UPDATE: the racist homophobe has been confirmed. vote results here. heaven help the minorities in his district.
The U.S. Senate votes TUESDAY on whether Judge Leslie Southwick, the Mississippi judge who signed an opinion that said being gay was an acceptable reason to have your children taken away, will have a lifetime appointment to the Federal bench.
Please call your Senators right away and make sure they don’t confirm this man. Tuesday’s vote is the only thing standing in the way of Bush’s appointment.
Call your senators and make sure they “vote NO on cloture,” to stop the nomination of Judge Leslie Southwick because of his track record of biased decisions. You can call the Capitol switchboard at (202) 224-3121 and ask for each Senator’s office. If you don’t know who your senators are, give the switchboard operator your zip code and they’ll connect you.
Back Story. Cross-posted at Pam’s House Blend.
I wanted to know more about the case in question since your link only goes to HRC and that story also has no facts of the case. So I went to wikipedia and followed the links there.
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From those sources, here is what the opinion said:
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The basic premis of this case was who was more fit to be this childs primary custodian:
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a mother who had previously been married and divorced, gave up custody of a son, quite a good paying job and was working less then 16 hours a week, planned to start her own business, planned to move to the coast but had no idea where they would live, where the kid would go to school, and lived a lesbian life style that included two live in partners in time from when she separated from the father
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or
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a married father, who had jointly raise the child since the parents split, who had another child that this kid was close with, a steady job with a house hold income of over $100K, a house where the child would have her own bedroom, in a town that was know for its good school system and presented a more traditional, stable family.
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The mother even admitted that it was in the child’s best interest to remain in the town.
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The judge who decided that the case said that the lesbian lifestyle was not the sole factor in deciding the case but it was one of the points considered. He also backed up this position with case history that supported the use of life style in the decision making process for custody.
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In this case, would you seriously argue that it was in the best interest of the child to move with the mother rather then stay with the father?
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Would you also argue that lifestyle should not be considered in determining custody?
you mean illegal drug use, not coming home until late, disappearing for days at a time, having a revolving bedroom door, and serving up cold cereal or cold pizza for dinner five nights a week, then yes, lifestyle should be considered in determining custody.
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If you mean the parent loving a man or loving a woman — all else being equal — than no, “lifestyle” should not be considered in determining custody.
and from my point of view, I believe that all else being equal, sexual orientation should be considered.
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I believe this because the decision is what is in the best interest of the child and in today’s society a kid with a homosexual parent would get a fair amount of shit from his classmates and even the parents of other kids and some teachers. Maybe someday we will grow up enough as a culture and this will not matter but we are not there today.
Blame the victim. Kids with gay parents get teased? Blame the gay parents, not the people doing the teasing.
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Of course, since you used ‘lifestyle’ to describe LGBT folks in your first posting, your support of discrimination was probably to be expected.
I used lifestyle because that’s what was in the decision.
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And I am not saying that the people doing the teasing aren’t doing anything wrong, just that it is going to happen. Shit, it’s hard enough being a kid most of the time. Give the shitheads more ammunition and it get’s that much harder.
In this case isnt that “ammunition” being provided by the law?
The law is continuing to perpetuate the “straight=good, homosexual=bad” myth if that is what you mean.
The law is condoning the actions you profess to regret occur. How could it be interpretted differently.
Recently the Patriot Ledger had an article re Devals’ hometown, Milton, MA, was all in a tizzy because a lesbian with a child was having immense difficulty. It seems the cherub’s with whom her child was forced to go to school with, weren’t particularly accepting of mom’s life style after said child announced to everyone on the playground that she had two mom’s. To exacerbate the issue said child began to give all of her fourth or fifth classmates instruction in artificial insemination. Now it appears that the entire school system is involved and the parents in one particular school are extremely agistated re their children’s newly aquired sex education.
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To add frosting to the cake, the aggreived lesbian mother stated, “I never had these problems at St Anne’s”
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Yes, children of same sex partners do in fact have a tougher row to hoe in life. Can you imagine that?
Having two moms (note absence of apostrophe in formation of plural) is not a question of sex education. I, for example, never had sex with my mom.
I believe that all else being equal…
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…apparently you are unaware that there is no such thing as “all else being equal.” Each family is different.
That the kids of gay and lesbian parents don’t do any worse than kids with straight parents.
do you have any links?
