Breach of Ethics?
A Kentucky family court judge has announced he will not hear adoption cases involving any "practicing homosexual" or "homosexual parties" because it would not be in the "best interests of the child" to allow same-sex couples or LGBT people to be parents.
Judge W. Mitchell Nance, who was re-elected to an 8-year term when he ran unopposed in 2014, on Thursday issued an order saying he has the right and the obligation to recuse himself from any case in which he might have a personal bias.
The Courier-Journal reports Judge Nance says that "as a matter of conscience" he believes that "under no circumstance" would "the best interest of the child be promoted by the adoption by a practicing homosexual."
Nance told the Courier-Journal in an interview, "I stand behind the law I have cited, the matter of conscience I addressed and the decision I have made."
Asked if judges who oppose capital punishment should be able to recuse themselves from death penalty cases, he said, "I really have not thought about that enough to given an intelligent answer."
Judge Nance's stance, however, may be a problem.
"He has taken an oath to uphold the law, which by virtue of the equal protection clause does not tolerate discrimination on the basis of race, religion or sexual orientation," Indiana University law school professor Charles Geyl, a judicial ethics expert, says. "If he is unable to set his personal views aside and uphold the law â€” not just in an isolated case, but with respect to an entire class of litigant because he finds them odious â€” it leads me to wonder whether he is able to honor his oath."
Nance, not surprisingly, has been described by local attorneys as highly religious and opposed to divorce, The Courier-Journal notes.
"Even in uncontested divorces involving no children, he makes the parties appear in court, offers them condolences on the demise of their marriage and makes them explain why it didn't work out."
Attorneys say he also asked divorce litigants where they go to church and whether they are a true believer.
It's unclear if that, too, is within the confines of proper judicial ethics.
Judge Nance notified local lawyers they will need to request a different judge should they have an adoption case involving LGBT people or same-sex couples.
But clearly the average person would have reason to believe Judge Nance's personal biases extend past adoption.
"Lawyers say Nance will now also have to disqualify himself from any litigation involving gay people, including divorces involving a spouse coming out of the closet. He said he understands that gays and lesbians would have reservations about appearing before him."
It would seem that any LGBT person who Judge Nance ruled against might have reason to contest the ruling, as might any person who thinks the judge thought they are not a "true believer."
Would a defendant or plaintiff whose views on marriage equality or rights of LGBT people are different than Judge Nance's have reason to question his ability to be fair? Would they also have reason to question his rulings?
Dan Canon, a Louisville lawyer who helped win the right of same-sex marriage in Kentucky, said: "The bottom line is if this judge can't fulfill his duties because of his personal biases, he should resign." Chris Hartman, director of the Fairness Campaign, said, "If he can't do the job, he shouldn't have the job."
The Glasgow Daily Times adds that "Nance performs marriages, but said he has never been asked to marry a gay couple. If he were asked, Nance said he would decline to perform the marriage rights."
Depending on Kentucky law, that too could pose a problem for Nance.
Judge Nance is up for re-election in 2023.
To comment on this article and other NCRM content, visit our Facebook page.
See a mistake? Email corrections to: [email protected]