Magazine article The Advocate (The national gay & lesbian newsmagazine)

Courting Controversy: George Bush's Latest Judicial Nominee Supports the Boy Scouts' Right to Discriminate but Opposes Antigay Sodomy Laws-So What Does That Mean for Us? (Election 2002 Aftershocks)

Magazine article The Advocate (The national gay & lesbian newsmagazine)

Courting Controversy: George Bush's Latest Judicial Nominee Supports the Boy Scouts' Right to Discriminate but Opposes Antigay Sodomy Laws-So What Does That Mean for Us? (Election 2002 Aftershocks)

Article excerpt

On the surface at least, Rich Tafel would seem to have little in common with Michael McConnell, President Bush's nominee for a seat on the powerful 10th U.S. circuit court of appeals, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

Tafel, the executive director of Log Cabin Republicans, a national gay group, is a critic of the Supreme Court's 2000 decision in Boy Scouts of America v. Dale, in which the court upheld the constitutional right of the BSA to determine its own membership criteria by barring gay scouts and scout leaders. McConnell, on the other hand, is the primary drafter of the influential legal brief adopted by the BSA as the basis of its argument before the high court.

Nevertheless, Tafel says he became very impressed with McConnell when the two of them met for the first time in September on Capitol Hill. "It was clear that McConnell was shaken by the charge that he was antigay," Tafel says. "I think he wanted to make it clear that was not the case at all. He came across as open-minded."

In fact, the September exchange went so well that McConnell, who before the nomination was an obscure law professor at the University of Utah, invited Tafel to sit behind him the following day as he testified before the Senate Judiciary Committee.

Now that the Republicans have gained control of both houses of Congress, McConnell's nomination, which Democrats threatened to reject before the election, is likely to sail through the Senate Judiciary Committee and the Senate as a whole. And his nomination may become little more than a dress rehearsal for what gay and lesbian Americans can expect as President Bush seeks to fill the large number of vacancies in the federal judiciary. In fact, the White House has promised to renominate Priscilla Owen, a conservative Texas state court judge the judiciary committee had already rejected.

Since legal matters such as adoption by gays and discrimination based on sexual orientation face judgment before federal courts in the coming years, gay groups have jumped into the fray over McConnell's nomination. And while Tafel's group endorsed him, the nation's largest gay rights group, the Human Rights Campaign, accuses Log Cabin of selling out gays and lesbians for the president's political goals.

"There are some in this community, including members of Log Cabin, who have served as apologists for McConnell," says Wayne Besen, an HRC spokesman. "They are trying to obscure the fact that his record shows he is no friend of our community."

Tafel, for his part, charges HRC with failing to do its homework. "They just don't seem to be on top of McConnell's record," he says. "Why didn't they try to meet with McConnell? Why are they always lockstep with Senate Democrats? Sometimes it seems they just want to shoot down every nominee, which doesn't help anyone."

A closer look at McConnell's record shows a conservative but often unorthodox legal mind at work. In an essay he wrote for the anthology Sexual Orientation and Human Rights in American Religious Discourse, McConnell argued that antigay employment discrimination could be considered "moral" among religious believers. "If the gay rights position is correct, then the teachings of a number of venerable and beloved religious and philosophical traditions--and maybe the Bible itself--must be rejected as bigoted and ignorant," he wrote. …

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