State high court invokes First Amendment to defend homophobe
ARTHUR S. LEONARD
In a 5-2 decision that drew a vigorous dissent, the Mississippi Supreme Court ruled on July 1 that a state trial judge, who made public statements questioning the sanity of gay people, may not be sanctioned under the state’s judicial ethics code, because his remarks are protected as political and religious speech under the First Amendment.
The ruling rejected a recommendation from the Mississippi Commission on Judicial Performance, which found that a “letter to the editor” and a follow-up radio interview by George County Justice Court Judge Connie Glen Wilkerson violated half a dozen provisions in the state’s judicial ethics code as well as a provision of the state Constitution, which charges judges with refraining from conduct that will bring their judicial office into disrepute.
Wilkerson’s outbursts were a reaction to news reports about the California Legislature’s decision to authorize same-sex partners to bring wrongful death lawsuits, just as legal spouses may do, for the injury they suffer as a result of harm to their partners. California was reacting in response to a notorious case involving a surviving lesbian partner’s lawsuit against the keepers of pit bull dogs that had mauled her partner to death.
Wilkerson wrote a letter to a local newspaper, stating that he “got sick on my stomach today” when he read about this legislation, asserting: “AMERICA IS IN TROUBLE!” and stating as part of his diatribe, “In my opinion gays and lesbians should be put in some type of a mental institute instead of having a law like this passed for them.” The newspaper published the letter, resulting in a radio station calling Judge Wilkerson and interviewing him on the air.
During the radio interview, the reporter repeatedly asked Wilkerson about how these statements would affect his work as a judge, but Wilkerson insisted that he had not signed the letter as a judge, but just as a “red blooded American, you know, Christian man. The Christian people need to take a stand as well as anybody else, you know.”
Outraged gay Mississippians brought these comments to the attention of Lambda Legal, which filed ethics charges against Judge Wilkerson with the Commission on Judicial Performance. After an investigation, the Commission determined that Wilkerson’s comments deserved sanctions, but the Mississippi Supreme Court has decided otherwise.
What was particularly interesting about the opinion for the court by Justice Jess H. Dickinson was the notion that Wilkerson’s comments were actually useful for lesbians and gay men who might find themselves in his court. “Whatever state interest the Commission may find in preventing judges from announcing their private views on gay rights would conflict with, and be outweighed by, the more compelling state interest of providing an impartial court for all litigants,” wrote Dickinson, “including gays and lesbians. Allowing – that is to say, forcing – judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing that they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.”
Dickinson observed that Judge Wilkerson “will doubtless face a recusal motion from every gay and lesbian citizen who visits his court. We can predict that the rationale for the motions will be that Judge Wilkerson is prejudiced against gays and lesbians, and he has a preconceived belief that their mental capacity as a class of people is inferior to society in general.” The court did not, however, take a position on whether ultimately Wilkerson would have to recuse himself from all litigation involving gay people.
In passionate language, Justice George C. Carlson, Jr. dissented. Justice James E. Graves, Jr joined him. Carlson, after insisting that this case was not about “gay rights,” seemed to feel that the majority had missed the point. The issue wasn’t just whether Judge Wilkerson was personally biased, or had created the appearance of being biased, but rather whether his conduct would lessen respect for the judiciary. Quoting an earlier decision by the court, he pointed out “the primary purpose of judicial sanctions is not punishment of the individual judge but ‘to restore and maintain the dignity and honor of the judicial office and to protected the public against future excesses.’”
In his dissent, Carlson referred to a section of the judicial ethics code that governs jurists’ behavior. “Canon 2 charges all judges to avoid impropriety and the appearance of impropriety in all activities.” For judges to make biased remarks in public statements might tip off litigants that they should move for recusal, but, in Carlson’s view, judges should not be making biased remarks in any event, since it undermines the judiciary’s reputation for fairness.
Carlson also disagreed with the court’s conclusion that Judge Wilkerson’s comments qualified for the highest level of First Amendment protection accorded to comments on matters of public concern. “Although speech of today’s judge was supposedly directed to state legislation regarding same sex partnership, he also did not hide his views on his opinions of the homosexual population as a whole. I do not agree that this type of speech – the judge’s personal views regarding all homosexuals – relates to political and social community concerns. However, even if the judge’s speech is found to relate to political and social community concerns, this type of speech fails the second prong [of the First Amendment analysis that has been set forth by the U.S. Supreme Court] by ‘impeding the performance of the speaker’s duties,’” wrote Carlson.
Because the court’s decision was based in part on its interpretation of the First Amendment, it might be possible to frame an appeal to the United States Supreme Court. At press time, Lambda Legal had not yet announced whether it would pursue such a course.