…”American Academy of Pediatrics” “same sex adoption” Many of the documents are behind pay walls, but you might look at abstracts such as this one The statement of the AAP regarding same sex adoption (which is really not in issue in this case from Mississippi, but which should provide an indication of what their opinion is regarding parenting by homosexuals) is here
…the parade of horribles that followed your blockquote had something to do with your blockquote (the citation to which, like Keller, you studiously neglected to provide) is supposed to be dispositive. Despite the fact that the parade of horribles had absolutely nothing to do with your blockquote.
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Let’s examine a few things from your parade of horribles.
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…quite [sic] a good paying job and was working less then 16 hours a week, planned to start her own business…
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Odd, I had believed that conservatives were in favor of entrepreneurialism. BTW, presumably, the father would have been liable for child support even if the mother retained custody, so it wasn’t as though the child would go wanting. If there was actual evidence that the child was not being cared for, you might have an argument for him to be removed from the mother’s custody. But you haven’t suggested that, have you?
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…planned to move to the coast but had no idea where they would live…
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Just to let you know, shortly after my parents got married in 1946 immediately following WWII, they didn’t know where they were going to go, either. They just knew that it was unlikely that they would be in either Georgia (where my mother’s mother lived) or Virginia (where my father’s family lived). My father blindfolded my mother, gave her a stick pin, and pointed her toward a map of the US. Where she stuck it was where they went. Entrepreneurialism? You bet your booty. They ended up in Little Rock, Arkansas for a few years.
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and lived a lesbian life style that included two live in partners in time from when she separated from the father
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Oh, so here we get to the crux of the matter. Two live-in (presumably same-sex) partners. Now, you tell me, would the judge have voted to remove the child if they were live-in (or live-out) opposite sex partners? I tend to doubt it, particularly given the tenor of your blockquote.
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Let’s get to your blockquote. Apparently neither you nor the judges in the case has heard of the 14th amendments equal protection provision. It is fairly clear from your blockquote that the judges intended to discriminate against homosexuals. The blockquote specifically says I agree that we should not find that the chancellor erred in considering the homosexual lifestyle of one of the parents in this case as a factor in determining suitability for custody. Enough said. The judge is a bigot.
I do not agree with the assesment that sexual orientation should be a consideration in such cases. But thats just my opinion. What I read was that the judge apparently was following the law of the state which has jurisdiction?
If so isnt this an issue which should be addressed at that states level rather than attacking the judge who is merely performing her duty to uphold it?
…part of and superiour to the law of the state. And that’s the point.
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If you don’t believe that equal protection does not extend to sexual orientation, let me merely point out the 7th circuit’s opinion in Nabozny v. Podlesny and the US Supreme Court’s decision in Romer v. Evans
Excuse me for not reading through the entire legal decision (honestly, they bore me unlike anything I could imagine). so lets just leave it at “Ill take your word for it”.
I always assumed that at some point equal protection would be extended to cover such cases and that point all regressive state laws would become unconstitutional. I take from your post that this has already happened?Has it? If so why wasnt this stupid law thrown out?
…although the Nabozny opinion is quite revealing.
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Unlike Keller, I like to do citations for those who are interested in checking me 😉
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Regarding …why wasnt this stupid law thrown out? it should be apparent that state courts don’t apply federal law in a uniform manner. Remember, in more than a few states, judges are elected. And, in more than a few states, minorities are disproportionately disenfranchised. One result is “Jim Crow” but under the radar. And the federal government, whether under Reps or Dems, are disinterested in addressing the problem.
Alright, I tried again to read the decision and this time I actualy made it about half way through before I found that I was having to re-read each sentence 4 or 5 times before finaly admitting I couldnt read any more … dang law is a lot of fun 🙂
Anyhow; here is my SIMPLISTIC takeaway.
Equal protection is already established as I expected it would be. The case you cite seems not to debate wether the protection exists but about why its not being enforced in Wisconsin.
However the OP tells us that laws still exist in places that fly right in the face of the fact that equal protection exists?
How can a judge, any judge, in any court anywhere regardless if they are appointed or elected, deny the existence of the protection of the constitution regardless of their personal opinions?
I am of the opinion at this time that the judge in Missisippi was repeating the law as it is written, it may not have been his place to decide on the laws merit, but shouldnt another judge someplace else in that state have reviewed the actual law by now and tossed it out?
it is up to any judge to determine the constitutionality of the law that he or she is purporting to apply. I seriously do not understand what you are trying to imply.
