People for the American Way Report in Opposition to the Confirmation of Michael W. McConnell

McConnell has advocated permitting even blatant, intentional discrimination by some groups, contradicting important Supreme Court precedent

A key civil rights principle is that protection against discrimination through civil rights statutes applies not only to improper actions by government, but also by non-government groups, organizations, and individuals. In a number of situations, however, McConnell has argued against this principle, even when blatant, intentional discrimination is involved.

Perhaps the most troubling example concerns Bob Jones University v. United States, 461 U.S. 574 (1983). In that case, the Supreme Court ruled that the IRS could properly revoke the charitable tax exemption of a private university that was committing racial discrimination by banning interracial dating among its students. The Bob Jones case became especially notorious as a result of the attempt by the Reagan Administration to revoke the relevant IRS rule. That rule, which was “[b]ased on the ‘national policy to discourage racial discrimination in education,’” provided that “‘a [private] school not having a racially nondiscriminatory policy as to students is not ‘charitable’ within the common laws concepts’” reflected in the pertinent provisions of the Internal Revenue Code. 461 U.S. at 579 (emphasis added) (quoting IRS Revenue Ruling 71-447). All nine Justices (including then-Justice Rehnquist who dissented on other grounds) specifically rejected Bob Jones’ claim that its religious beliefs could justify its blatant race discrimination while it retained tax exempt status, and the Court explained that the government had a compelling interest in combating such discrimination.3

More than a decade after the widely accepted ruling in Bob Jones, however, McConnell criticized it for failing to allow the university’s religious claims to trump civil rights protections. In a 1997 article, McConnell specifically included the Court’s decision to allow the government to “revoke tax-exempt status for fundamentalist schools that forbid interracial dating” as one of several “egregious examples” of the Court’s failure to “intervene to protect religious freedom from the heavy hand of government.” “The Supreme Court 1997: A Symposium,” 76 First Things at 32 (Oct. 1997). Several years earlier, McConnell had similarly written that the “racial doctrines of a Bob Jones University” should have been “tolerated,” even though he admitted they were “abhorrent,” because they were “church teachings.”4 McConnell’s description of the landmark Bob Jones ruling as “egregious” and his apparent condoning of blatant race discrimination by a group receiving a government tax exemption are extremely disturbing.5

Bob Jones, however, is far from the only situation in which McConnell has claimed that the preferences of a group or individual, whether based on religion or not, should be able to trump anti-bias laws. In a 2000 article, McConnell raised concerns about the Supreme Court’s decision in Roberts v. United States Jaycees, 468 U.S. 609 (1984). In that case, the Court ruled that the Jaycees’ policy of blatantly excluding women from regular membership was illegal under anti-discrimination laws and could not be justified as freedom of association protected by the First Amendment. McConnell conceded that the government “might” be justified in applying such laws to the Jaycees itself, because it was “essentially a business networking organization.” But “most private noncommercial groups,” McConnell argued, “should be allowed to constitute and govern themselves,” despite anti-bias laws. McConnell, “The Problem of Singling Out Religion,” 50 DePaul L. Rev. 1, 45-46 (Fall 2000)(“DePaul”).

If accepted, this argument by McConnell could have devastating consequences. The Supreme Court has recognized the government’s “compelling interest in eliminating discrimination against women,” and that anti-bias laws like the one in Roberts
serve “compelling state interests of the highest order.” Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (internal citation omitted). If anti-discrimination laws as in Roberts were limited only to groups that were “essentially business networking organizations,” women and minorities could be excluded from many organizations where business is nonetheless conducted and would suffer serious harm. For example, the Senate Judiciary Committee has condemned membership by judicial nominees and Members of Congress in discriminatory country clubs where meals are served or where club members bring professional associates to the club -- actions that do not transform them into “business networking organizations” but mean that discriminatory exclusion has harmful business-related consequences. See Senate Judiciary Committee Resolution (Aug. 2, 1990). McConnell’s view would allow many organizations to exempt themselves from important anti-bias laws.

