Judge’s Refusal to Hear Cases for ‘Practicing Homosexuals’ Is Tested for the First Time and Fails


'We Have Every Reason to Suspect That You Might Not Extend the Law Fairly'

A Barren County, Kentucky family court judge's announcement he is refusing to hear adoption cases involving any "practicing homosexual" or "homosexual parties" because of his religious beliefs has predictably led to an unequal application of justice, for a transgender man.

Judge W. Mitchell Nance last month informed area attorneys they should look for another judge if they are representing gay people or same-sex couples in adoption cases because he believes it would not be in the "best interests of the child" to allow them to be parents. He also cited his religious beliefs as a reason.

Over the past week an attorney for a transgender man seeking a domestic violence order of protection against a parent was assigned to Judge Nance's court. Logically, the man's attorney was forced to request Judge Nance's recusal, citing his bias against LGBT people.

The attorney reminded Judge Nance, "you pre-emptively recused yourself from any case involving an adoption by what you refer to as a ‘practicing homosexual’ party or parties,” Kentucky's Glasgow Daily Times reports. “Obviously, gay people come before you in other types of cases as well. Transgender people come before you in other types of cases as well. The bias that you’ve acknowledged in that order, I believe, impacts the other cases that you preside over as well.”

“Under the order that you entered, you objected to granting nonstraight people their rights under the law to adopt children,” the attorney continued. “You will not hear their cases.”

The attorney noted, "we have every reason to suspect that you might not extend the law fairly or give [the petitioner] a fair shake when he is appearing to you today as a victim of domestic violence."

"I want to connect the dots a little bit here," the attorney said, continuing the argument. "You can’t say you don’t have bias against trans people because your order just says you have bias against practicing homosexuals. Here in this case, I would suspect that Your Honor would probably view my client who is legally named [as a female] as a practicing homosexual, because he is dating a woman,” the attorney concluded.

Judge Nance agreed to recuse himself from the case, but the one judge who has offered to take cases he refuses was not available that day.

And that's a major problem. LGBT people have every right to be treated equally and offered equal protection. This man was not.

Fortunately, the plaintiff already had an emergency order of protection, and Nance extended it until the alternate judge had time in his schedule to hear the case.

The Glasgow Daily Times, the first to report this development, notes this is the first time Judge Nance's refusal has been tested.

Judge John T. Alexander, the alternate judge, said that in this case it "worked out," and that he was able to fit the hearing into his schedule.

"I would have to address any other matters [Nance] is disqualified from hearing on a case-by-case basis," Judge Alexander says. "Whether I hear any such matters will be dictated by my caseload, my schedule and other logistical concerns."

That's not equal justice under the law. That's LGBT last, and that unconstitutional. Judge Alexander should know better. It didn't "work out."

The Glasgow Daily Times also notes Judge Nance apparently "did not follow the proper procedure" when announcing his refusal to hear cases involving a "practicing homosexual" or "homosexual parties."

Earlier this week the ACLU, ACLU of Kentucky, Lambda Legal, Kentucky’s Fairness Campaign, and University of Louisville Law Professor Sam Marcosson jointly filed a complaint against Nance for violating Kentucky’s Code of Judicial Conduct.

Nance was re-elected to an 8-year term when he ran unopposed in 2014. The annual salary for his position is $125,000.

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Image by Brent Moore via Flickr and a CC license