I told you already that I had no idea what I was talking about 🙂
So you are telling me that any judge at any time can rule a law unconstituional and thus ignore it? I was under the impression that such decisions were made by higher courts in cases that were set up to specificaly demonstarte that?
Hmmm …
I was under the impression that such decisions were made by higher courts in cases that were set up to specificaly demonstarte that?
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is incorrect. A trial court judge’s determination that a law is unconstitutional may be overturned on appeal, but a trial court judge makes the initial determination.
Makes me wonder why the topsy turvey world we wittness is even this structured and not MORE chaos filled if every randomly selected hack at all levels is free to interpret everything any way they like … hmmm
Do repeat offenders get sent to the penalty box?
I would have expected better but I guess that would be naive.
I have always been tempted to defer most social issues to a states right basis but it becomes apparent that some states would just become black holes …
Isnt some function of the fed to insure minimum compliance on civil right issues?
Raj, discrimination is not always unconstitutional, even on the basis sexual orientation.
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From Nabozny:
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blockquote>…discrimination on the basis of sexual orientation is subject to rational basis review. … The rational basis standard is sufficient for our purposes herein.
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Under rational basis review there is no constitutional violation if “there is any reasonably conceivable state of facts” that would provide a rational basis for the government’s conduct.
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In that case, they said there is no rational basis to allow someone to get beat up. But that says nothing about a parental custody, and the “state has spoken” about the rights of homosexuals in domestic situations. The question is, did they have a legitimate rational basis. That isn’t answered by Nabozny.
…now I’m sure that at some point you might expound upon a rational basis for denying custody based on the parent’s homosexuality.
And allowed chancellors to use homosexuality as one factor in determining custody, consistent with many other Mississippi laws that disapprove of homosexual relationships. So the judge can’t really go and reverse his Supreme Court’s findings on that, can it? They try to respect precedent and higher courts.
…you are unwilling to even suggest a “rational basis” for the anti-gay discrimination? Is it because you are unable to?
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I will suggest to you that, whatever the Chancellor (the trial judge) did, the state’s supreme court, whose opinion was in the link, was not bound by its previous decisions. It could have over-ruled them in light of 14th amendment jurisprudence that I cited..
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So, tell me, what was the supposed ‘rational basis for the anti-gay discrimination?
so they were bound by precedent to the Supreme Court. Or of course they weren’t, but it’s not a reason to award that child to that mother, which is what would have happened if the appeals court had chosen this case to challenge the legislature and the supreme court.
…and thank you for ignoring the issue.
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Now, I’m sure that you can tell me the rational basis for the state court to discriminate against gay people.
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Until and unless you are willing to post the proposed rational basis consider yourself ignored.
If you are saying we should only have federal judges who use every opportunity to affirm every gay rights position there is, ignoring precedent, law, and the effects of their decision on the people involved, that’s ridiculous.
…statement when taken in context. It is true that a trial court or appeals court is bound to follow the precedent set forth by the state’s highest court, but they are also duty bound, primarily via the supremacy clause, to the US. Constitution and US constitutional jurisprudence. In this case the Appeals Court could and in my opinion, should follow the dictates of the 14th Amendment which supercede state law. If it was argued in the appeal the court could have found that the law violated the 14th amendment and not run afoul of stare decisis.
If the only reason the mother was losing custody was because of her orientation, then maybe the court would have reversed the Chancellor on 14th grounds, challenging the precedent of the Supreme Court and the legislature. That has happened before, but this case was not an opportunity to do that. There is no law in Mississippi that forbids parents from retaining custody of their children if they are gay.
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This case is more interesting for its evolution on custody cases for babies born out of wedlock. The courts are now treating these cases as if the couple had been married and are getting a divorce, rather than the mother having sole custody of illegitimate children.
and yeah, we’re unable to come up with a rational basis, but this thread is about whether this judge is a homobigot who needs to be kept off the federal bench, and this case only shows that he respects the supreme court and the legislature.
…nobody is entitled to a lifetime sinecure on the federal bench.
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This candidate has shown himself to be a homobigot, and, obviously unlike you, as far as I’m concerned, that’s an issue that should be taken into account when considering his nomination.
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As far as I can tell and this case only shows that he respects the supreme court is absurd, given the Romer vs. Evans case that I cited earlier. Stop BSing us.
