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).

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. "If these teachings are correct, however, then the gay rights movement is committed to the defense of immorality."

In a 1996 interview on National Public Radio's Morning Edition, McConnell came out against the Employment NonDiscrimination Act, which would ban workplace discrimination based on sexual orientation, on similar grounds. "This would be the only civil rights law which is preventing people from hiring or firing on the basis of a moral judgment," he declared.

But McConnell also argued for the right of a gay-straight alliance to meet on public school grounds after Utah school authorities kicked it out. And McConnell occasionally has taken positions contrary to those of President Bush and his religious conservative supporters. For instance, he is on record opposing laws that criminalize same-sex sodomy. "I asked him point-blank what he thought about sodomy laws," Tafel says. "He told me that as a civil libertarian, he opposes them."

William Eskridge Jr., a professor of jurisprudence at Yale Law School and author of The Case for Same-Sex Marriage, knows McConnell personally: The two have exchanged drafts of law review articles and debated constitutional questions in person and over the phone. "It always seemed to me that regardless of his views, he's very comfortable around gay people," says Eskridge, who is gay. "And there is no question he is an excellent scholar."

McConnell has expressed approval of Romer v. Evans, the 1996 Supreme Court ruling striking down Colorado's antigay Amendment 2, and Eskridge insists that McConnell might surprise critics, much in the same way as David Souter, who was appointed to the Supreme Court by the first President Bush in 1990. "I think he will bring an open-minded, libertarian reading of the Constitution, even though most of his rulings would lean in a more conservative direction," Eskridge says.

But the Alliance for Justice, a liberal group that gauges court nominees, deplores McConnell's conservative bent. It notes his attack on Bolling v. Sharpe, a 1954 school desegregation case in which the Supreme Court said that the federal government must abide by equal-protection principles.

"There is concern among groups who advocate for civil rights that many of Bush nominees have records that suggest a hostility to basic civil rights," says Marcia Kuntz, director of the Alliance's judicial selection project. "Taken together, they could reshape the federal judiciary in a manner much more hostile to the rights of every minority group other than religious ones."

Evan Wolfson is in a position to know firsthand what kind of judge McConnell could well become. As the lead pro-gay attorney in the Dale case, Wolfson squared off against McConnell's legal philosophy. "The problem with McConnell is that he makes bigoted arguments in a much more subtle way than they usually are advanced," Wolfson says. "I think he could have a lot of very smart people fooled, and that's really scary."