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Alito’s record mixed on gay issues
Pro-gay college paper surfaces, along with split gay school rulings

LOU CHIBBARO, JR. - CHRIS CRAIN
Friday, November 04, 2005

News that Supreme Court nominee Samuel A. Alito helped write a paper supporting gay rights as a senior at Princeton University in 1971 provided a glimmer of hope for gay activists this week as information surfaced about his conservative rulings as a federal appeals court judge.

As part of a class paper called “The Boundaries of Privacy in American Society,” Alito and 16 other Princeton students concluded that, “No private sexual act between consenting adults should be forbidden,” and “current sodomy laws” should be changed.

“Discrimination against homosexuals in hiring should be forbidden,” the paper also concluded.

However, with 17 people listed as participating in the project it is unclear how strongly Alito believed in the conclusions of the report or how his views may have changed since then. Alito did, however, write the report’s introduction.

President Bush named Alito, 55, on Oct. 31 as his nominee for the U.S. Supreme Court, drawing immediate criticism from Democratic senators and a coalition of civil rights and feminist groups, who predicted Alito would move the court far to the right.

Gay rights attorneys warned that Alito’s record since 1990 as a judge on the Philadelphia-based U.S. Court of Appeals for the Third Circuit shows that he would likely vote to scale back or possibly overturn key decisions that have advanced gay civil rights.

Gay rights attorneys and other legal experts said their concerns were based largely on information gleaned from Alito’s opinions on abortion rights cases that did not directly touch on gay rights but indicated he holds “strict constructionist” views on privacy rights.

The constitutional concept of privacy rights was considered a key factor in the Supreme Court’s 2003 decision of Lawrence vs. Texas, which overturned state sodomy laws, as well as the controversial abortion rights decision in Roe vs. Wade, in 1973.

Experts studying more than 800 written opinions involving Alito as an appeals court judge have so far found only two cases that involved gay-related issues, with Alito ruling in favor of gay rights in one and against in the other.

Struck down harassment policy

In 2000, Alito wrote an opinion striking down a gay-inclusive “anti-harassment” policy adopted by a school district in State College, Pa., which is home to Pennsylvania State University. A Christian conservative activist challenged the policy, saying it adversely affected his school children, whom he said were compelled by their religion to criticize homosexuality as a sin.

In 2004, Alito issued an opinion reversing a federal judge’s ruling from a lower court that required a student who had been severely bullied for being effeminate from attending a high school with the same students who had harassed him for years.

Both opinions were written on behalf of unanimous three-judge panels of the Third Circuit Court of Appeals, based in Philadelphia. The split between the two school rulings by Alito — one striking down a broadly worded anti-harassment policy and the other protecting a student subjected to severe anti-gay harassment — suggest that while Alito is a conservative judge, he is not afraid to use the court’s power to remedy a situation he views as unjust.

The anti-gay harassment policy that Alito struck down in 2000 banned harassment on the basis of “actual or perceived race, religion, color, national origin, gender, sexual orientation, disability or other personal characteristics.” Harassment on the basis of sexual orientated extended to “negative name-calling and degrading behavior.”

The policy was challenged by a member of a school board, whose two children attended schools there, who said their Christian faith would subject them to punishment under the policy.

“They believe, and their religion teaches, that homosexuality is a sin,” the plaintiffs alleged in the lawsuit. “[They] further believe that they have a right to speak out about the sinful nature and harmful effects of homosexuality.”

A federal judge ruled against the lawsuit, deciding that the school district’s harassment policy went no further than federal laws against harassment, which is not protected free speech under the First Amendment.

A three-judge panel of the Third Circuit disagreed, and Alito wrote on their behalf that the schools’ policy went much further than federal law, both in the categories that were protected and the type of conduct that was prohibited. Bush’s Supreme Court pick acknowledged that preventing discrimination in schools is a legitimate and compelling government interest, but concluded that the anti-harassment policy was too broad, blocking even pure speech that happens to “offend” another student.

“Insofar as the policy attempts to prevent students from making negative comments about each others’ ‘appearance,’ ‘clothing,’ and ‘social skills,’ it may be brave, futile or merely silly,” Alito wrote, quoting the harassment policy. “But attempting to proscribe negative comments about ‘values,’ as that term is commonly used today, is something else altogether.”

Alito never touched on the plaintiffs’ particular desire to discuss in school their religious teachings against homosexuality, but he did note that the policy specifically listed as harassment several types of speech that he considered “core” speech protected by the First Amendment, including: “‘negative’ or ‘derogatory’ speech about such contentious issues as ‘racial customs,’ ‘religious tradition,’ ‘language,’ ‘sexual orientation,’ and ‘values.’” Such speech, he wrote, “when it does not pose a realistic threat of substantial disruption, is within a student’s First Amendment rights.”

Gay activists have expressed mixed views on anti-harassment policies, with some, including veteran D.C. gay activist Frank Kameny, saying the policies infringe on free speech rights and push “political correctness.” Other activists have said such policies, including those enacted by universities, are needed to curtail anti-gay harassment by hostile fringe groups.

Lambda Legal, the leading gay legal group, issued a statement Wednesday calling Alito’s ruling in the matter a “red flag” that raises serious concerns for the group.

“Many LGBT students report that they are subjected to verbal harassment,” Lambda Legal’s Jon Davidson is quoted ...

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