By Maxine Chalker
On December 16, 2017, Judge W. Mitchell Nance will officially resign. Nance, who oversaw a family court for Kentucky’s Barren and Metcalfe counties, gained notoriety in April 2017 after issuing a court order in which he refused to hear any more adoption cases involving gay or lesbian couples.
Nance, by his own admission, was “biased” against same-sex partners. The judge believed (and assumedly continues to believe) that letting a “practicing homosexual” adopt could never (“under no circumstance”) be in a child’s best interests. So Nance took himself out of the game, pointing to judicial ethics norms that obligate judges to recuse themselves from cases in which they have a personal prejudice.
Of course, Nance’s “conscientious objection” flew in the face of American law. While the Supreme Court’s 2015 decision in Obergefell v. Hodges centered on same-sex marriage, one of the family’s included in the case had been barred from adopting by Michigan’s discriminatory laws on the matter. Nance was also going against Kentucky law; the State allows both same-sex couples and LGBT singles to adopt.
Unsurprisingly, advocates across the country were quick to denounce Nance’s self-recusal as blatant discrimination. Speaking to the Louisville Courier-Journal, Indiana University law professor Charles Geyh said, “[Nance] 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.”
But the Judge’s blanket refusal to handle gay and lesbian adoptions could be a violation of that oath, Geyh continued. “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,” the expert said.
Other experts noted that Nance’s intention to recuse himself from an entire class of cases could violate another code of judicial ethics, one which obligates judges to perform their duties “faithfully.” Another problem? Before issuing his order, Nance had presided over a number of same-sex adoption proceedings. So it was reasonable to wonder whether Nance had already allowed his bias to creep into actual adoption cases.
Last spring, Kentucky’s Judicial Conduct Commission began investigating Nance’s decision. Apparently, the ethics board came to much the same conclusion as Professor Geyh, the American Civil Liberties Union and the Fairness Campaign. Nance was charged with violating a code that compels judges to “maintain public confidence and perform their duties impartially,” the Washington Post reports.
That was enough for Judge Nance, who moved to extinguish any further scrutiny by announcing his resignation on October 24, 2017. His resignation takes effect on December 16. The Supreme Court of Kentucky is now looking for a new Justice to fill Nance’s seat.
Maxine Chalker, MSW / LSW is founder and executive director at Adoptions From The Heart. A strong supporter of the LGBT community, Maxine has dedicated her career to advancing the benefits of “open” adoption.