The Human Rights Campaign recently joined key civil rights and women's
rights groups in opposing the nomination of Michael McConnell for the
Tenth Circuit U.S. Court of Appeals. McConnell, a professor at University of
Chicago Law School, has written disturbing law briefs and articles that
cause concern that he will not fairly enforce federal civil rights laws or
safeguard the separation of church and state, says HRC.
"McConnell's view that gay rights conflict with religious morality raises
strong questions about his ability to distinguish intolerance from religious
virtue," said HRC Political Director Winnie Stachelberg. "He seems to think
that people can discriminate with impunity, as long as they justify it with
religion. It is obvious that his dangerous positions make him unfit to
serve."
McConnell's role in the Boy Scouts of America v. Dale lawsuit
demonstrates a hostility to gay, lesbian, bisexual and transgender rights.
McConnell was a primary drafter of the Boy Scouts' brief in that case, which
argued that the Boy Scouts could exclude an otherwise qualified gay troop
leader from serving due to his sexual orientation. In a brief submitted to
the Supreme Court, McConnell argued that the Scouts' decision to exclude
James Dale was justified by their moral code, which, according to McConnell,
was incompatible with homosexuality. The McConnell brief suggests that the
Scouts' policy of excluding gay men is comparable to its exclusion of
alcohol or substance abusers from leadership positions.
"But prevailing in their[The Boy Scouts] constitutional battle might
prove to be a Pyrrhic victory," McConnell warned at a June 2, 2000
colloquium on evangelical civic engagement. "Unless the Boy Scouts can win
public sympathy and not be seen as irrationally bigoted, they could become
cultural pariahs and viewed in the same way as 'the Nazis in Skokie.'
"The Scouts would then face overwhelming pressure to change their policies
regarding homosexuals," continued McConnell. "On the legal front, moreover,
the Scouts' traditional ties with schools, national parks, and the military
are in jeopardy. Scout supporters must go on the offensive, to highlight the
intolerance of gay-rights activists."
The Dale brief's position that discrimination against gay persons is a
"moral" decision justified by religious principle echoes his other work.
"If the gay rights position is correct, then the teachings of a number of
venerable and beloved religions and philosophical traditions – and maybe the
Bible itself – must be rejected as bigoted and ignorant. If these teachings
are correct, however, then the gay rights movement is committed to the
defense of immorality."
Based on these arguments, McConnell said in a National Public Radio
interview in 1996 that he opposes the Employment Non Discrimination Act, a
federal bill that would prohibit employment discrimination based on sexual
orientation.
"This would be the only civil rights law which is preventing
people from hiring or firing on the basis of a moral judgment," said
McConnell on the NPR show "Morning Edition".
Another time McConnell said, "At bottom, the problem is that
anti-discrimination statutes label anti-homosexual feeling as
'discrimination' – akin to racism. The law thus contains an approval of
homosexual behavior."
McConnell has consistently argued that all employers, places of
accommodation, and providers of housing should be permitted to discriminate
based upon "moral" objections to homosexuality. Making this argument, he
opposed ENDA. In his opinion, decisions to fire, evict, and exclude people
because of sexual orientation are moral judgments that are "fair game in the
marketplace."
Further, he views whether a group of people should be free from
discrimination as a popularity contest. The more public support a group has,
he suggests, the more worthy they are of being covered by
anti-discrimination laws."
"… these provisions [gay rights]should not be part of general civil rights
laws, which cover forms of discrimination widely recognized in our society
as reprehensible. If sexual orientation is placed in the same category with
racist or sexist action, it inevitably communicates the message that moral
disapproval of homosexuality is of the same ilk.
Additionally, on the issue of same-sex relationships, McConnell has
stated, "The essential weakness in the 'equal access' claim for same-sex
marriage is that, contrary to rhetoric, homosexual couples are not being
discriminated against. Most combinations of human beings are ineligible for
matrimony. Groups of more than two cannot 'marry"…Rather heterosexual
couples are singled out, among all the various groups and combinations of
human beings, for the special benefit and privilege of marriage."
"This view completely ignores the fact that same-sex couples are
denied more than 1,000 rights and responsibilities that federal law confers
upon married couples," said Stachelberg. "In fact, a heterosexual couple
married for less than one hour has more rights and responsibilities under
law than a gay couple that has been together for over 20 years, whom the law
treats as strangers.
"We also share the apprehension of our allies in the civil rights community
that McConnell's stances on church-state separation, reproductive rights,
and voting rights are dangerous and unacceptable in a free nation," added
Stachelberg.
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