November 4, 2005

Alito is seen as likely
to roll back LGBT rights

by Eric Resnick

Washington, D.C.--Stung by political allies who charged that his previous U.S. Supreme Court nominee might not be as likely to end women�s reproductive rights and throttle movement toward lesbian, gay, bisexual and transgender equality as they would like, President Bush delivered on his campaign promise to nominate a justice likely to roll back those rights.

Days after the withdrawal of Harriet Miers� nomination to be associate justice of the high court, the president nominated Samuel A. Alito, who has served on the Third Circuit Court of Appeals in Philadelphia since 1990.

Miers� nomination was derailed partly because of her lack of a record on the social issues that the GOP�s right wing care about. Alito has a long record on these issues.

Since his current appointment by the president�s father, Alito has often been a lone dissenter on a court not considered to be conservative. He has been given the nickname �Scalito� for his judicial similarity to archconservative Supreme Court Justice Antonin Scalia.

Alito, a Catholic, was on the nomination wish list of the religious right. That list includes names such as Janice Rogers Brown and Priscilla Owen, who were filibustered by Democrats on the Senate floor for their radical judicial views earlier this year before a deal by 14 senators later facilitated their confirmation.

Culture war gearing up

Both sides of the nation�s culture war, which has GLBT rights at its leading edge, are gearing up for a battle over the Alito nomination. That battle could resurrect the battle over the use of the filibuster by minority senators to block appointments. That battle would likely trigger the Republican �nuclear option,� changing the Senate rules to forbid the parliamentary move, ending a 217-year tradition.

Social progressives, including the GLBT community, who could not raise enough money to mount a campaign against the nomination of now-Chief Justice John Roberts earlier this year, are poring over Alito�s record and urging a thorough examination by the Senate Judiciary Committee.

Social conservatives, including the anti-GLBT enterprises, are celebrating the nomination and the opportunity to wage jihad on the opposition during the confirmation process.

Family Research Council founder Gary Bauer called the nomination �outstanding,� adding that he is happy that Bush is picking a fight with his enemies this time, instead of with his friends, as they perceive was done with Miers.

�Any nominee who so worries the radical left is worthy of serious consideration,� said Focus on the Family�s James Dobson.

The Family Research Council�s Tony Perkins said that we are now facing �a moment in American history that has been decades in the making;� an opportunity for the right to counter the Supreme Court�s perceived liberal tilt: �This is that moment in time where that can be corrected . . . As Christian citizens of this country we should be involved in this historic moment and our voices should be heard.�

�Bush capitulated to the howling�

�Judge Alito�s track record on reproductive freedom, enforcement of civil rights and federalism--respect for Congress�s power to enact important statutes like civil rights laws--raises potential �red flags� for Lambda Legal and merits particular scrutiny,� said the lesbian and gay legal group�s executive director, Kevin Cathcart.

�One of the factors that led to the failed nomination of Harriet Miers was the perception by the right wing that she was not the staunch conservative ideologue they have been waiting for,� he said.

�Unlike the right wing, we aren�t looking for a guarantee of success each time we come before the high court,� continued Cathcart. �Our guiding principle as we examine nominees to the Supreme Court is that our clients, and all civil rights plaintiffs, must have a level playing field when they appear before the court. The Constitution requires this, and it is every justice�s responsibility to make this promise a reality.

Cathcart concluded, �A level playing field requires a clear commitment to equality and fairness for all Americans, including lesbian, gay, bisexual and transgender people and those affected by HIV. Does Judge Alito�s judicial philosophy reflect that commitment? That is the central question for us.�

National Gay and Lesbian Task Force director Matt Foreman said, �President Bush capitulated to the howling from the extreme, evangelical right and threw them red meat in the form of U.S. Circuit Court Judge Samuel Alito. The country will now be put through a wrenching, divisive and damaging confirmation process. One more travesty inflicted on this nation by the president and his right wing allies.�

School harassment policy struck

Alito has taken positions on employment discrimination claims that would make it more difficult, if not impossible, for sex discrimination cases to be brought under Title VII of the Civil Rights Act of 1964.

Within the last year and a half, significant progress has been made protecting GLBT people from sex stereotyping discrimination. This was first done in the landmark case Smith v. Salem, then repeated in Barnes v. Cincinnati--both Ohio cases. This evolving area of law could be turned around by an Alito vote against it.

It was Alito who authored a lone dissent in the 1991 Planned Parenthood v. Casey case upholding a provision in Pennsylvania law that said a woman seeking an abortion must first notify her husband. This is seen as a signal that Alito does not recognize a fundamental right to sexual and reproductive privacy, a strong holding of the Lawrence v. Texas decision striking sodomy laws.

Alito consistently rules in favor of religious displays and observances in public places, paid for by public funds.

In 2001, Alito authored the opinion in Saxe v. State College Area School District which was before the Third Circuit. In it, he struck a school�s anti-harassment policy as unconstitutional, siding with Christian students who complained that it violated their religious duty to condemn homosexuality.

Lat year, however, he wrote the opinion in Shore Regional High School vs. P.S. in support of protecting an effeminate student who had been severely bullied.

Alito has also written that Congress has no authority to make states comply with the Family and Medical Leave Act, which is of particular value to those who care for people with AIDS. The judge�s supporters are universally convinced that he will find no right to same-sex marriage in the Constitution, and are using that as a rallying cry in support of confirmation.

Ohio senator Mike DeWine was one of the �Gang of 14� involved in last summer�s deal that confirmed three virulently anti-gay nominees to federal courts in exchange for a promise that nominees will not be filibustered short of �extraordinary circumstances.� He has said he is pleased with Alito and will pull out of the agreement if the Democrats attempt to block his confirmation.

Senate hearings on Alito�s nomination are expected to begin in December.

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