Americans United Assault on Michael McConnell WAS: POLITICAL CHURCHES endorsed by Robertson

[Michael deHaven Newsom]

I appreciate Mark's response.  I think that what is relevant for purposes of
this listserv is what I take to be the strong "associationist" point of view
that Michael holds.  In much the same way that "free speech maximalization" may
distort the meaning of the First Amendment, so too an excessively strong
commitment to free association.  Thus such views directly implicate the meaning
of the Religion Clauses.

The common thread in both views is an excessive deference to the majority, or to
the status quo.  Michael's views appear to protect minorities, but I suspect
that they only protect certain minorities, minorities that have a great deal of
social, cultural and political power, providing a way for them to exclude people
that they do not like from the lives and their world, all under the guise of
"free association."

The hypothetical of the landlady who, for religious reasons, does not want to
rent an apartment to an unmarried couple, a case that was discussed on this
listserv recently, implicates what I take to be Micael's strong associationist
point of view.  I conclude that the greater harm is visited upon the unmarried
couple if the landlady prevails than is visited upon the landlady if she loses.
Part of the argument for the landlady is some sort of "associationist" right.

Without characterizing Barry Lynn's prose, something that I choose not to do,
surely one can reasonably object to an analysis that supports the landlady, and
one can reasonably object to judicial nominees who support that analysis, just
as one can reasonably object to a nominee who takes my view of the matter.

"Scarberry, Mark" wrote:

> In response to Prof. Newsom's request:
>
> I quote from the Americans United for Separation website
> (http://www.au.org/press/pr5901.htm) what I consider to be despicable and
> dishonest propaganda by AUS and Barry Lynn against Michael McConnell:
>
> "Americans United for Separation of Church and State today announced its
> opposition to Michael W. McConnell's nomination to the U.S. 10th Circuit
> Court of Appeals.
>
> "President George W. Bush is prepared to nominate McConnell, currently a
> professor at the University of Utah Law School, to the federal appeals court
> despite the scholar's consistent opposition to First Amendment principles
> such as church-state separation.
>
> " ' This nomination represents a terrible assault on American freedom by the
> Bush administration,' said the Rev. Barry W. Lynn, executive director of
> Americans United. 'McConnell's record is one of relentless hostility for
> individual rights. I urge the Senate to swiftly reject his nomination.'
>
> " ' McConnell is the Religious Right's dream court nominee,' continued Lynn.
> 'He's a conservative Christian who's willing to use the force of government
> to impose his viewpoint.'
>
> . . .
>
> "Observed AU's Lynn, 'After looking at his record, McConnell starts to make
> Bork look moderate. This man wants to gut the constitutional protections
> that Americans count on. He's the wrong man for the job.' "
>
> I find it despicable and dishonest to describe Michael McConnell as (1)
> being consistently opposed to First Amendment principles (including but not
> limited to church-state separation), (2) being relentlessly hostile to
> individual rights, (3) being willing to use the force of the govt to impose
> religious right/conservative Christian viewpoints, and (4) wanting to gut
> consitutional protections. Barry Lynn and the AUS give demagoguery a bad
> name when they treat the nomination of a reasonable, kind, thoughtful
> scholar who has worked tirelessly to protect religious liberty for all
> (including minority religions) as a "terrible assault on American freedom."
> Anyone who knows Michael McConnell or who has taken the time to read with
> any care what Michael has written would be amazed at this characterization
> of him. The only "terrible assault" here is Barry Lynn's terrible assault on
> Michael McConnell.
>
> I'd hope all of us, even those who may disagree strongly with some of the
> positions Michael has taken, would find such scare tactics, distortions and
> character assasination to be despicable.
>
> You may want to see a letter written to Barry Lynn by Kevin Hasson of the
> Becket Fund. www.becketfund.org/other/LynnLetter.pdf .  A 15 member ABA
> panel unanimously determined that Michael McConnell was "well qualified" for
> the judgeship. I also doubt that Professors Laurence Tribe or Akhil Amar or
> Cass Sunstein would publicly support a nominee, as they reportedly have
> Michael, who could honestly be described the way that Barry Lynn and the AUS
> describe him.
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu
>
> -----Original Message-----
> From: Michael deHaven Newsom [mailto:mnewsom at LAW.HOWARD.EDU]
> Sent: Thursday, January 10, 2002 7:54 AM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: POLITICAL CHURCHES endorsed by Robertson
>
> Could you please indicate just how AUS has acted despicably and dishonestly?