The nomination of conservative legal scholar Michael W. McConnell to a seat on the 10th Circuit U.S. Court of Appeals sitting in Denver has generated both opposition and support within the gay community. The nomination was made over a year ago and the Senate Judiciary Committee held a confirmation hearing Sept. 18.
McConnell played a leading role in drafting the appeal to the Supreme Court of the case of the Boy Scouts of America v. Dale. The Court ruled 5-4 that the Scouts, as a private organization, had the right to discriminate against homosexuals.
However, neither that case nor other gay issues arose during the Senate hearing.
McConnell is a professor of law at the University of Utah and prior to that taught at the University of Chicago. He clerked for two highly regarded and influential liberal judges, Chief Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and U.S. Supreme Court Justice William J. Brennan Jr. He is an expert on constitutional law, particularly with regard to religion.
Many feminist groups oppose McConnell because of his personal opposition to abortion. Americans United for Separation of Church and State challenges his leading role in breaking down that separation. While many activist groups oppose him, an unusually broad spectrum of conservative to liberal legal scholars supports the nominee. The American Bar Association has found him "well qualified" to serve on the court.
The Senator's questions at the hearing focused on abortion and religion. McConnell said that as a judge, he would accept the legal principles of Roe v. Wade as outlined by the Supreme Court. He discussed the difference between the role of a professor, which is to stimulate thinking, and that of a judge, which is to apply the law as interpreted by the Supreme Court.
One exchange at the hearing may have an impact on gaining equal marriage rights for gays. McConnell was asked about polygamy, simultaneous marriage to more than one person. He said that the state did not care if a person had five partners, but if people chose to put it into a religious context of marriage, the state then says no. McConnell found that a contradiction and urged the state to stay out of people's lives.
"McConnell's role in the Dale lawsuit demonstrates a hostility to gay, lesbian, bisexual and transgender rights," the Human Rights Campaign ( HRC ) declared in a statement opposing the nomination. It also took him to task for his opposition to the Employment Non-Discrimination Act ( ENDA ) , a leading legislative goal for HRC.
"This would be the only civil-rights law which is preventing people from hiring or firing on the basis of a moral judgment," McConnell said during a radio interview on National Public Radio in 1996. Separately he argued that passage of ENDA "contains an approval of homosexual behavior."
"McConnell's view that gay rights conflict with religious morality issues raises strong questions about his ability to distinguish intolerance from religious virtue," said Winnie Stachelberg, HRC's political director.
"He seems to think that people can discriminate with impunity, as long as they justify it with religion."
Evan Wolfson has a more nuanced but no less fervent opposition to McConnell. He was the lead attorney with the Lambda Legal Defense and Education Fund that defended Dale, and Wolfson now leads the Freedom to Marry Collaborative working for equal marriage rights for gays.
"I think that [ McConnell ] thinks that he is reaching objective opinions about what he believes the proper balance in society ought to be, what the proper constitutional law ought to be. That he thinks of them as not suffused with bigotry, but genuinely a product of sincere, rigorous thought.
"But I also think the end products of his views are ferociously antigay. It's too easy for him to confuse where his religious beliefs take him with an objective product of intellectual inquiry."
"Therefore I question as to whether he could ever set that aside as a judge and not impose his personal predilections and outcomes on the law, even though he may think, in good faith, that he is doing some kind of true intellectual distancing."
For Wolfson, McConnell's "reasoning comes out extremely conveniently where his religious doctrine takes him, to the detriment of our equal rights, and beyond that, to the detriment of the proper protective balance between church and state, a balance that protects both church and state, and certainly protects minorities."
A few days before the hearing, Log Cabin Republicans was unsure if it would endorse McConnell, said executive director Rich Tafel. One criterion was a meeting with the nominee to discuss some reservations they had. The Department of Justice arranged that meeting.
Tafel said it was off the record, as is standard for all nominees during the confirmation process, so he did not feel comfortable discussing details of their conversation. But he left assured that McConnell was not a homophobe and that he would enforce the law fairly. And McConnell asked Tafel to be his guest the next day at the Judiciary Committee hearing.
Log Cabin Republicans subsequently endorsed McConnell. "He's a true civil libertarian who adheres to principles regardless of politics. We need more judges, not less, like him in America," said Tafel in a written statement.
He called Dale "a tough case. The Boy Scouts are wrong in banning gay leaders from their ranks. However, freedom of association is a cherished right within the gay community. We also don't want to be told who we must accept as leaders within our own organizations."
Log Cabin cited McConnell's defense of the right of a gay student alliance to meet in Utah public schools, his published opposition to state sodomy laws, and his opposition to the impeachment of President Bill Clinton as examples of his principles of fairness.
Tafel also had encouraged a briefing of the gay press on the nominee by a senior member of the Department of Justice. The on-again, off-again briefing ultimately did not take place because of administrative glitches.
Tafel's goal in working with the administration is to have the gay community "completely in the loop" on judicial nominations, particularly when one arises for the Supreme Court.
Debate over McConnell is taking place within a broader context of all judicial nominations and an increasingly ideological confirmation process.
As the Washington Post editorialized on another nominee Sept. 13, "Rejecting a qualified nominee because of this sort of ideological disagreement sends a chilling message to judges everywhere ... . It also sends a message to the public that the confirmation process is not a principled exercise but an expression of political power. Both messages are corrosive to the ideals that must animate a first-rate judicial branch."
People For the American Way also opposes McConnell, saying he is "unrelentingly hostile to a constitutional right of reproductive choice and privacy."
