Dispatches from the Creation Wars

Another Anti-Gay Bush Judge

Pam’s House Blend reports that the Senate was to vote Tuesday on the nomination of Leslie Southwick to the 5th Circuit Court of Appeals. The Human Rights Campaign came out strongly against this nomination, largely on the basis of a 2001 Mississippi state Appeals Court ruling in which Southwick joined a concurrence in a case that took custody away from a mother based partly on the fact that the mother was in a lesbian relationship.

In that case, it should be stressed, the lesbian relationship was only one part of the decision of the lower court. I am disturbed by the fact that the lower court considered the mother’s sexual orientation in determining her “moral fitness”, but from the full record it looks like there were adequate reasons for granting custody to the father aside from that consideration.

And the fact is, Southwick could have simply agreed with that judgment. The majority opinion of the court upheld the lower court ruling granting custody to the father. But instead he joined a concurring opinion by another judge that focused solely on the mother’s homosexuality and cited irrelevant state law for the clear purpose of arguing that homosexuality is so terrible that that alone is enough to deny custody. That concurrence begins:

While I do agree with the majority, I write separately because I feel the dissent has delved into an area where our State legislature has made clear its public policy position relating to particular rights of homosexuals in domestic relations settings. In my review of statutory authority, I find that in 2000 the legislature added an amendment to Miss. Code Ann. § 93-17-3 (Supp. 2000) which reads, “(2) Adoption by couples of the same gender is prohibited.” This statute is brand new and has not yet been challenged in our appellate courts.

Utterly irrelevant. This is not an adoption case, this is the biological mother of the child.

Another statute which shows the legislature’s intention concerning homosexuals and family relations is Miss. Code Ann. § 93-1-1(2) (Supp. 2000). A 1997 amendment to that statute added the sub-section which reads, “Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.”

Again, completely irrelevant. This case has nothing to do with gay marriage.

Additionally, Miss. Code Ann. § 97-29-59 (Rev. 2000) states, “Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.” That statute has been held to apply to homosexual acts.

So not only should the mother have her child taken away solely because she is a lesbian, she should be thrown in prison for up to ten years for it. How enlightened. The concurrence goes on and on about other states banning gay adoptions as though that was relevant to the case. The whole point seems to be “lots of people think gays are icky, so it’s okay to take a child away from a parent just for that reason.” It’s a very disturbing opinion and is more than enough to deny the nomination.