I don’t think Romer v Evans made it impossible to discriminate against homosexuals, the rational basis test is still valid in deciding if a law is constitutional or not. All Romer did was get rid of Colorado’s “too narrow and too broad” Amendment 2. A law saying that a homosexual lifestyle is one factor that can be taken into account in custody cases is very tailored to an obvious implied rational basis. It isn’t up to the judge (or to anyone in Massachusetts on a blog) to identify and prove the rational basis.
This has been making for some good reading … How is it possible that discrimination of any sort is not unconstitutional?
Even white men can be discriminated against.
…discrimination is adjudicated using strict scrutiny, not rational basis.
That’s why the Michigan quotas were constitutional. There was a rational basis to them.
…incorrect. Are you talking about the Univ. Of Michigan cases? Read the cases. Necessary to achieve a compelling state purpose, i.e. strict scrutiny. This is basic Constitutional jurisprudence.
Yeah, OK, I was using the term “rational basis” in a common sense way. The rational basis has to be a compelling state interest and a court is supposed to use strict scrutiny to really examine whether the law accomplishes it and is narrowly tailored to accomplish it. You’re right, but it makes the point stronger that in sexual orientation cases, there is no strict scrutiny, it is not up to the judge to examine the law to see if it is narrowly tailored to achieve a compelling state interest.
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Raj seems to want the Mississippi Appeals court to apply strict scrutiny when it is not a race-based discrimination.
No, they’re all rational basis That’s why the Michigan quotas were constitutional.
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…the US Supreme Court opinions in the University of Michigan cases (there were two of them) is more than a bit flawed. One case, Grutter v. Bollinger et al.. involved law school admission, the other case, (Gratz et al v. Bollinger et al.), involved undergraduate admission. The Court held in Grutter that a racially diverse student body in the law school served a compelling state interest (remember that phrase), and that the manner in which race was taken into account was narrowly tailored (remember that, too) to foster that interest. On the other hand, in Gratz the Court held that, whether or not a diverse student body served a compelling state interest, the manner in which race was taken into account was not narrowly tailored to foster that interest.
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“Compelling state interest” and “compelling state interest” are a touch-phrases for when the court is applying the “strict scrutiny” test, not the “rational basis” test. You really should stop playing armchair lawyer.
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Now, stop avoiding the issue. What is your proposed rational basis (other than anti-gay bigotry) for supporting the opinion signed on by this homobigot?
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The state has an interest that children be raised with a marriage by two parents or step-parent. Same sex marriages aren’t legal in Miss, therefore there’s a rational basis for awarding custody to the parent who either is now married, or else can legally become married.
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That’s the rational basis argument, or one of them.
but three lefts do
But if you wish to win a case in Mississippi, a platitude isn’t the place to start. You’ll have to rebut the “rational basis” I articulated. i.e. children thrive in a household with married parents moreso than in single family household.
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That rational basis argument carried the day in the 11th circuit in Lofton v. Secretary of the Dept. of Children & Family Services.
…You are contending that, if a state sets up an artificial insurmountable obstacle to custody of a child by a lesbian parent, that it is proper that the state should be able to rely on its self-imposed insurmountable barrier to deny custody as a rational basis. It strikes me that that is silly, but that is what you are saying. The state itself is setting up an artificial insurmountable barrier.
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A few points. One, you obviously do not know what a step-parent is: The state has an interest that children be raised with a marriage by [a] step-parent A step-parent is legally a “stranger” to a child. He or she has married one of the bio parents, but, unlike the bio parent has no parental rights in regards the child, nor does he or she have any obligations in regards the rearing of the child. Sounds somewhat like a same sex partner of a bio parent.. No rational basis.
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Two, The state has an interest that children be raised with a marriage by two parents that’s a nice sentiment, but it ignores several issues. Death of one of the parents. Divorce. Separation. Are you seriously going to suggest that a child be ripped from his/her home because of any of these? I sincerely doubt it. Again, no rational basis.
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A divorced parent, widowed parent can legally remarry in the State of Mississippi. A similarly situated gay parent cannot marry a partner of the same sex in Mississippi. It’s legally impossible.
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Well, first, can we agree that there’s no precident for the State to take a child from a single parent home as result of the death of one parent? Absurd illustration really.
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If, for example, a married gay couple with a child, legally adopted in Massachuetts, moved to Mississippi and the couple divorced or separated , the court would have to make a decision to whom to grant custody.
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The court would pick one parent, or choose joint custody, in the interest of the child and the totality of the facts, as was the case which is the subject of this thread. The court might ‘rip’ him from one home or the other, much the same as a child of a traditional marriage.
