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Kentucky judge is under pressure; won't hear gay adoptions

Posted May 16

— Civil rights groups are seeking the removal of a Kentucky judge who declared his conscientious objection to handling adoption cases involving gay and lesbian adults.

The American Civil Liberties Union of Kentucky and other groups complained to the state's judicial disciplinary commission about Judge W. Mitchell Nance, who hears family court cases in Barren and Metcalfe counties, a rural stretch of south-central Kentucky.

Nance filed an order stating that attorneys should notify court officials if their adoption cases involve gay adults, so that he can take steps to recuse himself. He cited a state law requiring judges to disqualify themselves from proceedings when they have a personal bias or prejudice.

The judge said he believes as a "matter of conscience" that "under no circumstance" would it be in a child's best interest to be adopted "by a practicing homosexual." He said his "conscientious objection to the concept of adoption of a child by a practicing homosexual may constitute 'personal bias or prejudice'" that would require his recusal.

The judge then proposed a review process that his critics said would enable him to identify adoption cases involving gays and preemptively recuse himself from them. Kentucky Chief Justice John D. Minton Jr., is reviewing that proposal.

Kentucky law allows gay couples to adopt, and the U.S. Supreme Court ruling in 2015 that legalized same-sex marriage nationwide specifically cites adoptions by same-sex couples as "powerful confirmation from the law itself that gays and lesbians can create loving, supportive families."

The ruling also emphasized that people whose religious doctrines forbid condoning same-sex marriage must be given "proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." But Justice Anthony Kennedy's majority opinion declared in the same paragraph that the Constitution does not permit the state to treat same-sex and opposite-sex couples unequally.

Nance's statements critical of adoptions by gay adults show he's "incapable of being fair to certain individuals because of their sexual orientation," said William Sharp, legal director for the ACLU of Kentucky. His actions violate Kentucky's code of judicial conduct by eroding public confidence in the judiciary, critics said.

"The only ethical thing for Judge Nance to do is resign the bench, but since he refuses, the necessary next step is for the Kentucky Judicial Conduct Commission to remove him," said Chris Hartman, director of the Fairness Campaign, a gay rights organization.

Nance declined comment Tuesday through a court official.

The judge's defenders include the Family Foundation of Kentucky, which also supported Rowan County Clerk Kim Davis, who spent five days in jail for refusing to issue marriage licenses to same-sex couples based on her religious beliefs.

"We can't imagine the Judicial Ethics Commission ruling against Judge Nance for doing what the law requires him to do — recuse himself if he believes his views might bias a case," said Martin Cothran, a spokesman for the group.

"And we can't imagine how the groups now trying to unseat him can claim to be in favor of tolerance and diversity while at the same time trying to hound from office public officials who don't agree with their politically correct ideology."

The judicial conduct commission's rules preclude it from commenting or even confirming that a complaint was filed, said Jimmy Shaffer, the commission's executive secretary.

The commission reviews each complaint to determine whether to open an investigation to determine whether charges should be filed alleging violations of judicial canons. Violations are punishable by reprimands, suspensions or removal from office.

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