10 GAY PEOPLE'S CHRONICLE November 25, 2005

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If he is confirmed, Alito's legacy could be a long one

by Earl Pike

The president's nomination of Samuel Alito to serve on the United States Supreme Court has generated furious debate and lobbying, mostly about how a newly-constituted Supreme Court might rule on Roe v. Wade.

Reproductive rights are a critical issuethey lie at the center of medical and personal rights overall but there are other issues of concern to the AIDS and LGBT communities as well. Supreme Court rulings; they govern and shape what we do in our daily lives, in our most private interactions with others.

One way that the court has had an impact on people with HIV is through its interpretive rulings on the Americans with Disabilities Act-perhaps the most groundbreaking federal legislation protecting the employment rights of people with HIV.

In its most important decision (Bragdon v. Abbott, 1998), the court ruled that the presence of disabling opportunistic infections was not required in order for an individual to gain protection from the ADA. HIV infection, by itself, was "disabling." Given that most people with HIV, most of the time, will not have seriously disabling opportunistic infections, but may be subject to discrimination by an employer, the ruling was an important clarification of the scope of ADA protections.

Since then, the court has decided 20 ADA cases, often by a slim majority. The National Coalition for Disability Rights reports that Justices Antonin Scalia and Clarence Thomas have ruled against the rights of people with disabilities time and time again, and has predicted that one or more justices in their vein could lead to reversals in historic gains made by people with disabilities.

Given that much has been made of the fact that Alito is very much in the Scalia moldhis nickname is "Scalito”—this should give people with HIV and their advocates cause for concern.

Alito does have a record on HIV and the Americans with Disabilities Act. While on the Third Circuit Court of Appeals he has ruled on several cases.

In Doe v. County of Centre (2001), the Third Circuit ruled that Children and Youth Services of Centre County, Pa., had the right to refuse placement of a foster child in a family where one child already had HIV, even though there was no indication that the HIVpositive child exhibited behavior (such as aggressive biting) that might, under extraordinary conditions, put an HIV-negative child at risk.

Despite finding that "the chance of HIV infection from casual contact is virtually nonexistent," the court accepted the county's argument that the HIV-positive child in the Doe household could turn out to be a sexual predator (even though he was not), because it had sometimes occurred in the past that a child placed in foster care was later found to be a predator.

In other words, the county contended that a theoretical possibility of harm existed-not

a personally assessed possibility of harm— and the Third Circuit supported that theory. Alito has ruled on other ADA and HIV cases as well, and his decisions reinforce that viewpoint that he is a strict conservative.

as

The Supreme Court has had a dramatic impact on the lives of lesbian, gay, bisexual and transgender Americans well. In Lawrence v. Texas (2003), the court overturned a Texas statute that made same-sex "sodomy" illegal-a significant victory for LGBT privacy and self-determination. Justices Scalia and Thomas filed dissents against the majority opinion.

Samuel Alito

In Romer v. Evans (1996), the court held that Colorado could not prohibit cities and counties from enacting or enforcing legislation that protects LGBT civil rights (a ruling with implications for the Cleveland Heights domestic partner registry in relation to Ohio's marriage ban amendment, which also bans things that "approximate” marriage). Again dissenting were Justices Scalia and Thomas.

In Boy Scouts v. Dale (2000), the court held that the Boy Scouts of America was within its First Amendment rights to revoke the membership of a scoutmaster and former Eagle Scout who was openly gay.

Alito has a long record in cases involving civil rights, government intrusion in personal affairs, and the rights of individuals in relation to corporations. One ruling that has received considerable attention-deservedly so—is Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

When the state of Pennsylvania enacted legislation that required women to notify their spouses about a planned abortion (among other burdens), Planned Parenthood sued, and the case made its way to the Third Circuit.

In a complicated ruling, Alito upheld the proposition that a requirement of spousal notification for abortions was legal. Women's rights activists were furious, for good reason: the notion that a woman, perhaps in an abusive relationship, would be mandated to notify her spouse (and perhaps abuser) of an abortion seemed, and still seems, ludicrous.

The Supremes matter. Even more importantly, they can matter for a long time: Justices can sit on the bench for 25-30 years and affect a whole generation of legal reasoning and philosophy and individual rights. While people with HIV and members of LGBT communities do not get to vote on a nomination, they can and should let their senators know what they think about the president's nominations. Now is the time.

Crystal Klein contributed legal research to this article.

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