Washington Blade - December 16, 2005
Lou Chibbaro, Jr.

The groups were challenged by the head of the national gay group Log Cabin Republicans, which said the gay rights organizations were seeking to impose an ideological "litmus test" on Alito that they did not impose on the two Supreme Court justices nominated by President Clinton.

President Bush nominated Alito to the Supreme Court on Oct. 29 to replace retiring Justice Sandra Day O'Connor. The nomination came shortly after the Senate confirmed Bush's nomination of Chief Justice John Roberts; the same seven gay organizations announced their opposition to his nomination. Only Lambda Legal waited until after Roberts' Senate hearings to announce its position.

"Judge Alito's appointment would spell disaster for LGBT Americans for decades to come," said Matt Foreman, executive director of the National Gay & Lesbian Task Force.

"His record fully reflects his embrace in the 1980s of the right-wing agenda and is completely antithetical to the constitutional principles and values on which our rights and equal protection guarantees rest," Foreman said.

Joining the Task Force in opposing the Alito nomination are Lambda Legal Defense & Education Fund; the Human Rights Campaign; the National Black Justice Coalition; the National Stonewall Democrats; and Parents, Families & Friends of Lesbians & Gays.

Last month, the New York-based Gay Men's Health Crisis, which provides services to people with HIV, and the Sliver Spring, Md.-based National Association of People With AIDS announced their opposition to the Alito nomination. The two groups point to Alito's dissenting opinions on civil rights and disabilities cases, which they say would have greatly restricted or overturned civil rights protections in general and for people with disabilities - including people with HIV - had the Third Circuit appeals court sided with Alito on such cases.

Alito has served since 1990 as a judge on the Philadelphia-based U.S. Court of Appeals for the Third Circuit.

"This nomination is a direct threat to the hard-won gains by the LGBT and HIV/AIDS communities over the years," said GMHC executive director Ana Oliveira.

Ideological differences

Patrick Guerriero, Log Cabin's executive director, said the gay and AIDS groups and their liberal advocacy allies are opposing Alito on ideological grounds, despite his recognized skills as a lawyer and his demonstrated knowledge of constitutional law.

Guerriero said many of the gay and non-gay groups opposing Alito on ideological grounds called on Senate Republicans to put aside ideological issues when Clinton nominated Supreme Court Justices Ruth Bader Ginsburg in 1993 and Stephen G. Breyer in 1994. Ginsburg and Breyer were considered liberal-to-moderate jurists with records supporting civil rights cases.

"Our angle on this is the rules applied for justices nominated by Republican presidents should not be any different than those nominated by Democratic presidents," Guerriero said. "It's unfair not to apply the Ginsburg-Breyer ground rules to Alito."

Gay rights attorneys familiar with Alito's record said Alito likely would vote to scale back or possibly overturn key decisions that have advanced gay rights.

They note that his judicial opinions and his legal writings as a deputy assistant attorney general during the Reagan administration show that he strongly disagrees with decisions upholding a woman's right to an abortion based on the constitutional doctrine of privacy.

The Supreme Court also cited privacy rulings in its landmark 2003 decision of Lawrence vs. Texas, which overturned state sodomy laws that criminalized gay sex.

However, in more than 800 opinions in which Alito participated on the appeals court, only two addressed gay-related issues directly. He voted in favor of gay rights in one of the cases and against gay interests in the other.

The gay groups opposing Alito said they have studied his record on a wide range of issues important to gays, including civil rights in general, abortion rights and free-speech rights.

"For African Americans, there has been no more important institution in the nation than the Supreme Court," said Alexander Robinson, executive director of the National Black Justice Coalition, a black gay advocacy group. "In his 15 years as a dissenter on the federal appeals court, Judge Alito has been hostile to race discrimination cases and sought to narrow individual rights."

Robinson said Alito's record points to a judge whose views are "well out of the judicial mainstream" on issues of concern to blacks, gays and other minorities.

Lambda Legal, which represents clients in gay rights and AIDS-related cases, including Supreme Court cases, prepared a detailed analysis of Alito's record, which it posted on its website, lambdalegal.org.

"Unfortunately, what our analysis reveals is that Judge Alito has a political agenda different from that required of members of the judiciary," said Kevin Cathcart, the gay litigation group's executive director.

"We do not believe that Judge Alito has the necessary commitment to liberty and equality for all Americans," Cathcart said. "Put differently, his political agenda leads him to write judicial decisions to make the law conform to his politics. Then he applies legal craftsmanship and precedent to justify the law he is making."

Bush and his allies in the Senate have used similar arguments to counter opponents of Alito, calling the opponents liberal ideologues who want a Supreme Court nominee to advance their own political agenda by "writing" law rather than interpreting the Constitution.

Decisions, decisions

In 2000, Alito wrote an opinion striking down an anti-harassment policy adopted by a school district in State College, Pa., that included a prohibition against anti-gay harassment as well as harassment against other groups.

In his opinion, Alito stated that while preventing discrimination in schools is a legitimate government interest, the anti-harassment policy was too broad and infringed upon free speech rights. He said the Constitution protected such rights, even if the speech happens to "offend" another student.

In a separate case in 2004, Alito ruled in favor of a New Jersey student whose parents sought to have him transferred to a middle school outside his neighborhood so he could escape severe anti-gay harassment. Although the student was not identified as gay, Alito noted in his opinion that the harassment focused on the student's "lack of athleticism, his physique, and his perceived effeminacy," as well as the use of epithets such as "faggot" and "queer."

Alito's opinion, which was part of a unanimous, three-judge ruling, overturned a lower court decision and ordered the school district to pay the student's tuition for the alternate school. The school district had refused to pay, saying the student should remain in his neighborhood school while school officials took steps to protect him.

As a senior at Princeton University in 1971, Alito helped write a student paper on privacy rights that called for the repeal of sodomy laws and concluded, "Discrimination against homosexuals in hiring should be forbidden."

With 17 students listed as participants in the paper, it was unclear how strongly Alito believed in its conclusions or whether his views may have changed since 1971. But at least some activists viewed the paper as a sign that Alito recognized gays have been subjected to discrimination.

Guerriero said Log Cabin Republicans would wait until after Alito's Senate confirmation hearing in January before it decides whether to formally take a position on the Alito nomination. He said the group issued a statement calling Roberts highly qualified for a Supreme Court appointment but did not formally endorse the chief justice nominee. Log Cabin likely would issue a similar statement about Alito, Guerriero said.

"We see Judge Alito as being unquestionably conservative, but his judicial temperament makes him a strong candidate for the court," Guerriero said. "We don't know how he will vote on our issues. So we are asking senators to ask him very tough questions on gay issues. We feel Alito deserves a fair hearing and an up or down vote."

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