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Southern injustice: the chief justice of Alabama calls homosexuality "an inherent evil," and a Mississippi judge says gay people should be institutionalized. Can equal justice be found south of the Mason-Dixon line? (Court).

Coming from the state's top jurist, the words of Alabama supreme court chief justice Roy Moore were extraordinary even for the Bible Belt. Adding his concurring opinion to the court's decision in a gay parent's custody case. in February, Moore stated that homosexuality is "an inherent evil, an act so heinous that it defies one's ability to describe it."

The "homosexual conduct of a parent," Moore asserted, is sufficient justification for denying him or her custody of a child; simply exposing children to such behavior "has a destructive and seriously detrimental effect." Homosexuality is "abhorrent, immoral, detestable, a crime against nature," Moore stated, and government has the power "to prohibit conduct with physical penalties, such as confinement and even execution."

The comments by Moore, who first gained notoriety as a circuit judge who insisted on hanging a plaque of the Ten Commandments in his courtroom, touched off a furor and demands for his resignation. But more broadly, his diatribe has helped raise this question: Can gay people find justice in the South?

While judicial prejudice appears everywhere, an overwhelming majority of cases infected with antigay bias come from Southern states, says Kate Kendell, executive director of the San Francisco-based National Center for Lesbian Rights.

"One of the very first questions we ask during an intake is where the person is calling from," Kendell says. "And when they say a Southern state, we know automatically that advocating on their behalf is going to be more difficult--solely because we will have a fair possibility of getting a judge who will be incapable of rendering an objective, open-minded ruling."

Just a few weeks after Moore issued his opinion, a Mississippi judge stole the spotlight from him. George County court judge Connie Glenn Wilkerson, in a letter to the local newspaper, wrote that he was sorry California had approved a law granting same-sex partners the right to sue for wrongful death. "In my opinion, gays and lesbians should be put in some type of a mental institution instead of having a law like this passed for them," he wrote.

New York City-based Lambda Legal Defense and Education Fund filed ethics complaints against both Moore and Wilkerson. In its Alabama complaint, the group noted that Moore based his opinion on his own interpretation of the Bible and asserted, "Impartiality ... requires that a judge set aside personal biases and beliefs, religious or otherwise." Says Hector Vargas, director of Lambda's Southern regional office: "Rather than displaying a fair and open mind ... the judge blindly condemns gay people and explicitly refuses to rule based on the actual evidence in a case."

Lambda's complaint against Wilkerson was fried jointly with gay rights advocacy group Equality Mississippi. "How can anybody say [gays] should all be put in mental institutions and yet be able to judge them fairly?" Lambda attorney Greg Nevins asks. "That does not make sense." Even though Wilkerson's comments were made outside his judicial activities, Nevins says they call "into serious question" whether the judge could decide cases impartially. Vargas adds that Lambda is "extremely concerned about the rash of antigay statements from judges," saying, "These kinds of statements make gays and lesbians feel that the justice system is closed off to them."

One of the most egregious examples of judicial prejudice, Kendell says, occurred in Pensacola, Fla., in 1995. Lesbian mother Mary Ward lost custody of her daughter to her ex-husband even though he had killed his first wife and had served eight years in prison. The judge said he wanted to give the girl a chance to live in a "non-lesbian world."

"I'm confident that if Mary Ward had lived somewhere other than the South, the case would have had a different outcome," Kendell says. "Any time you blend political conservatism with fundamentalist religious dogma, gay people are going to be in big trouble. And the South has that mix in lethal quantities in some corridors."

The events that took place after Moore rendered his opinion demonstrate the difficulty of getting antigay judges censured for such prejudice. The state's canons of judicial ethics say a judge should always act "impartially," avoiding "personal bias or prejudice concerning a party" to a case. And Moore's statements, says Vargas, "make it abundantly clear he is incapable of giving any lesbian or gay person in Alabama their fair day in court."

Nevertheless, the state's judicial inquiry commission dismissed complaints flied against Moore by Lambda and by Democratic state representative Alvin Holmes. The commission said it found "no reasonable basis" to charge a violation of judicial ethics. In addition, the Alabama Bar Association rejected an appeal by Wayne Sabel, a heterosexual Montgomery attorney, to seek Moore's removal from office; its executive director wrote that some members support Moore and that the group wouldn't take a stand "where opinions are divided."

The South, of course, is far from monolithic. Antigay prejudice is greatest in the rural areas, says Kendell, while there are "pockets of greater tolerance" in urban areas such as Atlanta, South Florida, and North Carolina's Raleigh-Durham-Chapel Hill region. Moreover, there is evidence of change: In its complaint against Wilkerson, Lambda was able to cite a new amendment to the Mississippi code of judicial conduct that bars judges from manifesting "bias or prejudice" based on race and other characteristics, including sexual orientation. The complaint was still pending at press time.

The Mississippi amendment is similar to a provision of the American Bar Association's model code of judicial conduct. That code, says Stephen Gillers, professor of legal ethics at New York University Law School, was amended in 1992 to include sexual orientation as one of the characteristics judges are required to refrain from expressing bias about. Since that time, Gillers says, "you see a marked increase" in judicial sensitivity to gay issues. Moore's opinion and Wilkerson's letter should disqualify either of them from sitting on cases involving sexual orientation, Gillers says.

Legal experts stress, however, that no region of the country is immune from antigay judicial bias. "The bench, overwhelmingly across the country, is made up of heterosexual older white men, many from a time and upbringing when it was OK to be openly antigay," says Jon Davidson, senior counsel in Lambda's Western regional office. Nevertheless, as Kendell points out, "the South stands out because there's such a wide swath of bias practiced against lesbians and gay men." And as long as groups like the Alabama judicial inquiry commission continue to allow judicial bias, she says, gay men and lesbians in the South can expect further injustice.

Freiberg also writes for The Washington Blade and the New York Post.
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Title Annotation:homophobia, southern style
Author:Freiberg, Peter
Publication:The Advocate (The national gay & lesbian newsmagazine)
Geographic Code:1U6AL
Date:Jun 11, 2002
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