Advocacy Groups Filed Ethics Complaint in May for Refusing Adoptions to Same-Sex Couples
On October 25, 2017 Kentucky Family Court Judge W. Mitchell Nance notified Governor Matthew G. Bevin and the Commonwealth of Kentucky Judicial Conduct Commission of his resignation. In May, 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 Nance for violating Kentucky’s Code of Judicial Conduct by recusing himself from any adoption proceedings involving lesbian, gay, and bisexual people.
“Judge Nance must have seen the writing on the wall,” said Chris Hartman, Director of the Fairness Campaign. “He had proven he could not deliver the basic impartiality required by his office when it came to LGBTQ people and their families. His only possible pathway forward was resignation or removal from office. I hope this sends a message to judges across the country that if their conscience conflicts with their duty, they must leave the bench.”
“All citizens of Kentucky have the right to fair treatment before the judiciary,” said Currey Cook, Counsel and Youth in Out-of-Home Care Project Director at Lambda Legal. “LGBTQ people who seek to provide adoptive homes for children who need them, and all other LGBTQ Kentuckians, now have clarity that anti-LGBTQ bias from the bench will not be tolerated in their state.”
“Judges, more than anyone else, have a responsibility to follow the law,” said University of Louisville Law Professor Sam Marcosson. “By making it clear that he could not, or would not do that, Judge Nance demonstrated that he simply had no place on the bench. Kentucky’s justice system, and all who come before it, are better off in light of his resignation.”
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 cited his personal conviction as the reason for the order. He said that “under no circumstance would ‘… the best interest of the child … be promoted by the adoption …’ by a practicing homosexual.”
In the complaint filed in May, Lambda Legal, the American Civil Liberties Union, ACLU of Kentucky, the Fairness Campaign, and University of Louisville Law Professor Sam Marcosson argued 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 could not 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 eroded the public’s confidence in the court and demonstrated a prejudice based on sexual orientation that places a procedural burden on LGB parents that is not on other individuals. Because it was clear that he could not be fair and impartial when it comes to lesbian, gay, and bisexual people, the advocacy groups urged in the complaint that Judge Nance be removed from office.