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ACLU, U of L law professor among group filing complaint against anti-gay couple adoption judge

The ACLU of Kentucky, Lambda Legal, the American Civil Liberties Union, Kentucky’s Fairness Campaign, and University of Louisville Law Professor Sam Marcosson filed a complaint Tuesday against Judge W. Mitchell Nance for violating Kentucky’s Code of Judicial Conduct by recusing himself from any adoption proceedings involving lesbian, gay, and bisexual people.

“Judge Nance’s acknowledgment that he is incapable of being fair to certain individuals because of their sexual orientation and on the basis of a demonstrably false stereotype establishes that he is incapable of performing the essential duties of his office,” said William Sharp, ACLU of Kentucky Legal Director. “While he is certainly free to hold his discriminatory beliefs, the fact that they prevent him from fairly and impartially acting as a judge for all Kentuckians mandates that the Judicial Conduct Commission take swift action.”

Judge W. Mitchell Nance

“Rather than displaying a fair and open mind in all adoption matters, Judge Nance blindly condemns gay and bisexual people and puts his discriminatory beliefs above the best interest of the child,” said Currey Cook, Counsel and Director, Youth in Out-of-Home Care Project, at Lambda Legal. “Lambda Legal cannot and will not stand by while this judge ignores the best interests of children in favor of stereotypes that have been thoroughly debunked by well-established social science research. We urge Kentucky’s Judicial Conduct Commission to conduct a prompt and thorough inquiry and remove him from judicial office.”

“Judge Nance has proven he cannot be entrusted with decisions that affect his diverse constituency and their families,” said Chris Hartman, Director of the Fairness Campaign. “His inability to be impartial is a blight on his office and an insult to the 8,000-plus Kentucky children who need loving foster care and forever homes. 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.”

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 cites his personal conviction as the reason for the order. He says that “under no circumstance would ‘… the best interest of the child … be promoted by the adoption …’ by a practicing homosexual.”

In the complaint filed Tuesday, the ACLU of Kentucky, Lambda Legal, the American Civil Liberties Union, the Fairness Campaign, and University of Louisville Law Professor Sam Marcosson argue 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 cannot 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 erodes the public’s confidence in the court and demonstrates a prejudice based on sexual orientation that places a procedural burden on LGB parents that is not on other individuals. Because it is clear that he cannot be fair and impartial when it comes to lesbian, gay, and bisexual people, the advocacy groups urge in the complaint that Judge Nance be removed from office,” the letter said.

From ACLU of Kentucky Communications

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  1. Bruce Layne says:

    Had judge Nance not recused himself from such cases and allowed his personal bias to adversely affect the outcome of same sex parent adoption proceedings, then I believe there would be just cause for concern. However, he’s voluntarily recusing himself. This is a well established legal principle that is very applicable in this instance. Have we reached the point where we must suffer the extreme intolerance of those who demand tolerance? Is there no room for personal conviction in any aspect of our society? We’re seeing the tyranny of the minority, and I believe most Americans are growing very weary of this cry bullying.

    The overwhelming majority of Family Court judges are decidedly anti-father, with the majority of the custody awarded to mothers and the majority of the financial burden placed on fathers, who are little more than an ATM to many Family Court judges. This is by far the most unjust aspect of Family Court. To ignore these injustices while making a mountain out of the relative mole hill of same sex couple adoption issues is ridiculous.

  2. Dawn says:

    Judge Nance is doing the right thing. Leave this man in peace and save your outrage for something actually outrageous!

  3. Lysander Venible says:

    Judge Nance’s self-recusal proves that he is a responsible jurist acting in the best interests of those who come before him. The witch hunt instituted by the left against him has nothing to do with the Judge’s impartiality.

    The progressive Thought Police want to make it clear that diversity of opinion is not welcome under the wonderful rainbow of diversity they claim to promote. Heretics must be punished and banished regardless of how fairly they act or how careful they are to respect the public’s right to a fair hearing.

    There are far worse injustices in the Family Court system than a judge who knows when to recuse himself from a case he cannot in good conscience decide.

  4. As the adoptive mother of bi-racial children I definitely want to know when someone’s bias will affect their better judgement. I wish restaurants could post signs saying “no blacks allowed” (or gays or hispanics or hippies). Then I’d KNOW whether or not I was supporting a bigot! As it stands now, I have no clue.

    Kudos to Judge Nance for recognizing his bias and taking steps to ensure that the people who come before him won’t suffer an injustice because of it.

    P.S. We lived many years in Key West and have so many friends who are gay parents. Gee, those kids turned out GREAT. In many cases, better than the “normies.” Perhaps the good judge could take his nose out of the Old Testament and see humans as they really are. Just a thought.

  5. Frank says:

    Those who support diversity will surely laud Judge Nance’s legal reasoning and recusal. He represents the individual diversity of thought and principles that we all surely seek.
    If he had not recused himself, could he have rendered a fair decision?
    Since the case will be decided by another judge who accepts the case, the gay couple will have a hearing.
    This is a moot issue.

  6. Ann says:

    In my diversity “class” at work, we learned to recognize our own biases. That helps us be more tolerant. It seems to me that he recognized his own bias and acted accordingly?
    By acting out so strongly against this judge the ACLU and others in this case are themselves becoming that which they despise… intolerant bullies.
    There’s real bad judges elsewhere. Leave this judge alone. He’s not bad.

  7. Ray says:

    The judge’s actions indicates that he is an honest person, capable of knowing his own mind, and when he finds that his prejudices might cause his judgment to be biased and unfair to those he is hearing, he recuses himself. Kudos! I wish other judges were as forthright and determined to render fair hearings to all.

  8. Kathy says:

    I totally support Judge Nance for taking the high road with regard to his work, the citizenry he serves, and to his own conscience. It is truly despicable that some would criticize and condemn such an honorable man. My thanks and respect go to Judge Nance and my contempt go to those who would demonize him and remove him from office. It is you who are responsible for such divisiveness and loss of moral anchoring in our society.

  9. Hunter says:

    Self-awareness is a tool of the trade that too many of us have lost. I completely respect Judge Nance’s ability to be self-aware in both his life and his work–it shows a true sense of honesty and a dedication to the principles that our legal system was founded on. Instead of criticizing him, could we instead thank him for his dedication to separating his personal beliefs from his work in order to maintain a truly fair judicial system? Kudos, Judge Nance, you have both my respect and my thanks.

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