Alito's record on gay rights a mixed bag

Alito's record on gay rights a mixed bag
By Kathi Wolfe

January 9, 2006

Judge Samuel Alito's record is a mixed bag on gay and lesbian issues.

Alito is unabashedly conservative. Yet in 1971, as an undergraduate at Princeton University, Alito headed a student taskforce that wrote a report on "the boundaries of privacy in American society." In a foreword to the report, Alito wrote, "We sense a great threat to privacy in modern America. We all believe that action must be taken ... to preserve privacy."

Twenty-two years before the U.S. Supreme Court struck down sodomy laws in Lawrence v. Texas, the Princeton students' report said, "no private sexual act between consenting adults should be forbidden," and "discrimination against homosexuals in hiring should be forbidden."

This showed prescient thinking at a time when few were speaking out on behalf of gay rights.

But as a judge, some of Alito's opinions on the 3rd U.S. Circuit Court of Appeals betray a record of hostility toward laws that help protect the rights of gays and lesbians. If confirmed as a U.S. Supreme Court justice, he could set back many of these rights.

In 2000, Alito ruled against the State College, Pa., school district's anti-harassment policy in Saxe v. State College Area School District. This policy prohibited harassment on the basis of "actual or perceived race, religion, color, national origin, gender, sexual orientation, disability or other personal characteristics." The policy said that harassment included "name-calling and degrading behavior." A member of the school board had challenged the policy, contending that his children, who attended the school, could not express their view (based on their Christian faith) that "homosexuality is a sin."

After a federal judge dismissed the challenge, the 3rd Circuit ruled on behalf of the challenger. In his opinion, Alito wrote that the "anti-harassment" policy violated free speech, including the right to make "derogatory" speech on "contentious issues" such as "sexual orientation."

This is troubling for teenagers who may find it hard to "come out" to other students and faculty in school. It is even more difficult to come out if you fear the threat of harassment.

However, in 2004, Alito ruled in Shore Regional High School Board of Education v. P.S. that the parents of a New Jersey student could enroll their teenage son in a high school outside their area. The son had been severely harassed at his previous school as a middle school student, and his parents wanted to avoid him from entering high school with the same children who emotionally and physically abused him. In Alito's opinion, he wrote that "most of the harassment focused on ... (the student's) perceived effeminacy" and that bullies constantly called him names, "such as 'faggot,' 'gay,' 'homo,' 'transvestite.'"

Alito and the two other judges on the 3rd Circuit backed the decision of an administrative law judge who found that the student would not be able to receive an education unless he was placed in a school where he would not be harassed.

Alito's record on AIDS/HIV is just as ambiguous.

In 1986, he helped prepare a legal analysis for the Justice Department that concluded that employers could fire people with AIDS based on a "fear of contagion, whether reasonable or not."

But in 2001, Alito ruled against a Centre County, Pa., policy that prevented families with foster children who were HIV-positive from taking in foster children who do not have HIV. Parents of an 11-year-old child with HIV challenged the policy. The county said the couple couldn't take in a foster child without HIV because the HIV might be transmitted between the children. The 3rd Circuit panel, on which Alito was a judge, wrote in its ruling of Doe v. County of Centre that the county's "blanket policy discriminates against the Does because of because of (their son's) HIV-positive status even though the probability of HIV transmission, and consequently the risk, is next to zero."

If confirmed as a Supreme Court justice, Alito could set back rights for gays and lesbians. Yet some of his rulings in favor of gays offer hope that he just might help maintain hard-fought civil rights.

Kathi Wolfe is a writer in Falls Church, Va. She can be reached at pmproj@progressive.org.