Bush Judicial Nominees Attacked on Gay Record
Activists criticize records of Pryor, Mosman, Holmes
Voice, April 25, 2003
500 Lovett, Suite 200, Houston, Texas 77006-3942
By Lou Chibbaro Jr.
Less than one month after winning Senate confirmation for
a federal appeals court judge who compared homosexuality to cockfighting and
bestiality, President Bush has nominated three more judges whose views are
being criticized by watchdogs as anti-gay.
One of the nominees petitioned the U.S. Supreme Court to
uphold anti-gay sodomy laws in Georgia and Texas. Another said same-sex
relationships could never be as legitimate as a heterosexual marriage and that
a wife “is to subordinate herself to the husband.”
The third, who is expected to be formally nominated next
month, is a former law clerk for the U.S. Supreme Court who lobbied behind the
scenes to uphold Georgia’s anti-gay sodomy law in the landmark 1986 case of
Bowers vs. Hardwick.
Officials at Alliance for Justice, a progressive watchdog
group that monitors important judicial appointments, said the latest two
nominees—and a third expected to be nominated next month—bring to seven
the number of Bush’s federal judicial appointees who are considered to have
records hostile to gay civil rights. The Senate so far has confirmed two of
The president on April 9 nominated Alabama Attorney
General Bill Pryor to a seat on the U.S. Court of Appeals for the 11th
Circuit, which has jurisdiction over Alabama, Georgia and Florida. In 1996, in
his capacity as then deputy attorney general of Alabama, Pryor co-authored an
amicus, or friend of the court, brief supporting Colorado’s anti-gay ballot
initiative in the U.S. Supreme Court case of Romer vs. Evans.
The ballot measure amended the Colorado state
constitution to prohibit local governments there from enacting laws protecting
gays from discrimination. Shortly after the Supreme Court struck down the
Colorado amendment, Pryor delivered a speech before the conservative
Federalist Society calling the high court’s decision “antidemocratic and
insensitive to federalism.”
Last year, Pryor successfully defended an Alabama law
banning sodomy between unmarried adults in a challenge to the law in the state
A short time later, he wrote a strongly worded amicus
brief declaring Alabama’s support for the Texas sodomy law in the Supreme
Court case of Lawrence vs. Texas, which the court is expected to decide in
June or July. The Texas sodomy law bans only same-sex sodomy. In his brief,
Pryor urges the Supreme Court to uphold the Texas law on grounds that the
Constitution does not protect gays from engaging in consenting, intimate
The Texas law “does not criminalize petitioners’
sexual orientation, which may or may not be a matter of choice,” Pryor wrote
in his brief. “Rather, the Texas anti-sodomy statute criminalizes
petitioner’s sexual activity, which is indisputably a matter of choice.”
Granting a constitutional right to choose one’s partner
and whether or how to “connect sexually,” Pryor wrote, “must logically
extend to activities like prostitution, adultery, necrophilia, bestiality,
possession of child pornography, and even incest and pedophilia (if the child
should credibly claim to be ‘willing’).”
The president submitted Pryor’s nomination to the
Senate on April 9, eight days after the Senate confirmed Bush appeals court
nominee Timothy Tymkovich, the former solicitor general of Colorado, who has
compared homosexuality to cockfighting, bestiality, prostitution and suicide.
Mosman a ‘conservative ideologue’
Pryor’s nomination also comes at a time when Bush is
poised to nominate Michael Mosman to the United States District Court in
Oregon. Mosman is a former Supreme Court law clerk to the late Justice Lewis
According to two authoritative books on the Supreme
Court, one by lesbian journalists Deb Price and Joyce Murdoch, Mosman wrote a
series of strongly worded memos to Powell in 1986 urging Powell to vote to
uphold the Georgia sodomy law.
In a 5–4 decision, the court upheld the
Georgia law, enabling the court to issue a stinging opinion declaring that
states have the right to arrest and imprison consenting adults who engage in
sodomy in the privacy of their homes.
Powell disclosed after he retired from the court that he
initially was leaning toward voting to overturn the Georgia sodomy law but
changed his mind at the last minute and voted with the court’s conservative
faction to uphold the law.
In their 2001 book, “Courting Justice: Gay Men and
Lesbians v. The Supreme Court,” Price and Murdoch reported that Mosman, a
conservative ideologue and Mormon from Idaho, warned Powell in a memo that
overturning the Georgia statute could expand constitutional protections for
privacy in a way that would put in jeopardy traditional definitions of
marriage, family and procreation.
Bush has yet to formally submit Mosman’s name in
nomination before the Senate. But Senator Ron Wyden (D-Ore.) told the
Oregonian newspaper that White House officials informed him they were
conducting a final background check on Mosman before the president announces
him as his choice for the post of United States District Court Judge for the
District of Oregon.
The final of the latest three appointees singled out by
Alliance for Justice for having anti-gay records, is James Leon Holmes, whom
Bush nominated earlier this year to the U.S. District Court for the Eastern
District of Arkansas.
In a March 25 letter to Senators Orrin Hatch (R-Utah),
chair of the Senate Judiciary Committee, and Patrick Leahy (D-Vt.), the
committee’s ranking Democrat, the group said it has “grave concerns”
about Holmes’ fitness for such a position.
Nan Aron, the Alliance for Justice president, stated in
the letter that Holmes is a “zealous” advocate for doing away with a
woman’s right to abortion and has made “extreme statements” on the issue
of separation of church and state, gay rights and gender equality.
Aron pointed to a joint article Holmes wrote with his
wife asserting that same-sex relationships should not be regarded as having
“equal legitimacy with heterosexual marriage.” In the same article, Holmes
and his wife also expressed strong opposition to the ordination of women to
the Catholic priesthood and declared, “The wife is to subordinate herself to
the husband, and the woman is to place herself under the authority of the
“Holmes’s views on gender equality and gay rights
cast into doubt his ability to provide equal justice to women and gays and
lesbians who would appear before him,” Aron said in his letter.
In addition to confirming the Tymkovich nomination on
April 1, the Senate on March 13 confirmed Jay Bybee to the U.S. Court of
Appeals for the Ninth Circuit. Bybee has argued that gay civil rights laws
amounted to government-sponsored “preferences” for homosexuals.
The nomination of two others whom the Alliance for
Justice claims have anti-gay records—Jeffrey Sutton and Charles Pickering to
federal appeals court seats—remain pending before the Senate.
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