<% IssueDate = "2/13/03" IssueCategory = "Events" %> GayToday.com - Top Story
Top Story
Bush Administration Busily
Choosing Slate of Anti-Gay Judges

Hostile Federal Courts Would Pose Threat to GLBT Americans

Radical Right-Wingers include Sutton, Tymkovich and Bybee

Compiled By GayToday
Human Rights Campaign

Washington, D.C.-The Bush Administration is nominating a slate of anti-gay judges whose confirmations could place courts outside the mainstream and make it increasingly difficult for gay, lesbian, bisexual and transgender Americans to achieve basic justice and equality though the federal judiciary, according to the Human Rights Campaign.

"We reject the notion that either party has been given a mandate with regard to the federal courts and believe that Americans want judges who are free of prejudice," said HRC Executive Director Elizabeth Birch.

"We are alarmed that the administration has put forth a slew of unacceptable nominees whose extreme anti-gay views threaten to make the federal courts hostile to basic equality for GLBT Americans. We urge the Senate to oppose these nominees and to use its role of advice and consent to ensure that only fair-minded nominees are confirmed."
Bush wants to seat a slate of right-wing anti-gay judges on the federal bench

HRC opposes the nomination of Assistant Attorney General Jay Bybee to the U. S. Court of Appeals for the 9th Circuit. There could be a committee vote on his nomination before the end of February.

In a 1997 law review article, Bybee, then a professor, offered an extremely troubling view of the landmark equal protection case, Romer v. Evans. In that case, the Supreme Court ruled that Amendment 2 in Colorado was unconstitutional and said that the amendment was not rationally related to a legitimate purpose. Amendment 2 sought to ban any municipality in Colorado from enacting laws that would protect gay people from discrimination.

In the article criticizing the Amendment 2 decision, Bybee questioned the "continuing validity" of Romer and characterized sexual orientation-inclusive civil rights laws as nothing more than government-sponsored "preferences" for "homosexuals."

"Bybee's characterization of civil rights laws as 'preferences' indicates a fundamental misunderstanding of the law and an antipathy toward laws that protect the GLBT community from discrimination," said HRC Political Director Winnie Stachelberg.

HRC also opposes the nomination of Jeffrey Sutton to the U.S. Court of Appeals for the 6th Circuit. A hearing for Sutton was held in late January, and the Judiciary Committee is expected to vote on his nomination today.

Sutton has been a leader in the effort to limit congressional authority to enact laws protecting civil and disability rights. As the gay community is impacted by HIV/AIDS, HRC is particularly concerned about his activism in this area, which has dealt a critical blow to legal protections for people with disabilities.

"Sutton's work has helped close the door on people with disabilities seeking redress for discrimination by states or state institutions," said Stachelberg.

"As a community affected by hate violence, HRC is also very concerned about Sutton's views of Congress' authority to enact legislation aimed at curbing criminal violence, such as hate crimes legislation."

Sutton has argued that the federal judiciary should have almost unfettered discretion to override Congress' empirical findings in support of its legislation, which would limit congressional authority to protect individuals from violations of their rights - such as hate crimes.

Additionally, HRC opposes the nomination of Timothy Tymkovich for Court of Appeals for the 10th Circuit. As solicitor general, Tymkovich defended Colorado's Amendment 2 and wrote a law review article that he co-authored that appears to reflect anti-gay bias and opposition to laws designed to protect against discrimination based on sexual orientation.

"The article shows that Tymkovich buys into some of the worst anti-gay rhetoric and ideology concerning our community," said Stachelberg. "He describes anti-discrimination laws as 'special legal protections for homosexuals' and 'special rights,' common rhetoric for those opposed to equal protection for gays and lesbians."

In the article, Tymkovich lumped homosexuality with a litany of "immoral" and dangerous behaviors, including sadomasochism, cockfighting, bestiality, suicide, drug use and prostitution. He writes:

"Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, 'contra bonos mores,' i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate morality (emphasis added). Amendment 2, while not primarily about moral judgment, reflects a social statement about state and local laws benefiting homosexual conduct."

"Tymkovich's statements are insulting to GLBT citizens whose lives are affected by discrimination and violence, and for whom the even-handed enforcement of civil rights laws is of the utmost importance," added Stachelberg.

"Furthermore, his assertion that GLBT anti-discrimination laws protect a type of conduct rather than a group of people is inconsistent with medical and psychological research and with public opinion."

HRC has also opposed the nomination of Mississippi Judge Charles Pickering to the 5th Circuit Court of Appeals because his career has been punctuated by racial divisiveness and anti-gay sentiments.

Last year, HRC opposed the nomination of Michael McConnell to the 10th Circuit Court of Appeals. McConnell, who was confirmed by the Senate in November 2002, contributed to the anti-gay brief for the Boy Scouts in the Boy Scouts of America v. Dale.
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