One Judge’s Free Speech Rights

Connie Glen Wilkerson claims he doesn’t hate gays, just opposes their lifestyle

Over two years after making remarks that gay and lesbian activists characterized as virulently homophobic, a Mississippi judge received word last week that the state high court had decided that the First Amendment to the United States Constitution protected his speech.

Democratic Judge Connie Glen Wilkerson of George County, situated in the state’s southeastern corner, fought a decision by the Mississippi Commission on Judicial Performance to fine him $150 and public rebuke him for remarks he made regarding legislation on same-sex relationships and other legal rights.

In press accounts, Wilkerson, 65, has always maintained that his remarks were made as a private citizen, not as a judge, and that he was fully entitled to continue serving as a justice of the peace in Lucedale. Wilkerson never went to law school and he is not an attorney, but nevertheless he handles arraignments on criminal charges in a rural county of Mississippi and as such wields enough power to be a local figure of some importance.

In March of 2002, the national press reported about the California case of a lesbian victim of a dog attack, whose partner filed a wrongful death lawsuit. The case inspired state lawmakers to pass legislation that recognized surviving partners’ rights to sue.

Wilkerson wrote to his local weekly newspaper, the George County Times, on March 23, 2002. “I got sick on my stomach today as I read the (AP) news story on the Dog attach [sic] on the front page of THE MISSISSIPPI PRESS and had to respond!” Wilkerson went on to refer to the Bible and wrote “GOD in Heaven is not pleased with this and I am sounding the alarm. . .” He bemoaned the recent measures passed by the Legislatures of Hawaii, Vermont and California to allow “gay partners the same right to sue as spouses or family members.” Then, in what has been oft-quoted as Wilkerson’s most egregious comment, he wrote: “In my opinion gays and lesbians should be put in some type of mental institute instead of having a law like this passed for them.” The newspaper printed Wilkerson’s letter, which he signed “Bro. Connie C. Wilkerson,” an apparent reference to his title in a local church.

Several weeks later, a local radio station ran a spot in which snippets from a conversation Wilkerson had with a PRM news producer were interspersed with an announcer’s voice outlining the nature of Wilkerson’s letter to the newspaper. Disjointed as they are, Wilkerson’s spoken comments, as read from a transcript, seem to indicate that perhaps Wilkerson knew his written comments would stir up some controversy and call into question his probity as a judge. A part of the transcript reads: “ANNOUNCER: Judge points out he did not sign the letter as a judge. JUDGE: I just signed it as a red blooded American, you know, Christian man. The Christian people need to take a stand as well as anybody else, you know. ANNOUNCER: But Judge thinks his comments are separate from his role as a judge. JUDGE: I’m not talking about it as a judge, you know. I try to be just as fair as I can in the courtroom. In fact, I’d say I’m overly fair, you know. You might could run that by the people in George County.”

Wilkerson did not want to clarify his remarks on the telephone. In fact, he slammed down the telephone without commenting.

However, the George County Democratic chairman, Clem Parker, did speak on behalf of Wilkerson. Parker said that he and Wilkerson “nearly grew up with each other” and that as for Wilkerson’s judicial bearing, “As far as being in court, that man would give a lesbian or a gay man the fairest hearing they would ever have and I will vouch on that myself.”

Because the state judicial ethics commission lost its bid to sanction Wilkerson, and the judge won his appeal before the state’s highest court, the only other recourse is for the commission to appeal to the United States Supreme Court, a move the executive director of the commission, Luther “Brant” Brantley III, said would be voted on by the seven-member board at next month’s meeting. In the meantime, said Brantley, any gay or lesbian litigants who appear before Wilkerson, including any number of citizens charged with criminal offenses, should “weigh heavily whether or not to petition for the judge’s recusal.”

Brantley clearly considers Wilkerson’s remarks to be worthy of sanction. The fact that the comments were made over two years ago and that Wilkerson has remained moot on gay issues since then, pending his appeal before the high court, would seem to indicate that perhaps Wilkerson’s homophobic remarks were blown out of proportion. Even the main LGBT group in Jackson, Equality Mississippi could not be reached for a comment.

