T. Alexander, who said he does not plan to recuse himself.
Even with his decision to step away from these specific cases, Indiana University law school professor Charles Geyh said that Nance could be violating his oath to uphold the law, which does not tolerate discrimination in any form. Geyh added, “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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Others have posed similar concerns, including University of Louisville law professor Sam Marcosson, who said, “What we have is a judge who has made a record of his inability to be a fair and impartial judge for a whole class of citizens who are entitled to have a fair and impartial judge.”
Yet Kentucky-based Family Foundation, a nonprofit that promotes “family-first conservatism,” applauds the effort. The organization provided a press release on the recusal, with spokesman Martin Cothran stating, “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 with different views to at least recuse themselves from such cases.”
Though it’s not a federal law, since May of 2016, all states allow adoption by gay parents.
Judge Nance’s recusal follows the refusal of Kim Davis, a county clerk in Kentucky, to issue marriage licenses to same-sex couples in 2015 after the U.S. Supreme Court’s Obergefell v. Hodges decision upholding the right to same-sex marriage. Davis was jailed for refusing to abide by a federal court order.
And now, Davis’s legal issues continue. Just this week, a federal appeals court revived a damages lawsuit against her, saying a lower court judge erred in finding that damages claims by a gay couple trying to marry in Kentucky became moot after a new state law last year excused clerks like Davis from having to sign marriage license forms.
Kentucky is not the only state where judges have been testing the waters with laws revolving around equality and the LGBTQ community. A judge in Wyoming was censured in March for refusing to perform same-sex marriages, and an Alabama judge was suspended in September for ordering probate judges to defy federal orders to issue marriage licenses.—Angie Wierzbicki