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A state has an interest that children be raised within a marriage. Do you dispute this?
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If you are a lawyer, then you know the hurtle to reach “rational basis” is very low. It’s impossible for a gay parent to legally marry in Mississippi; married parents are more favored to the development of a child. Rational basis met.
It’s impossible for a gay parent to legally marry in Mississippi; married parents are more favored to the development of a child.
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Gay parents remarry all the time, lots of men have married women who have left their first marriage for a lesbian relationship, and then left that. (Probably doesn’t happen much the other way around though, but maybe). I don’t think it is fair to reward parents for remarrying or their likelihood of remarrying, it shouldn’t be required (after all it is not even allowed in many churches).
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But just because I don’t like the rational basis you offer, doesn’t mean it isn’t a rational basis.
Raj keeps mindlessly asking for ‘rational basis’. When I give him the ‘rational basis’ successfully applied in the 11th circuit federal case, he just ignores it. But, it’s there.
discrimination is not unconstitutional. You want to apply strict scrutiny to this case, and you want the “armchair lawyer” to do it? Interesting. That’s not even the job of the Mississippi Appeals court judges, let alone us armchair lawyers.
discrimination is not unconstitutional
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I never said that discrimination ipso facto was unconstitutional. That is why I have continually demanded that you provide a rational basis for the discrimination.
No, you’ve been demanding that we provide a rational basis just to supposedly win the argument by linking to the APA. But this argument isn’t about what might be the rational basis, it is about whether this is evidence of a homobigot judge or not.
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And you seem to think that Mississippi has a law that takes children away from gay parents, or that it automatically denies custody to gay parents. Mississippi has a checklist of a a number of factors to take into account when deciding custody, including one called “moral fitness”. The Chancellor can consider attitudes and lifestyle and sexual proclivities and preferences, and can decide that a heterosexual, married parent has WORSE moral fitness than an out lesbian. I’m sure that happens even in Mississippi. A Chancellor can also decide that a straight parent is just too liberal, perhaps they don’t do drugs or have sex, but they have staunch views that drugs and sex should be legalized and would bring up their child with those views. Meanwhile the other parent is, Donny McCluskin, say, and would bring up the child in a church and emphasize moral and religious values.
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Are you saying that the 14th means that “moral fitness” cannot be part of any state’s tests for custody? Or that family court judges cannot consider gay lifestyles to be detrimental to moral fitness? Even if both parents live identical lives, but one is gay, are you saying that a court should not be able to prefer straightness?
…I have made no reference to the APA–any of them for that matter (there are more than one).
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Still no rational basis.
Moral fitness is not discrimination, a judge can make that determination and use their own judgement. No one is getting ruled out for being gay.
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What is your point? That judges should have to award children to whichever parent is more gay?
For example, G.L.c. 119 Sec. 23B only provides for services to the mothers of children born out of wedlock, but not their fathers.
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Immigration law treats the “rights” and duties of the mothers of children born out of wedlock differently than fathers – this was held to be constitutional.
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Only “illegal” discrimination is barred.
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And what prejudices will be upheld and which struck down does change over time. Compare Plessy v. Ferguson with Brown v. Board of Education.
…what is your proposed “rational basis” for the discrimination in this case.
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Stop BSing us. Put up a proposed “rational basis.”
This thread is about whether the judge should be kept off the bench for this opinion. There must be more evidence than this that the judge is a homobigot. We have no idea what the rational basis is, we don’t even know how the law reads, the law isn’t even under scrutiny, it wasn’t the reason this case was decided the way it was. To reverse this case for the reason that it happens to be a custody case that went against a lesbian wouldn’t even have “struck down” the practice (law?) of taking orientation (or does the law say lifestyle?) into account in custody cases. The Supreme Court had already ruled that it was constitutional.
…the homobigot can stay on the Mississippi state supreme court for as long as the homobigots in Mississippi want to elect him. But, apparently you are unaware that he doesn’t have a right to a lifetime appointment to the federal appeals court bench.
…since you have been unable to articulate a “rational basis” for the anti-gay discrimination, that you have no “rational basis” for the anti-gay discrimination. I do believe that the point should be clear. The fag-bashing concurring opinion, which is what Southwick signed onto, was bogus.
…but then there is Lawrence v. Texas. Romer is not the only pony in the barn.
