Reason to Believe

HRC | Alito’s 1971 Gay Support Raises Hope

Well, this is a shocker. A paper written by a committee chaired by Alito during his senior year at Princeton included the following statement (the emphasis is mine): "The Conference voted to recommend that the current sodomy laws be changed. The Conference believes that no private sexual act between consenting adults should be forbidden. Of course, acts of a coercive nature, acts involving minors, and acts which offend public decency should still be banned. Discrimination against homosexuals in hiring should be forbidden."

If Alito continues to agree with his statement in 1971--and I find it hard to believe that someone who was for gay rights in 1971, when it was barely being discussed, is against them now--this would be very good news. Elsewhere in the paper appear the words "privacy is a value of fundamental importance" and a long statement about how privacy, while little-discussed before 1971, is a value that has much to do with liberty and toleration, and also sometimes comes into conflict with the value of community. Thus, the paper states, "we regard it as one important value among many."

How Alito construes privacy in his jurisprudence will be among the most important decisions he makes. Does he continue to believe in privacy as not only a value, but a right? Does it still extend to homosexuals? Would he have voted with the majority in Lawrence v. Texas? These are important questions that I hope he will answer before he becomes a justice. Because while we may not be able to stop him from significantly restricting Roe v. Wade, it matters a great deal what logic Alito and his conservative colleagues use to do so. To put it vividly, the Right seems to regard the right to privacy as bathwater in which babies have been drowned, as the holding in Roe was based in large part on that right. If Alito can find a way to save the baby without draining the bathwater, though, it may not be ideal to pro-choicers, who will have to fight state-by-state to protect a woman's right to control her own body, but it will be a lot cleaner for us than a world without the tub of privacy in which so many other important cases--Lawrence and Griswold v. Connecticut among them--currently soak. An Alito who respects the right to privacy as fundamental and emanating directly from the text of the Constitution is a justice far less frightening to me than he otherwise would be.