Conservative former member of Mississippi Appellate Court that signed on to anti-gay opinion wins seat on 5th Circuit Court of Appeals
Leslie Southwick, a controversial former Mississippi Appellate Court judge, won Senate confirmation Wednesday, Oct. 24, for a seat on the U.S. Court of Appeals for the 5th Circuit.
The 5th Circuit settles federal appeals and creates binding case law for Texas, Louisiana, and Mississippi.
Southwick’s confirmation came in two votes; first a 62-35 vote to end debate on his nomination, and second, a 59-38 vote to approve.
According to the New York Times, Republicans lobbied their Democratic colleagues hard over the last few weeks, as did conservative Democrat Ben Nelson of Nebraska, a Southwick backer. By contrast, Senate Majority Leader Harry Reid of Nevada did not put much effort into rounding up the opposition.
The Times, citing the Capitol Hill newspaper Roll Call, suggested that Reid traded GOP support for upcoming spending bills in exchange for letting Southwick proceed unmolested through the Senate debate.
Southwick would not even have made it to a floor vote had he not survived a series of contentious hearings before the Senate Judiciary Committee earlier this year. In early August, Democrat Dianne Feinstein broke a tie in the committee, tipping the balance to a 10-9 decision in favor of sending Southwick to a full Senate vote.
Feinstein said at the time that despite a few “mistakes,” Southwick was “a qualified, circumspect person.”
One of those “mistakes” came in a 2001 case involving a bisexual woman, “SB” in court records, who was raising her 8-year-old illegitimate daughter with the help of the daughter’s father, “LW.” Although the pair had never been party to a formal court order, the father contributed child support and the girl visited his family and spent time with him and his children.
SB and LW had never lived together, and in fact, SB was living with a female lover while she was pregnant.
At some point, SB decided to move to Gulfport with her partner (not the same one from the girl’s infancy) and start a business. The father objected, and petitioned a court for full custody. He won, based in part on the judge’s determination that the mother’s lifestyle was a mark against her.
The Mississippi Court of Appeals upheld that decision for a number of reasons. The majority determined that the standard of review should be the one that governs new custody cases, not the tougher standards that govern change of custody.
They also grappled with the weight that should be given to the mother’s sexual orientation, deciding that as long as it was only part of the equation, the lower court was not in error.
Other factors included the mother’s lack of financial resources, her uncertain future and vague business plans, contrasted with the father’s large house and six-figure income.
But whatever one might think of that calculation, Judge Southwick’s contribution to the case sent chills through the LGBT legal analysts who evaluated his candidacy for the federal bench. Instead of simply signing on to the majority opinion, Southwick gratuitously put his name on a separate opinion that went out of its way to articulate a clear hostility towards gay and lesbian parents.
Written by Judge Mary Libby Payne, the three-page commentary suggested that the mother’s sexual orientation alone would be grounds enough to deny her custody. The opinion cited some of the most anti-gay state policies and court opinions in the archives, including a 15-year-old advisory memo by the New Hampshire Supreme Court condemning gay adoptive parents.
“I do recognize that any adult may choose any activity in which to engage,” wrote Payne.
“However, I’m also aware that such person is not thereby relieved of the consequences of his or her choice . As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State’s policies, in that her rights to custody of her child may be significantly impaired.”
Although Southwick didn’t write the concurring opinion, he was under not obligation to sign it, either. But sign it, he did, leading observers to sharply question his ability to treat cases of gay rights law with equanimity from a position on the 5th Circuit.
In addition to the custody case, Southwick also ruled in favor of an employee who lost her job for using the “n” word against a colleague. She was reinstated with back pay in a decision, again not written, but backed by the nominee.
LGBT advocacy groups had opposed Southwick’s confirmation, and Joe Solmonese, president of the Human Rights Campaign Fund, said a vote to confirm Southwick was “a vote against the dignity and safety of our families.”
This article appeared in the Dallas Voice print edition October 26, 2007.
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