Writing for the majority, Justice Jess H. Dickinson categorically dismissed the notion that Wilkerson’s remarks impugned his ability to serve as a judge and firmly rooted the decision in First Amendment precedents. “Nevertheless, because we are convinced that the statements made by the judge in this case constitute religious and political/public issue speech specially protected by the First Amendment…” Dickinson then made what some might consider an odd conclusion, but what others might call simply common sense reasoning. “[B]ecause we are further persuaded that in some cases. . . forced concealment of views on political/public issues serves to further no compelling governmental, public or judicial interest, we are compelled to reject the recommendation of the Commission and hold that—under the particular facts of this case—sanctions are constitutionally impermissible.” In other words, the court stated that it was better to know how Wilkerson stood on certain issues, such as rights for same-sex couples, than not to know, and that in fact, litigants were better off knowing, than if Wilkerson’s views were under “forced concealment.”

Four other justices joined Dickinson in that opinion.

The two other justices, including the dissenting opinion’s author, George C. Carlson, Jr., made it perfectly clear they disagreed with the majority’s First Amendment rationale, and were not furthering a gay rights stance. “One point must be unmistakably clear at the outset. This is not a gay-rights case,” wrote Carlson. Later on, Carlson wrote that “A judge cannot wear one face as a judicial officer and another as a private citizen, since the citizenry will always appraise the integrity, independence and impartiality of the judiciary by what they see in all public and private activities of out judges,” an apparent retort to the “forced concealment” argument.

Ironically the state’s code on judicial ethics was amended in 2002, shortly after Wilkerson’s letter to the George County Times, to include sexual orientation, along with race, gender, creed and other categories, as a subject judges should refrain offering opinions about, lest they call into question their impartiality. However, the majority ruled that since the letter was written before the ethics amendment took effect, Wilkerson could not be sanctioned for disparaging gay people.

Two legal scholars offered insight on the state Supreme Court decision. Geoffrey Stone, a law professor at the University of Chicago Law School, is a noted First Amendment expert with a forthcoming book on free speech in a time of war, “Perilous Times.” “In general, the rights of public employees to engage in various forms of speech is broadly defined,” said Stone, who acknowledged that the Mississippi Supreme Court decision was conditioned by societal norms particular to that state. “Other states would clearly decide to discipline such a judge,” said Stone.

David Garrow, a legal historian at Emory University’s Law School, who won the Pulitzer Prize in 1987 for his biography of Rev. Martin Luther King, Jr., “Bearing the Cross,” said that electoral politics plays a role in the Supreme Court decisions of certain Southern states, including Alabama, Texas and Mississippi, where high court justices are elected, forcing justices to consider voters’ positions on certain issues when handing down decisions. “If this gentleman had made the same comments about what he considered the inherent inferiority of women or people of color, would the Supreme Court have come to the same analysis?” Garrow asked, who asserted that the dissenting justices had made a compelling argument that Wilkerson was unfit to hear a case involving gay people because he lacked impartiality.

However, Stone argued that once not seated behind the bench, a judge enjoyed wide latitude, as did other private citizens, to voice his opinions on social matters and that the state needed to provide a compelling case to curtail his free speech rights. “Clearly, the closer the speech act is to the matters under consideration, the greater the government’s regulation is of the public employee’s conduct,” said Stone.

When asked if he knew of any gay and lesbian people in the county, Parker, the Democratic chairman, said that it was rumored that a local businessman was gay, “but he’s not open about it.” Parker, who strongly supports his party’s presumptive presidential nominee, Sen. John Kerry, said he opposes same-sex marriage because the Bible prohibits it, but that if two men or women decide to spend their lives together that is their decision. “I am not aware of any gay couples petitioning for marriage down here,” Parker said.

Wilkerson never spoke on the record, but a remark he made to the radio producer seems to sum up his viewpoint: “God bless you, brother. I’m sorry, you know, that if I’ve caused anybody any hard feelings, you know, but I think in this country we need to be able to express ourselves, you know. I don’t care who he is or what he is, you know, but—and when we can’t do it we’re really in trouble, you know.”

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