McConnell’s Legal Philosophy Poses Severe Threat to Civil Rights, Religious Liberty, Reproductive Choice

At a press conference with leaders of national civil, constitutional, and women’s rights organizations, People For the American Way President Ralph G. Neas called on the Senate Judiciary Committee to reject the confirmation of Michael McConnell to the U.S. Court of Appeals for the 10th Circuit. Neas released a PFAW report analyzing McConnell’s legal philosophy on a range of civil and constitutional rights issues. The Senate Judiciary Committee is scheduled to hold a confirmation hearing for McConnell on Wednesday, September 18.

“On too many central constitutional and civil rights questions, Michael McConnell is far out of the mainstream – even to the right of the most conservative Justices on the Supreme Court,” said Neas.

“The report we are releasing today is troubling reading,” Neas said. “It is incomprehensible to imagine the U.S. Senate at the beginning of the 21st Century confirming to the federal appeals court a nominee who opposes the vital civil rights principle of “one person, one vote” and who strongly criticizes the Supreme Court’s Bob Jones University decision that the government is justified in withholding tax-exempt status from universities with racially discriminatory policies.”

The PFAW report on McConnell focuses on the areas of civil rights, privacy and reproductive choice, and religious liberty, and raises serious questions about his ability to be a fair and impartial judge suitable for a lifetime appointment to the federal appeals court.

Civil Rights

§ Astonishingly, McConnell opposes the Supreme Court’s landmark ruling that the federal government had the authority to withhold tax-exempt status from Bob Jones University because of its racially discriminatory policies. The ruling allowed the federal government to deny the University a tax exemption. McConnell calls the ruling an “egregious” example of the Supreme Court’s failure to “intervene to protect religious freedom from the heavy hand of government.” The 8-1 Bob Jones ruling was a resounding affirmation of the government’s compelling interest in combating race discrimination. McConnell would also weaken protections against discrimination based on gender and sexual orientation.

§ McConnell opposes “one person, one vote” — one of the most important civil rights principles recognized by the Supreme Court under the Fourteenth Amendment. McConnell argues that the Court’s theory “was wrong in principle and mischievous in its consequences.” Even McConnell recognizes that his views on “one person, one vote” are far out of the mainstream: “There are no dissenters from the proposition on the Supreme Court, and there have been none for decades.”

§ McConnell, an active member of the right-wing Federalist Society, celebrates the current Supreme Court’s series of 5-4 states’ rights rulings, which have impaired the ability of Congress to protect the rights of ordinary Americans and threaten to dismantle many of the legal and social justice gains of the past 70 years.

Religious Liberty

§ McConnell is hostile to key principles of separation of church and state and argues for extraordinary legal preferences and special rights to be granted to religious organizations. His views on special rights for religious organizations are so extreme that they have been unanimously rejected by the Supreme Court in a number of cases. As his views on the Bob Jones case indicate, he would effectively allow religious organizations to exempt themselves from anti-discrimination laws. But he would go even further, exempting religious organizations from other important laws, including labor laws that protect workers by regulating hours and minimum wages. He argued before the Supreme Court that Jimmy Swaggart Ministries should be exempt from taxes on sales of religious merchandise. The Court unanimously rejected this claim. McConnell has criticized another unanimous Court ruling that a religious organization was not entitled to an exemption from the Fair Labor Standards Act even though it was running commercial enterprises such as service stations, clothing and grocery stores, construction companies, and a motel. McConnell even believes the Supreme Court in 1878 wrongly upheld the conviction of a Mormon for polygamy, arguing for a religious-based exemption to that generally applicable criminal law.

§ McConnell takes issue with Thomas Jefferson’s metaphor of the “wall of separation” between church and state, calling it “misleading.” In fact, McConnell supports direct government funding for religious organizations but apparently opposes any government regulation against discrimination by a religious organization in hiring or in the provision of services with government funds. His interpretation of the First Amendment would permit the government to build religious schools under a “neutral” school construction program in which it also built public and non-religious private schools. McConnell states flatly, “We must … reject the central animating idea of modern Establishment Clause analysis: that taxpayers have a constitutional right to insist that none of their taxes be used for religious purposes.”

§ McConnell’s confirmation would threaten the right of students not to be made captive audiences to religious worship and promotion of religion in public schools.

Privacy and Reproductive Choice

§ McConnell is unrelentingly hostile to a constitutional right of reproductive choice and privacy. He has advocated for restricting abortion rights wherever possible with the goal of overturning Roe v. Wade. He has expressed doubt about whether a “right to privacy” and to “personal autonomy” exist under the Constitution. McConnell has opposed the federal Freedom of Access to Clinic Entrances (FACE) legislation, which protects women and clinics against anti-abortion violence, and has expressed admiration for a federal judge who intentionally refused to enforce that law. He even suggested other ways for the judge to evade the law while not technically disobeying it.

An Important Choice for Senators

“McConnell’s record makes clear that as a lifetime appointee to the federal bench he would pose a serious threat to constitutional rights and liberties,” said Neas. “McConnell is highly intelligent and well-liked by his academic colleagues, but his extreme legal philosophy on too many issues raises serious questions about his ability to be a fair and impartial judge and make him utterly inappropriate for the federal appeals court.”