Hearings prompt ongoing concerns about Samuel Alito nomination; Task Force reiterates its adamant opposition as hearings close

January 13, 2006

Statement from Eleanor (Eldie) Acheson, Director, Public Policy and Government Affairs National Gay and Lesbian Task Force

Roberta Sklar, Director of Communications

WASHINGTON, Jan. 13, 2006 —The Senate Judiciary Committee today closed its hearings on the nomination of Judge Samuel Alito to the Supreme Court of the United States.

"Despite some testimony positive to LGBT interests from Supreme Court nominee Judge Samuel Alito during his three days of testimony before the Senate Judiciary Committee, the Task Force remains firm in its opposition to the confirmation of Judge Alito to succeed Justice Sandra Day O'Connor as an associate justice of the court.

"In his Senate testimony:

"Judge Alito affirmed a liberty interest right of privacy in the Constitution that extends at least as far as access to contraception by married and single people but did not comment on the Lawrence case, and he stated that Roe v. Wade, as modified by later cases, is a precedent 'entitled to respect' but did not elaborate about the nature and scope of that liberty interest or the abortion right.

"Judge Alito, addressing a case brought by students seeking to protect their right to express anti-gay views, for which he received an award from the Family Research Council, explained his vote against the constitutionality of an extraordinarily broad school anti-harassment policy as required by the controlling constitutional standard, a view we share, and offered up his ruling in another case where he voted to allow a student thought to be gay to transfer to another school because the 'student had been bullied the point of attempting...suicide' as an example of favoring 'the small person.'

"Judge Alito listened, without a hint of his views, to Sen. Brownback talk about same-sex marriage legal issues and legal challenges to DOMA, responding only that the DOMA litigation involved questions about the scope of the Constitution's Full Faith and Credit Clause.

"Judge Alito told Sen. Feingold that he did not see why Congress could not legislate to prohibit employment discrimination against gays and lesbians, or why Congress could not condition federal school funding by requiring anti-harassment policies.

"And when questioned by Sen. Kennedy about the appalling statements concerning gay people ascribed to CAP (Concerned Alumni of Princeton), Judge Alito registered immediate, palpable and sincere horror and disgust with the nature of what was said.

"We are, of course, gratified by his personal sensibilities and his views and rulings as far as they go. But, simply stated, they do not go far enough. They do nothing to change our view that his appointment to the Supreme Court would present a mortal threat to the constitutional protections we have and those constitutional and other legal protections we hope to have.

"Nothing in Judge Alito's testimony or record indicates the scope of the liberty interest right of privacy he acknowledged at the hearing, so we have no certainty, comfort or, indeed, any idea about whether he sees 'autonomy of self' as an animating aspect of the right or how he views the protection of adult consensual sexual relations in Lawrence. Moreover, his testimony did make plain that he accords a higher, more secure constitutional status to those rights and protections actually articulated in the Constitution. Illustrative of that was his refusal to call the right to abortion under current case law 'settled law.' And, ominously for privacy interests as well was Alito's apparent ranking of Supreme Court precedent: he proclaimed Brown v. Board established law but spoke of other, more recent cases in terms of how closely the case was decided in terms of the Court vote, how many times the precedent was reaffirmed and whether the issue and precedent was still being litigated.

"And nothing in his testimony eliminated or even lessened the other reasons for our concern. We were and continue to be worried about the equal protection rights to be free of legal disabilities based on the views of others recognized in Romer v. Evans. Indeed, Judge Alito's forceful support for a robust First Amendment religious expression rights suggests a reciprocally diminished right to be free of the religious views of others in public space and public policy.

"While Judge Alito told Sen. Feingold that he couldn't think of a bar to a federal employment nondiscrimination law, the fact of the matter is that in several cases involving challenges to Congressional authority to legislate on plainly national matters, Judge Alito voted that Congress had exceeded its power. Further, Judge Alito's 1986 memo saying that then existing health nondiscrimination law did not protect against adverse employment action based on fear of contagion and senators' hearing questions and Judge Alito's answers clearly demonstrated his dim view of employment and other discrimination laws and his record against the individual claimants in such cases. So maybe someday we will have nondiscrimination legislation, but will we have a Supreme Court setting up barriers to its enforcement?

"Like many senators and, we believe, millions of Americans, we wish we had heard a lot more of substance from Judge Alito in his testimony before the Senate, and we wish we had heard a ringing endorsement of individual rights including privacy to the full extent of Lawrence and of equal justice under the Constitution for all — including LGBT — Americans. Regrettably we did not hear any such thing, and we remain adamantly opposed to his appointment."


The mission of the National Gay and Lesbian Task Force is to build the political power of the lesbian, gay, bisexual and transgender (LGBT) community from the ground up. We do this by training activists, organizing broad-based campaigns to defeat anti-LGBT referenda and advance pro-LGBT legislation, and by building the organizational capacity of our movement. Our Policy Institute, the movement’s premier think tank, provides research and policy analysis to support the struggle for complete equality and to counter right-wing lies. As part of a broader social justice movement, we work to create a nation that respects the diversity of human expression and identity and creates opportunity for all. Headquartered in Washington, D.C., we also have offices in New York City, Los Angeles, Miami, Minneapolis and Cambridge.