Metro Weekly

Trump judicial nominee Howard Nielson criticized a judge because he was gay

Past anti-LGBTQ advocacy raises questions over whether Nielson can impartially hear cases involving LGBTQ parties

Howard C. Nielson, Jr. – Photo: Drew Danburry.

A coalition of several pro-LGBTQ organizations and civil rights advocates are deeply troubled about President Trump’s latest judicial nominee, Howard C. Nielson, Jr.

Nielson, the son of former U.S. Congressman Howard Nielson, who represented Utah’s 3rd Congressional District in the late 1980s, has been nominated to the U.S. District Court for the District of Utah.

Specifically, the groups take issue with Nielson’s long history opposing LGBTQ rights, including his criticism of U.S. District Court Judge Vaughn Walker for his sexual orientation after Walker struck down California’s Proposition 8 as unconstitutional.

Representing plaintiffs in Hollingsworth v. Perry, which sought to defend Proposition 8’s validity, Nielson attempted to discredit Walker and have him thrown off the case by calling into question his impartiality.

He said that “the public could not be confident that Judge Walker did not have a direct personal interest in the outcome unless he unequivocally disavowed any interest in marrying his partner.”

Nielson’s criticism of Walker has drawn comparisons to Donald Trump’s attack on a federal judge from Indiana, Gonzalo Curiel, for his handling of a lawsuit involving Trump University last year.

Trump had said Curiel should recuse himself from a case solely because of his “Mexican heritage,” alleging that Curiel would be biased against Trump for his comments disparaging Mexican undocumented immigrants.

Now, ironically, it’s Nielson’s impartiality that’s being called into question. Specifically, advocates question whether his advocacy of anti-LGBTQ causes, opposing marriage equality and other legal protections for LGBTQ people, prevents him from impartially ruling on cases involving LGBTQ plaintiffs or defendants.

This could be particularly problematic, given that Salt Lake City alone holds the seventh-highest percentage of adult LGBTQ people in the country.

“Howard Nielson has spent the better half of this decade actively working to discredit and undermine legal protections for LGBT people,” Sharon McGowan, director of strategy at Lambda Legal, said in a statement. “When he couldn’t find a legal ground to stand on, he tried to win by degrading and insulting a federal judge, a strategy from the Trump playbook with which we are now so familiar. While President Trump may think it is perfectly fine to attack federal judges because of their ethnicity or other aspect of their identify, the American people know — and expect the Senate to send a clear message — that such behavior is disqualifying in a nominee for a lifetime appointment as a federal judge.

“These kind of legal tactics move beyond zealous advocacy and call into question Mr. Nielson’s ability to administer impartial justice for the people of Utah,” McGowan continued. “His underlying animosity towards the LGBT community must not be given the weight and authority of a lifetime appointment to the federal bench where he would surely continue find new ways to usurp protections and civil rights.”

Lambda Legal and 15 national, state, and local LGBTQ organizations have sent a letter to the U.S. Senate Judiciary Committee urging the committee to reject Nielson’s nomination. Among the signatories to that letter are the Family Equality Council, the National Center for Lesbian Rights, the National Center for Transgender Equality, Transgender Law Center, and even local community health center Whitman-Walker Health.

“Mr. Nielson’s attacks on the integrity of Judge Walker must also be viewed in the larger context of the arguments that he advanced during the Proposition 8 litigation,” the letter explains. “Mr. Nielson did not stop with aiming to discredit Judge Walker; he sought to cast doubt on the concept of sexual orientation itself. Despite the scientific consensus that sexual orientation is immutable, Mr. Nielson went to extraordinary lengths to sidestep that consensus during the Proposition 8 litigation, including by repeatedly suggesting that there is no clear definition of ‘sexual orientation.’

“In seeking to undercut the fact that gay, lesbian and bisexual individuals make up a discrete group, Mr. Nielson erases the fact that sexual orientation is a fundamental and indistinguishable part of who they are,” the group’s letter continues. “In addition, despite the prevalence of recent studies showing that LGBT people experience poor health care outcomes as a result of discrimination, Mr. Nielsen sought to discredit such research by citing outdated studies purporting to show that gay, lesbian and bisexual people do not experience minority stress.”

The letter also highlighted Nielson’s legal brief seeking to defend same-sex marriage opponents in the Obergefell v. Hodges case legalizing marriage equality. In that brief, Nielson argued that gays and lesbians should be denied the right to marry because same-sex families are “inferior to heterosexual families.”

The Leadership Conference on Civil and Human Rights sent its own letter to the Senate Judiciary Committee that echoed many of the concerns raised in the Lambda Legal-led coalition’s letter. It also attacked Nielson for his hostility toward affirmative action, his stated support for torture when he worked at the Office of Legal Counsel at the U.S. Justice Department under the Bush administration, and his targeting and rejection of potential Justice Department hires who worked for liberal advocacy organizations, civil rights groups, or Democratic office holders at any level of government.

The Human Rights Campaign sent a third letter to the Judiciary Committee opposing Nielson’s nomination. 

“The nomination of Howard Nielson to the federal bench is the latest attack on LGBTQ people by the Trump-Pence Administration,” Sarah Warbelow, legal director for HRC, said in a statement. “Nielson has a long track record of hostility and discrimination towards the LGBTQ community. He has stated that being gay is a choice, argued in favor of Prop 8 and abusive conversion therapy techniques, and had the audacity to claim a gay judge could not be impartial in a ruling involving LGBTQ rights. Nielson is unfit to serve on the federal bench, and the Senate Judiciary Committee should reject his nomination.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com