How An Ethics Probe Pushed Out An Anti-Gay Judge

After announcing that he wouldn't hear any adoption cases involving gay and lesbian couples, Kentucky Judge W. Mitchell Nance will resign amidst a state ethics probe into his comments, the Lexington Herald-Leader reported Thursday. The Kentucky Judicial Conduct Commission ruled that Nance had violated several state judicial codes with his proclamation, and it had already initiated formal proceedings against him when he notified the governor of his resignation, which is effective December 16th.

In April, Nance declared that adoption by a "practicing homosexual" could never be in a child's self-interest, citing his "sincerely held religious belief that the divinely created order of nature is that each human being has a male parent and a female parent." He also issued an order requiring lawyers to notify him of any pending adoption cases involving same-sex couples, so he could recuse himself.

But adoption by same-sex couples is legal in Kentucky (and every other state), and the ACLU, Lambda Legal and several other groups filed a complaint against Nance with the Kentucky Judicial Conduct Commission, asking that he be removed from office.

The commission concluded its investigation into that complaint in September, and found that Nance had indeed violated several ethics provisions through his comments and the order he issued to state lawyers.

The Kentucky Code of Judicial Conduct states that judges must "respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," and furthermore, requires them to "perform judicial duties without bias or prejudice." This includes, per the code, "prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status."

The commission concluded that Nance violated those provisions, as well as other rules requiring judges to promote public confidence in the judiciary and hear all cases assigned to them.

In addition, the order that Nance issued to attorneys constituted a "Local Rule" for the courts within his jurisdiction, the commission ruled. But local rules in Kentucky must first be cleared with the Chief Justice of the state's Supreme Court, and Nance never obtained any such permission.

The commission's proceedings against Nance could have resulted in his removal from office, but given his resignation, those proceedings are now moot.

In 2016, a federal judge placed an injunction against a Mississippi law that banned same-sex couples from adopting, saying that it violated the Constitution's equal protection clause. State officials didn't challenge that ruling, and because Mississippi was the last state in the country to have such a law on the books, adoption by gay couples thus became legal in all 50 states.

Nance's refusal to hear gay adoption cases is reminiscent of another recent controversy in Kentucky. After the Supreme Court legalized gay marriage in 2015, Rowan County Clerk Kim Davis announced that she nevertheless wouldn't issue marriage licenses to same-sex couples, explaining that she was acting "under God's authority."

Although she was cheered by religious conservatives for her decision, Davis was ultimately put in jail for defying a federal court order requiring her to issue gay marriage licenses. Litigation in that case is ongoing, and on Wednesday, a judge ordered the state of Kentucky to pay $225,000 to the couples who sued Davis over her refusal to issue them marriage licenses.

Despite Nance's claims, academic research strongly indicates that children with gay parents fare just as well as other children. A 2015 analysis by Columbia Law School concluded that in 75 of 79 studies, researchers couldn't find any ways in which children of same-sex couples fared worse than children with straight parents.