Although the courts have continued to apply the Roberts and Bob Jones principles, McConnell recently achieved partial success in his efforts to undermine those principles in Boy Scouts of America v. Dale, 530 U.S. 640 (2000). By a narrow 5-4 majority, the Court held in that case that under the First Amendment, the Boy Scouts’ opposition to homosexuality trumped the application to them of the provisions of a New Jersey public accommodations law prohibiting discrimination based on sexual orientation. McConnell co-authored the brief for the Boy Scouts, and argued that the Court should not even consider whether the Boy Scouts in fact had a consistent, pre-existing policy on homosexuality, because, as a private group, it could “change those beliefs when it sees fit.”6 Justice Stevens’ dissent was particularly critical of this point, noting that it threatens to leave the courts with “no way to mark the proper boundary between genuine exercises of the right to associate” and “sham claims that are simply attempts to insulate nonexpressive private discrimination.” 530 U.S. at 687. According to McConnell, however, it was even “frightening to contemplate the possibility” that the dissenters’ view in Dale could prevail.7

It is clear, moreover, that McConnell believes that groups and individuals should receive even greater ability to trump civil rights and other claims than recognized by the Court in Dale. In the 2000 article in which he criticized Roberts, McConnell called Dale a “hopeful move” in the right “direction.” DePaul at 46. In several articles discussing laws prohibiting employment and other discrimination based on sexual orientation, moreover, McConnell has argued for additional exemptions from laws prohibiting intentional discrimination by private individuals and groups.

For example, in an article in a 1998 book on sexual orientation and human rights, McConnell acknowledged that the law should protect against governmental discrimination in the enforcement of criminal and other laws based on sexual orientation, but expressed significant doubt about laws prohibiting private discrimination in employment, housing, and other areas. McConnell, “What Would It Mean to Have a ‘First Amendment’ for Sexual Orientation?” in Sexual Orientation and Human Rights in American Religious Discourse (Olyan & Nussbaum ed. 1998)(“Olyan”) at 240-1, 252-3.8 In any event, McConnell insisted that there should be a “respectable exception” from any such anti-bias laws “for those who wish to refuse to contract or associate on the basis of a conscientious (religious or non-religious) belief in the immorality of homosexuality.” Id. at 254. This exception should apply, McConnell argued, to at least some corporations and businesses as well as individuals. Id. at 254-55. In other words, any such persons or companies could simply exempt themselves from anti-discrimination laws.

McConnell made a similar argument in criticizing the decision in Gay Rights Coalition of Georgetown Univ. Law Center v. Georgetown University, 536 A.2d 1 (D.C. 1987). In that case, the court ruled that under District of Columbia law prohibiting an educational institution from discriminating on the basis of sexual orientation, Georgetown University was required to grant equal access to campus facilities and services to a gay rights group. The court made clear that the university did not have to grant official recognition to the group, that the university had been voluntarily providing such access anyway, and that the university did not contend that providing access amounted to a forced subsidy of speech. Id. at 77, n.21, 118. Nevertheless, McConnell criticized the decision because it allegedly “forced” on the university the “acceptance of homosexuality as an alternative lifestyle.” “Religion Clauses” at 201. According to McConnell, this was the equivalent of forcing Jim Crow laws on Berea College in 1908. Id. This was despite the fact that McConnell has agreed that public high schools should provide equal access to their facilities to gay rights groups. Olyan at 247-48. In other words, a non-government organization’s preferences should once again trump anti-discrimination laws.

McConnell’s views in this area are eerily reminiscent of much of the opposition in the 1950s and 1960s to civil rights laws. Integration was morally wrong, argued opponents, and those moral objections should prevail over court rulings and anti-bias laws. Based on the strong preferences of their customers, argued other opponents, businesses should be exempt from civil rights statutes. According to McConnell, the 21st Century equivalent of those claims should allow private individuals and groups to trump laws banning even blatant discrimination based on race, sex, and sexual orientation. McConnell’s criticism of Bob Jones and Roberts and his advocacy of this position are extremely troubling.

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