Washington Blade - November 11, 2005
Lou Chibbaro, Jr.

The unanimous decision by the U.S. Court of Appeals for the Third Circuit in Philadelphia - where Alito has served as a judge since 1990 - declared that the policy adopted by Center County, Pa., violated a clause in the Americans With Disabilities Act, which bans AIDS-related discrimination.

Alito's support for the 2001 decision, which was hailed by AIDS activists, came 15 years after he helped write a Justice Department opinion during the Reagan Administration asserting that employers had a legal right to fire people with HIV due to "fear of contagion, whether reasonable for not."

The two positions relate to legislation carrying very similar types of federal protection against bias on the basis of disability, but the latter opinion came after the landmark Supreme Court case of Bragdon vs. Abbott, which held that HIV-positive persons were always covered under the Americans With Disabilities Act.

"We have to look at the good and the bad," said Lisa Hardaway, spokesperson for Lambda Legal Defense & Education Fund, a gay litigation group that is studying Alito's record.

Hardaway said Lambda would withhold judgment on Alito's nomination until after it completes its own review of his record in hundreds of decisions as an appeals court judge as well as documents he prepared while working at the Justice Department.

"We don't know what we might find tomorrow or the next day," she said.

Marriage issue looms

Lambda attorney Jon Davidson said the group is also reviewing a series of rulings by Alito on cases involving abortion and requests by foreign nationals for U.S. political asylum in which Alito appears to have used marital status as a deciding factor.

The New York Times, which first reported on the cases where Alito linked asylum decisions to marriage, quoted Alito as saying in one of this decisions that the "marriage relation" is important in "so many areas" such as "income tax, welfare benefits, property, inheritance, testimonial privilege, etc."

Davidson and other gay rights attorneys are expected to examine these cases with great interest because Alito, if approved by the Senate, is likely to decide on a number of Supreme Court cases involving same-sex couples.

In the 2001 foster care case, the Centre County Children & Youth Services agency adopted a policy barring the placement of HIV-negative children in homes with children who have HIV. The agency adopted the policy after a husband and wife team, who won awards for their past service as foster parents, applied to take in a foster child into a home in which one of their own children, an 11-year-old boy, had AIDS.

The agency said it was concerned that "roughhousing" between children could lead to HIV transmission. The agency also cited statistics showing that a significant percentage of foster children in their teenage years engaged in sexual assault against other children. The agency argued that an HIV-negative foster child might sexually assault the HIV positive child and contract HIV.

The foster parents, identified only as Mary Doe and John Doe, of State College, Penn., filed suit in federal court to overturn the policy. The U.S. District Court upheld the policy, and the parents appealed before Alito's Third Circuit U.S. Court of Appeals.

In its unanimous ruling, the Third Circuit court ruled that the Americans With Disabilities Act bars the type of policy adopted by the county, saying the risk of HIV transmission from the 11-year-old boy to a potential foster child was remote and did not reach a threshold for such risk provided under the disabilities law.

The county's "blanket policy discriminates against the Does because of [their son's] HIV positive status even though the probability of HIV transmission, and consequently the risk, is next to zero."

Much of the case's outcome was pre-determined by the Supreme Court's ruling in Bragdon, leaving gay and AIDS legal experts wondering how Alito feels about that decision. The Bragdon case was decided by a 5-4 margin that included both Justice Sandra Day O'Connor and Chief Justice William Rehnquist in the dissent.

Even 'irrational' HIV bias OK

Hints of Alito's view about the scope of the ADA can be found in the the 1986 Justice Department opinion he helped write, and which was first reported on last week by the Washington Post. President Bush nominated Judge Samuel Alito to fill Sandra Day O'Connor's seat on the U.S. Supreme Court. The U.S. Senate is not expected to begin confirmation hearings until January. (Photo by Ron Edmonds/AP)

The memo concerns the Rehabilitation Act, which barred discrimination within the federal workforce on the basis of disability, but the 2001 foster care decision that Alito joined said the Rehabilitation Act and the subsequently-passed ADA cover and don't cover the same types of discrimination.

"We certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands," the Post quoted Alito as saying sometime after the Justice Department released its 1986 opinion. MORE INFO Lambda Legal Defense & Education Fund 120 Wall Street, Suite 1500 New York, NY 10005 212-809-8585 www.lamdalegal.org

At the time the memo was written, Alito was working in the Justice Department's Office of Legal Counsel and was assigned to research whether the Rehabilitation Act could be invoked to ban discrimination against HIV-positive federal workers.

The opinion, written in the early days of the AIDS epidemic, concluded that workers with the AIDS virus were not protected from discrimination, even if the mistreatment was based on faulty, unproven, or "irrational" medical assumptions, including the belief that AIDS could be transmitted by casual contact.

Alito's role in writing the controversial opinion has prompted the National Association for People with AIDS to oppose his nomination to the Supreme Court.

"If this is an example of the kind of legal thinking he has, it's very unsettling," said Terje Anderson, NAPWA's executive director.

Two gay cases

Only hours after President Bush announced Alito's nomination on Oct. 31, news surfaced that he had ruled against one gay-related case while ruling in favor of another.

In a 2000 case, a conservative Christian family sued challenging a school policy banning harassment based on sexual orientation, race, religion and other categories. The family said they feel compelled to speak out against homosexuality as a sin and feared persecution under the broadly-worded policy, which included speech and "teasing."

Alito wrote a unanimous decision on behalf of a three-judge panel concluding the anti-harassment policy infringed on First Amendment rights because students on campuses have a right to voice their opposition to homosexuality.

In another gay-related case in 2004, which Alito also wrote, he concluded that a school system in Pennsylvania should be required to pay tuition for a high school student who switched to a school outside his district to avoid anti-gay harassment.

Although the student was not identified as gay, Alito noted he was derided and bullied, and called a "faggot," because he appeared effeminate. Alito wrote in his ruling that the school district had failed to provide adequate protection against the bullying and derisive behavior within the district.

Abortion, asylum, marriage

Alito's rulings that appear to have given extra weight to married applicants seeking political asylum in the United States could be an indication that he will embrace the concept of traditional, heterosexual marriage in future cases, said Davidson of Lambda Legal.

"He seemed to be drawing a big distinction between Chinese men who were married and not married in asylum cases," Davidson said.

The New York Times reported that in 1997, Alito was part of a three-judge panel that rejected an asylum request by a Chinese man who argued that his fianc could be forced to have an abortion under China's strict policy limiting the number of children in families.

At the time, under U.S. immigration rules, husbands were eligible to apply for U.S. asylum if their wives were forced to have abortions. In the 1997 case, asylum petitioner Cai Luan Chen asked to be treated as if he were married to his fianc because Chinese law also prevented him from marrying until he reached the age of 22.

In a unanimous decision that Alito wrote, the three-judge panel refused to extend the asylum policy covering married couples to boyfriends or fianc s, the Times reported.

"Judge Alito expressed some sympathy for the argument but concluded that marriage was a categorical status that was easily applied to particular cases and was central to many distinctions made in the law," the Times reported Alito as saying in his decision.

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Chris Crain contributed to this report.

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