In their joint letter to Senators Leahy and Specter opposing Fifth Circuit nominee Leslie H. Southwick, the Human Rights Campaign and People for the American Way present two cases—out of some 7000 in Southwick’s judicial career—that they claim are “highly disturbing” and “strongly suggest that Southwick may lack … commitment to social justice progress.” I discussed and disposed here, here, and here of the first of these cases—and of the vile insinuation that Southwick’s routine application of administrative-law principles makes him a racist. I now turn to the second.
HRC and PFAW complain about a 2001 child-custody ruling in a case styled S.B. v. L.W., 793 So.2d 656 (Miss. Ct. App. 2001). In that case, the Court of Appeals of Mississippi reviewed a determination by a chancery court to award custody of a child to the child’s father rather than to her mother. By a vote of 8 to 2, the court affirmed the chancery court’s award.
The majority opinion, which Southwick joined, set forth and applied the deferential standard of appellate review: “This Court does not have the authority to reverse a chancellor’s custody determination unless the chancellor is manifestly wrong, clearly erroneous, or applies an erroneous legal standard.” A central issue raised by the mother on appeal—and the sole issue of interest to HRC and PFAW—was whether the chancery court improperly gave weight to the mother’s lesbian conduct and relationships. On that issue, the court of appeals majority cited and applied governing Mississippi supreme court precedents (Weigand v. Houghton and White v. Thompson) that held that a parent’s homosexuality may properly be considered as a factor (though not the sole factor) in custody determinations.
In response, the two dissenting judges asserted that “it is the modern trend across the United States of America to reject legal rules that deny homosexual parents the fundamental constitutional right to parent a child.” Without even addressing the Mississippi supreme court precedents that the majority cited and relied on, the dissent somehow drew “the inescapable conclusion that the issue [whether a parent is homosexual] has no bearing absent a conclusion that such has or will have an adverse impact on the child.”
The dissent elicited a separate response from Judge Payne, in a concurring opinion that Southwick also joined. Payne’s concurring opinion states that “the dissent has delved into an area where our State legislature has made clear its public policy position relating to homosexuals in domestic relations settings,” and it briefly presents several provisions of Mississippi statutory law.
HRC and PFAW first complain that Southwick joined the majority opinion in S.B., which they say has a “disturbing substance” and “troubling” language, as it “refers repeatedly to what it calls the mother’s ‘homosexual lifestyle’ and her ‘lesbian lifestyle.’” The substance of the majority opinion faithfully applies Mississippi supreme court precedent, and HRC and PFAW do not even offer an argument to the contrary.
As for the supposedly “troubling” language: In Lawrence v. Texas, Justice Kennedy’s majority opinion, joined by Justices Stevens, Souter, Ginsburg, and Breyer, used the same phrase that HRC and PFAW now pretend is so nefarious: “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” And President Clinton used the plural of the same phrase—“homosexual lifestyles”—in his July 1993 speech announcing his “Don’t Ask, Don’t Tell” policy on gays in the military. My own preference would be to strike “lifestyle” (in all its usages) from the lexicon, but it is beyond absurd that HRC and PFAW would feign to find it damning that Southwick joins an opinion that uses the phrases “homosexual lifestyle” and “lesbian lifestyle”.
HRC and PFAW also fault Southwick for joining Payne’s concurrence, which they claim “was not only gratuitous, but gratuitously anti-gay” and “appears to have been written for the sole purpose of underscoring and defending Mississippi’s hostility toward gay people.” They even complain that the concurrence doesn’t use the word “gay” but instead refers to “homosexuals” and “homosexual persons”. These arguments are simply silly.
First, the concurrence was not “gratuitous”; it responded directly to an argument made in the dissent, an argument that the majority opinion addressed briefly and incompletely. Second, it is not “anti-gay” at all, much less “gratuitously anti-gay,” and there is no reason to impute to the concurrence any purpose (much less the “sole purpose”) of “defending Mississippi’s hostility toward gay people.” Rather, the concurrence is an exercise in judicial restraint, marking the boundaries between the proper role of the courts and of the legislature. The concurrence recognizes that the legislature sets forth the public policy of the State, and it spells out what that public policy is. HRC and PFAW obviously don’t like that public policy, but their dispute is with the Mississippi legislature. Third, perhaps I’ve failed to keep up with ever-changing usages, but I’ve understood the term “homosexual” to be an umbrella term that covers both gays and lesbians. In a case involving a lesbian, it would have been strange (and would surely have invited HRC’s and PFAW’s heated condemnation) to refer exclusively to gays.
More broadly, of course, both the majority and the concurrence were written before the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas, so it was proper for those opinions to understand that the legal framework of Bowers v. Hardwick continued to govern.
Bottom line: Nothing in this case bears negatively on Southwick’s fitness to be a judge. HRC and PFAW fear that he won’t be a liberal judicial activist, but that’s hardly an excuse for smearing him.