…You’re correct, but Lawrence (2003) was after the cited case from Mississippi (2001), which is why I haven’t mentioned it.
That paragraph that offends you actually says the same thing that Lawrence said two years later: “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.” Lawrence makes no mention of custody consequences, but in fact it takes pains to point out that “The present case does not involve minors.”
This case had nothing to do with the mother’s right to be a lesbian.
This case had nothing to do with the mother’s right to be a lesbian
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Right to be a lesbian? What kind of bone is your head made of?
Yeah, her right to be a lesbian, to actually engage in what it means to be a lesbian. That was what Lawrence found was a right (in privacy of your own home, but never mind that). The concurring opinion (which was only joined by this judge, not actually written by him) went directly to this difference:
Unfortunately, gender and its interaction with custody law is very messy, with some areas impacted by federal statutes and federal case law decisions. Other areas of “gender and custody” law are, in fact, at this time totally subject to state constitutions, statutes, and judicial decisions.
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Here is a starter set of examples:
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http://findarticles….
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http://query.nytimes…
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http://www.divorceso…
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So, it could be that the stalled “Equal Rights Amendment” could have mandated equal treatment for unwed fathers. We will never know. But as to this judge, who is up for confirmation, a lifetime appointment is a long long time to impact people’s lives.
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See:
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http://historymatter…
It’s something new. Only been around for a few weeks.
…please feel free to do so. Don’t try to divert the sense of the topic in the post in a comment thread. Your comment was absolutely irrelevant.
It’s all about the rational basis. The courts do sometimes (Lawrence, Loving) say that the legislature didn’t have a rational basis and were acting with animus or invidious discrimination, and so they “strike down” the law as violating due process, but it is always specific to the law in question – they haven’t said that there can never possibly be a rational law that discriminates, because there can be. The 14th doesn’t mean that the state is powerless to make policies and laws to promote the society it prefers, even if those laws affect one class more than another.
…had nothing to do with rational basis, it had to do with compelling state interest (see comment above). The Court held that the only proposed justification for Virginia’s anti-miscegenation law was a proposed religious one, which was insufficient under the Constitution.
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Lawrence was based on the 5th amendment’s (as applied to the states through the 14th amendment) liberty interest.
forgive my quick posting, the formatting was poor. I put the block quote in there because I thought it was important to see the actually language of the opinion. And I did provide a link to the wiki page which had links to the decision and other documents. (I think the Keller dig was unneeded).
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raj, my whole point is that the decision was based on the good of the child. And the choices were an apparently stable father or possibly unstable mother not a straight guy versus a lesbian. Although, straight vs. lesbian was one of the many factors considered. As I said upthread, I think that is a legitimate point if you are considering what is best for the child.
here is the wikipedia entry for the judge, as provided above.
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And if you go down to references, you will see the link to the pdf for the opinion.
…I’ve skimmed the opinions, but haven’t studied them. At first glance, it appears that the judge signed onto a concurring opinion that addressed issues that had nothing to do with the case.
[why tie up the switchboard?]
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Senator Kennedy
(202) 224-4543
(617) 565-3170
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Senator Kerry
(202) 224-2742
(617) 565-8519
(508) 677-0522
(413) 785-4610
After reading the comments in this thread, I was inclined to think that this plea was little more than a special interest attack on a judge doing his or her job correctly.
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After reading the actual decision in question, it seems that your argument against confirmation of this judge is well-founded.
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The decision relates to the custody of the child of an unmarried couple. Mother, when pregant, leaves father and enters into a lesbian relationship. She has a succession of live-in lovers. She intends to move to start a new business, but has no plans whatsoever for the care of her child: she doesn’t know where they will live, where the child will go to school, or anything else of the “basics” of childcare. Father, on the other hand, remarries and has established a stable homelife for the child.
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Miss. law allows the sexual orientation of the parent to be a factor, but not THE factor, in making custody determinations. Like most states, the standard is the best interest of the child. Based on the facts, dad should have custody regardless of the mother’s choice of romantic partner.
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The main opinion essentially states this. That would be enough to affirm the custody decision and end the case. If that were all there is, I would contend that this argument for non-confirmation is a non-starter.
