Judge Nance

Mitchell Nance, judge for the 43rd Judicial Circuit's 2nd Division, which is Family Court, was first appointed to the position in 2004 after being elected in 2000 as a district court judge. 

GDT File Photo 

GLASGOW — Judge Mitchell Nance, who is assigned to family court in the 43rd Judicial District covering Barren and Metcalfe counties, has recused himself from hearing adoption cases involving gay residents.

Nance issued an order Thursday citing his "conscientious objection to the concept of adoption of a child by a practicing homosexual" which could lead to his personal bias.

The order went into effect immediately and circuit court clerks in Metcalfe and Barren counties were notified of the recusal Thursday.

An attorney wishing to file an adoption motion involving a gay person or gay couples must notify the court's staff so that another judge can be assigned to the case.

On Friday, Nance said he issued the order so there wouldn't be a long delay if an adoption case was filed in his court concerning adoption by gay parents.

"It's preemptive in nature. I wanted to preempt there from being any uncertainty if the situation arose," Nance said.

But unlike the situation involving Kim Davis, the Rowan County Clerk who refused in 2015 to issue gay marriage licenses through her office, gay residents seeking to adopt children in Barren or Metcalfe counties shouldn't face a legal delay over Nance's decision.

The 43rd Circuit Court has two divisions, and Division 1 Judge John T. Alexander confirmed Friday he would hear any adoption cases affected by Nance's recusal.

"I don't have any plans to recuse myself from any [adoption cases involving gay parents] so it should not affect the ability of any same sex couples to adopt in Barren or Metcalfe counties," Alexander said.

According to Alexander, when a Kentucky circuit court has two divisions, and one judge recuses from a case, the choice to hear the case automatically falls to the judge of the other division.

If that judge were to also recuse themselves from the case, then a regional judge would decide who would hear the matter, Alexander said.

But since Alexander has no objection to hearing adoption cases involving gay parents, there should not be a delay in moving such hearings to his court, he said Friday.

State reaction

Nance's order garnered attention throughout Kentucky on Friday.

The Family Foundation of Kentucky released a statement supporting Nance's decision.

"If we are going to let liberal judges write their personal biases and prejudices into law, as we have done on issues of marriage and sexuality, then, in the interest of fairness, we are going to have to allow judges with different views to at least recuse themselves from such cases," Family Foundation spokesman Martin Cothran said in the news release.

"When adoption agencies abandon the idea that it is in the best interest of a child to grow up with both a mother and a father, people can't expect judges who do believe that to be forced to bow the knee."

Others criticized the order.

Nance's decision not to hear adoption cases for gay residents is "clear discrimination", Kentucky Fairness Campaign Director Chris Hartman said in a phone interview.

"And if Judge Nance can't perform the basic functions of his job, which are to deliver impartiality, fairness and justice to all families in his court room, then he shouldn't be a judge," Hartman said.

Locally, Bowling Green Fairness has gained organizational momentum recently, but Hartman said he wasn't aware of a similar group in Barren or Metcalfe counties.

"I will say that actions like Judge Nance's are exactly the sort of tinder that ignites fire for a fairness movement locally," Hartman said.

A message left with the Kentucky ACLU on Friday afternoon seeking comment for this story hadn't been returned as of press time.

In an email response to questions submitted by the Daily Times, Kentucky Bar Association spokeswoman Shannon Roberts said the organization hadn't received a notice from Nance about his order, and added that such a notification is not required.

Deciding on the order

As for past cases that involved gay parents, Nance — who was initially assigned to family court in 2004 — said he could remember two.

There was a case involving gay parents attempting to adopt a child several years ago in which Nance recused himself from ruling on the motion, he said.

According to Nance, who did not name the specific case, he initially declined to recuse himself from the case when first asked, but later reconsidered and another judge was assigned.

About two to three months ago, Nance said a case in Metcalfe County he was assigned to involved gay parents who were seeking to adopt. Nance said he ruled in favor of the parents, but decided then he should take action to recuse himself permanently from hearing such cases.

"It made the matter come to my awareness more directly, I would say. I felt it would be more prudent to go ahead and address it," he said.

