Farewell to the Kentucky Judge Who Wouldn’t Hear LGBT Adoption Cases
Judge W. Mitchell Nance said there would be ‘no circumstance’ in which ‘the best interest of the child’ would be ‘promoted by the adoption by a practicing homosexual.’
The next Kim Davis has already come and gone.
As the Courier-Journal reported on Tuesday, the Kentucky Judicial Conduct Commission, by a unanimous vote of 5-0, found family court Judge W. Mitchell Nance guilty of judicial misconduct for refusing to hear same-sex adoption cases—a decision that briefly thrust Nance into the national spotlight back in April.
“The Kentucky code of Judicial Conduct requires Judges to fairly and impartially decide cases according to the law,” the Judicial Conduct Commission wrote in their reprimand, made public earlier this week. “Judge Nance’s refusal to hear and decide adoption cases involving homosexuals is violative of said Canons.”
The reprimand from the Judicial Conduct Commission comes just days after the December 16th retirement date Nance set for himself back in late October, when he penned his resignation as the Judicial Conduct Commission investigated his misconduct. Because Nance was retiring anyway, the Judicial Conduct Commission decided that a “public reprimand” was both “warranted” and “the only public sanction available.”
Nance’s attorney, Bryan Beauman, told The Daily Beast that the Judge “does not have any comment on the matter.”
Throughout this entire episode, the parallels between Nance and Davis, the Rowan County Clerk who refused to issue marriage licenses to same-sex couples in 2015, have been obvious: Both Nance and Davis are Kentuckians who cited religious beliefs to refuse some sort of government service to LGBT people.
Indeed, when Nance first drew outrage for disqualifying himself from same-sex adoption cases because, in his words, there would be “no circumstance” in which “the best interest of the child [would] be promoted by the adoption by a practicing homosexual,” the Courier-Journal wrote that Nance was “echoing the case [of Davis.]”
LGBT advocates like Chris Hartman, director of the Fairness Campaign, invited the comparison as well with headlines like, “Do you know Kentucky’s new Kim Davis in training?” But now, Hartman says, it has become clear that Nance was no Davis—at least in terms of the appetite for their stories.
“I don’t know that the national consciousness had enough room for more than one Kim Davis,” Hartman told The Daily Beast, adding that “the national phenomenon of Kim Davis left such a distaste in not just people all over the nation’s mouths but Kentuckians’ mouths for elected public officials who subvert the law in an attempt to exclude LGBTQ people, that [they] were just done with it at this point.”
Indeed, by the fall of 2015–the year Davis came into the spotlight—only 31 percent of Americans opposed her jailing, according to a YouGov poll, and a majority of Kentucky voters said that she should have to issue marriage licenses to same-sex couples.
Davis may have provided an opportunity for conservative politicians like Mike Huckabee—who famously played “Eye of the Tiger” without permission at a rally for the County Clerk—and Ted Cruz to shore up support from an anti-LGBT base but the country largely rejected the Kentucky County Clerk’s actions.
By April 2017, when Nance wrote an order acknowledging that his views on same-sex adoption constituted “personal bias or prejudice”–and requesting, as the Kentucky Judicial Conduct Commission later summarized, “that any attorney filing a motion for adoption on behalf of a homosexual party notify court staff so that he could recuse and disqualify himself from any such proceeding”–there was relatively little interest in his case.
A handful of anti-LGBT voices chimed in to defend him in newspaper articles, but no one flew down to play an eighties rock anthem by his side.
Instead, the ACLU of Kentucky—which did not immediately respond to The Daily Beast’s request for comment—spearheaded an effort to get Nance removed from office in May, Nance resigned in October, and the public reprimand came this week. Compared to the high drama of the Davis case, the Nance affair has been relatively quiet.
“There’s no room left for these rogue elected officials who want to discriminate against LGBTQ people and their families,” Hartman said. “I think Kim Davis was the darling of that movement, everybody got on board that train for a moment, and then once the national spotlight started shifting, everybody got off the train—and I don’t know that we’ll see another Kim Davis.”
It didn’t help Nance that public approval of same-sex adoption rights was already strong—according to Gallup polling, as far back as 2014, 63 percent of Americans supported same-sex adoption rights. At the time, that was even higher than the percentage of Americans who supported same-sex marriage—55, per Gallup’s numbers.
Nance’s claim that there is “no circumstance” in which a child’s “best interest” would be served by adoptive same-sex parents is not supported by scholarship on the subject, either: As the Columbia Law School’s “What We Know” Project noted in their review of 79 relevant studies, “Taken together, this research forms an overwhelming scholarly consensus, based on over three decades of peer-reviewed research, that having a gay or lesbian parent does not harm children.”
But the lack of anti-LGBT fanfare around Nance suggests that the Davis phenomenon may indeed be over: Instead of championing public officials who refuse to serve LGBT people, the fight has shifted to a new battleground: small businesses.
With all eyes on the Masterpiece Cakeshop case, which centers on a Christian baker named Jack Phillips in Colorado who refused to make a wedding cake for a same-sex couple, opponents of LGBT equality may have a new public face. The Justice Department, as well as a large collection of anti-LGBT groups, now support Phillips.
“That is where things have shifted now—to this question of the baker, the candlestick maker,” Hartman said, noting that small business owners are seen as “a more relatable group of folks” than elected officials like Davis and Nance.
If that is indeed a calculated choice, it’s one that has paid off: Although a clear majority of respondents to a Public Religion Research Institute survey—61 percent—said that they oppose small business owners refusing to provide products or services to gay men and lesbians, when Gallup asked specifically about wedding services last year, the public was more split: 49 percent said that a business that provided wedding services should be required to accept same-sex customers; 48 percent said that “religious objections” would make it acceptable for a business owner to refuse service.
If Nance’s quiet exit from the judiciary reveals anything about the state of LGBT politics, it’s that the next Kim Davis isn’t an elected official, but a baker.