By Lisa Keen
WASHINGTON – Lambda Legal Defense and Education Fund held off on its assessment of Chief Justice nominee John Roberts until after hearing his replies to questions during his confirmation hearing. Federal Judge Samuel Alito apparently does not warrant such a wait.
Lambda announced Monday that it will oppose Alito’s nomination to replace Justice Sandra Day O’Connor. And four other major national gay groups also announced their opposition Monday, including the National Gay and Lesbian Task Force and the Human Rights Campaign.
In a message to supporters from Executive Director Kevin Cathcart, Lambda said it has “closely studied” Alito’s record since his nomination by President Bush, and has determined he “has not demonstrated a commitment to upholding the values of liberty, equality and justice for all Americans.”
“To the contrary,” said Cathcart, “Alito puts his very conservative political agenda above a commitment to the core principles in the Constitution and the rights of all Americans. Alito’s record on the bench reveals a judge who has deployed his fine legal craftsmanship to service his conservative political agenda rather than equality and justice.”
In applying for a position with as deputy assistant attorney general in the Reagan administration in 1985, noted Lambda, Alito touted “his consistently conservative political beliefs.” While in that position, noted Lambda, Alito proposed a strategy to “restrict and eventually overturn” Roe v. Wade. The historic Supreme Court decision recognizing a woman’s right to have an abortion is considered an important foundation of many gay-related cases, including Lawrence v. Texas which, in 2003, struck down laws prohibiting sex between same-sex adults.
Alito also argued that the federal Rehabilitation Act, which prohibits discrimination against people with disabilities, should not cover people with AIDS. Lambda called Alito’s position “very controversial,” noting that he believed an employer should be able to fire a person just because of fear that AIDS could be transmitted casually. The Supreme Court rejected that position in its 1987 opinion in School Board of Nassau County v. Arline.
Lambda described Alito as being “extraordinarily unsympathetic to protections for unmarried people and couples who are denied the right to marry due to unjust laws.” It cited, as evidence, a case involving a Chinese man who sought asylum in the United States after the Chinese government sought to force his female partner to have an abortion in her eighth month of pregnancy. Alito, in his position on the U.S. Court of Appeals for the Third Circuit, wrote an opinion against allowing the man asylum, arguing that he was not married to the woman. Lambda said the U.S. “routinely” allowed asylum for married men in similar circumstances and the couple was not old enough, under Chinese law, to be married.
Four national gay groups jointly announced their opposition to Alito Monday, too -including NGLTF, HRC, the National Center for Lesbian Rights, and Parents, Families and Friends of Lesbians and Gays.
NGLTF Executive Director Matt Foreman said Alito’s appointment to the high court would “spell disaster for LGBT Americans for decades to come.”
“His judicial 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.
Eleanor (Eldie) D. Acheson, Director of Public Policy and Government Affairs for NGLTF, called Alito’s record “alarming” and “downright scary.”
“[H]is embrace in the 1980s of the right wing agenda for the Constitution and the role of judges and the courts in pushing that agenda combined with his own judicial record – a record that reflects that right wing agenda and patterns of result-oriented decision-making – raise the presumption,” wrote Acheson, “that a Justice Alito would be a man on a mission to end the legal right to abortion, curtail workers’ and minority rights, undermine the basic apportionment principle of ‘one person, one vote,’ eliminate diversity as a recognized value in the law, promote religious expression in public and official places, diminish citizens’ rights with respect to criminal investigations and prosecutions, curtail judicial review of criminal convictions, limit the scope of Congressional power particularly in favor of state interests and elevate the authority and discretion of the Executive Branch.”
In contrast, Albert Lauber, an openly gay tax attorney who worked with Alito when they were both government lawyers in the Reagan administration, said he believes Alito would be respectful of precedent when it comes to Roe v. Wade. But Lauber acknowledged that Lawrence is a relatively new decision and that he, Lauber, was not openly gay during his interactions with Alito in the 1980s.
Initial reports about Alito suggested the possibility he might be less conservative on gay civil rights matters. Colleagues indicated that, while conservative, he was more reasonable than rabid and more likely to show empathy toward gays where such conservative stalwarts as Justice Antonin Scalia would exhibit hostility.
As a senior at Princeton in 1971, Alito supervised an undergraduate task force that recommended the decriminalization of sodomy and said discrimination against gays in hiring “should be forbidden.” And as a federal appeals court judge in 2004, he penned a decision in Shore Regional High School v. P.S. which supported the efforts of the parents of a boy who was tormented by anti-gay epithets to have the student transferred to another school. He was also one of three judges in the Third Circuit who signed onto an opinion last year, Doe v. County, saying that a local health agency in Pennsylvania could not refuse to place foster children in a home where a child with HIV resided.
Alito’s confirmation hearing begins on Jan. 9.