Nance cites Kentucky Code of Judicial Conduct sections in his order regarding personal bias and prejudice. He also cited U.S. Supreme Court and Kentucky Supreme Court cases involving recusal for personal bias.

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.

Nance was elected as district court judge in 2000 and then again in 2002 before being assigned to head family court in the 43rd Judicial District in 2003.

He was most recently reelected without opposition in 2014.

••• Second update •••• 

Gay residents seeking to adopt children in Barren or Metcalfe counties shouldn't face a legal delay due to Judge Mitchell Nance's order recusing himself from hearing such cases, Nance's judicial counterpart said Friday afternoon. 

Nance, who is Kentucky's 43rd Judicial Circuit judge for Circuit Court Division 2, which handles family court cases, released an order Thursday stating he would no longer hear adoption requests when the case involves a gay potential parent or parents due to personal bias. 

The 43rd Circuit Court has two divisions, and Division 1 Judge John T. Alexander confirmed Friday he would hear any adoption cases affected by Nance's recusal.

"I don't have any plans to recuse myself from any [adoption cases involving gay parents] so it should not affect the ability of any same sex couples to adopt in Barren or Metcalfe counties," Alexander said.

According to Alexander, when a Kentucky circuit court has two divisions, and one judge recuses from a case, the choice to hear the case automatically falls to the judge of the other division. 

If that judge were to also recuse themselves from the case, then a regional judge would decide who would hear the matter, Alexander said. 

But since Alexander has no objection to hearing adoption cases involving gay parents, there should not be a delay in moving such hearings to his court, he said Friday.

Nance said one reason he issued the order instead of recusing himself on a case-by-case basis was to cut down on the time it would take to find a replacement judge. 

In an email response to questions submitted by the Daily Times, Kentucky Bar Association spokeswoman Shannon Roberts said the organization hadn't received a notice from Nance about his order, and added that such a notification is not required. 

The Daily Times also left a message with the Kentucky ACLU on Friday afternoon seeking comment for this story.

The Family Foundation of Kentucky released a statement supporting Nance's decision.

"If we are going to let liberal judges write their personal biases and prejudices into law, as we have done on issues of marriage and sexuality, then, in the interest of fairness, we are going to have to allow judges with different views to at least recuse themselves from such cases," Family Foundation spokesman Martin Cothran said in the news release. 

••• Original Story ••• 

GLASGOW — Judge Mitchell Nance, who is assigned to family court in the 43rd Judicial District covering Barren and Metcalfe counties, has recused himself from hearing adoption cases involving gay parents. 

Nance issued an order Thursday citing his "conscientious objection to the concept of adoption of a child by a practicing homosexual" which could lead to his personal bias.

The order went into effect immediately and circuit court clerks in Metcalfe and Barren counties were notified of the order Thursday.

An attorney wishing to file an adoption motion involving a gay person or gay couples must notify the court's staff so that another judge can be assigned to the case. 

On Friday, Nance said he issued the order so there wouldn't be a long delay if an adoption case was filed in his court concerning adoption by gay parents. 

"It's preemptive in nature. I wanted to preempt there from being any uncertainty if the situation arose," Nance said. 

As for past cases that involved gay parents, Nance — who was initially assigned to family court in 2004 — said he could remember two. 

There was a case involving gay parents attempting to adopt a child several years ago in which Nance recused himself from ruling on the motion, he said. 

According to Nance, who did not name the specific case, he initially declined to recuse himself from the case when first asked, but later reconsidered and another judge was assigned. 

About two to three months ago, Nance said a case in Metcalfe County he was assigned to involved gay parents who were seeking to adopt. Nance said he ruled in favor of the parents, but decided then he should take action to recuse himself permanently from hearing such cases. 

"It made the matter come to my awareness more directly, I would say. I felt it would be more prudent to go ahead and address it," he said. 

Nance cites Kentucky Code of Judicial Conduct sections in his order regarding personal bias and prejudice. He also cited U.S. Supreme Court and Kentucky Supreme Court cases involving recusal for personal bias. 

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. 

Nance was elected as district court judge in 2000 and then again in 2002 before being assigned to head family court in the 43rd Judicial District in 2003. 

He was most recently reelected in 2014. 

••• This story will be updated. •••