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But no, there is a concurring opinion. The concurring opinion focuses on Missippi’s avowed public policy against gay parenting: Under Mississippi law, gays may not adopt children, ever. Mississippi has criminalized “the detestable and aboninable crime against nature.” Etc. In essence, the concurrence goes further the state supreme court had, finding that homosexuality alone ought to disqualify a custody contestant. The remarkable thing is that, as outlined above, the case was not an “all other things being equal” case. There was plenty of reason to deny custody other than the sexual orientation of the mother. So the concurrence is purely gratuitous, and your federal court nominee signed on to this concurrence.
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It is because of Southwick’s signing that concurrence that the charge of bigotry sticks.
…on point in this issue. It was his signing on to the totally anti-gay concurring opinion that calls into question his judicial temperament.
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It may surprise some around here, but I had little objection to Judge Roberts elevation from the 4th circuit to the US Supreme Court. I’ve read some of his opinions from the 4th circuit, and he seemed to be a workmanlike judge–unimaginative, but workmanlike, and I’ll take workmanlike over imaginative.
the Mississippi judge who signed an opinion that said being gay was an acceptable reason to have your children taken away
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Is this really what the opinion said? It said that she should know that Mississippi policy says that “her rights to custody of her child may be significantly impacted.” But there is no law or opinion that says that being gay means that you can’t raise children. Being an airplane pilot could have significant impact on custody. Living with an opposite sex lover could have significant impact. Anything could have significant impact on custody, there is nothing off the table when deciding custody.
I’ve updated the title of the diary to reflect the testimony of several senators. It seems that Mr Southwick may be catholic in his prejudices. Story here. Sorry, I don’t have time today to dig up actual quotations from cases.
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And I’d just like to point out that both Feinstein and Lieberman support this guy’s nomination. The capacity of some “democrats” to overlook little things like bias is stunning. Shame on them and the democrats who keep them in office.
the final vote isn’t up yet, but here is the vote on the cloture motion.
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Is Kennedy still out sick?
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Feinstein & Lieberman voted with the republicans. Surprised?
U.S. Senate Roll Call Votes 110th Congress – 1st Session as compiled through Senate LIS by the Senate Bill Clerk under the direction of the Secretary of the Senate
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Vote Summary
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Question: On the Nomination (Confirmation Leslie Southwick, of Mississippi, to be U.S. Circuit Judge )
Vote Number: 393 Vote Date: October 24, 2007, 11:28 AM
Required For Majority: 1/2 Vote Result: Nomination Confirmed
Nomination Number: PN2
Nomination Description: Leslie Southwick, of Mississippi, to be United States Circuit Judge for the Fifth Circuit
Vote Counts: YEAs 59 NAYs 38 Not Voting 3
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Grouped By Vote Position
YEAs —59
Akaka (D-HI)
Alexander (R-TN)
Allard (R-CO)
Barrasso (R-WY)
Bennett (R-UT)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Byrd (D-WV)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Coleman (R-MN)
Collins (R-ME)
Conrad (D-ND)
Corker (R-TN)
Cornyn (R-TX)
Craig (R-ID)
Crapo (R-ID)
DeMint (R-SC)
Dole (R-NC)
Domenici (R-NM)
Dorgan (D-ND)
Ensign (R-NV)
Enzi (R-WY)
Feinstein (D-CA)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hagel (R-NE)
Hatch (R-UT)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Johnson (D-SD)
Kyl (R-AZ)
Lieberman (ID-CT)
Lincoln (D-AR)
Lott (R-MS)
Lugar (R-IN)
Martinez (R-FL)
McCain (R-AZ)
McConnell (R-KY)
Murkowski (R-AK)
Nelson (D-NE)
Pryor (D-AR)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Smith (R-OR)
Snowe (R-ME)
Specter (R-PA)
Stevens (R-AK)
Sununu (R-NH)
Thune (R-SD)
Vitter (R-LA)
Voinovich (R-OH)
Warner (R-VA)
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NAYs —38
Baucus (D-MT)
Bayh (D-IN)
Biden (D-DE)
Bingaman (D-NM)
Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Clinton (D-NY)
Durbin (D-IL)
Feingold (D-WI)
Harkin (D-IA)
Inouye (D-HI)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Landrieu (D-LA)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
McCaskill (D-MO)
Menendez (D-NJ)
Mikulski (D-MD)
Murray (D-WA)
Nelson (D-FL)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Rockefeller (D-WV)
Salazar (D-CO)
Sanders (I-VT)
Schumer (D-NY)
Stabenow (D-MI)
Tester (D-MT)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)
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Not Voting – 3
Boxer (D-CA)
Dodd (D-CT)
Kennedy (D-MA)