As a college senior at Princeton University, Samuel A. Alito Jr. wrote a report that recommended the repeal of laws that made sex between gays a crime and urged new antidiscrimination laws for gays in the workplace.
He was writing as the chairman of a 16-member student conference that had been asked to examine the “boundaries of privacy in American society.”
The 1972 report takes a decidedly liberal view on a number of issues. “It is quite wrong for military intelligence to get deeply involved in domestic intelligence,” Alito wrote. This was at a time when the Nixon administration was being criticized for using the Army to spy on Vietnam War protesters.
But the report’s one-paragraph recommendation on “laws concerning homosexuality” is likely to draw the most attention now that Alito has been nominated to the Supreme Court.
The issue of gay rights has sharply divided the high court and will likely continue to do so. However, as a U.S. appeals court judge, Alito has not ruled squarely on the gay rights controversy.
His student report urged legal changes that were far ahead of their time.
“The conference voted to recommend that the current sodomy law be changed,” he wrote. “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.”
It is not clear that young Alito endorsed each of the recommendations, but his report says in its first sentence that the student conference “agrees unanimously” that privacy is a “value of fundamental importance.”
The Boston Globe first reported Alito’s student report, which was on file in the Princeton University library.
The report emerged from a class project in the fall of 1971 and was filed Jan. 4, 1972, the year Alito graduated from Princeton and enrolled in Yale Law School. The Globe quoted a former classmate of Alito’s as saying that the future judge’s role in the report was largely advisory.
A leading gay rights group said it was encouraged upon learning of Alito’s paper.
“This is a hopeful sign that may provide insight into his philosophy,” said Joe Solmonese, president of the Human Rights Campaign. “There were very few people standing up for gay Americans 34 years ago.”
Jan LaRue, chief counsel for the conservative Concerned Women for America, said she was not greatly troubled by it.
“This was 34 years ago, and it was a policy paper. It doesn’t tell us how he would rule as a judge,” she said. “We also don’t know how much of this was his writing. So it doesn’t raise a great concern for me.”
The recommendations by Alito’s group came long before the gay rights movement gained political power. They also were made when most states had sodomy laws that criminalized sex between gays.
Until 1961, all states outlawed sex between gay adults. Many of those measures were repealed during the 1970s.
However, when the Supreme Court took up a “right to privacy” challenge to antisodomy laws in 1986, laws in 26 states set prison terms for adult homosexuals who were convicted of sodomy.
In a 5-4 decision, the Supreme Court rejected a challenge to Georgia’s antisodomy law that year and upheld the prosecution of a gay man. The Constitution does not include “a fundamental right to engage in homosexual sodomy,” the majority said in Bowers vs. Hardwick.
Two years ago, however, the Supreme Court took up the issue again and overruled the Bowers decision. The 6-3 ruling in Lawrence vs. Texas struck down the last laws that criminalized sex between gay adults. Justice Anthony Kennedy said that gay and lesbians couples were “entitled to respect for their private lives,” not prosecution by the government.
The decision was strongly condemned by conservatives, including Justice Antonin Scalia. “The court has taken sides in the culture war
In the years ahead, the court is likely to face questions involving same-sex marriage or disputes involving adoptions and civil unions.
Alito’s student recommendation on hiring discrimination has yet to be translated into law. Although some states, including California, forbid workplace bias against gays and lesbians, Congress has not passed a federal law barring such discrimination by employers.
The report does not discuss abortion. It was a year later that the Supreme Court cited the right to privacy when it struck down criminal laws against abortion in Roe vs. Wade.
Most of the report dealt with threats to privacy from the government, from new computer technology and from private businesses that were gathering data on consumers.
“At the present time, we sense a great threat to privacy in modern America,” Alito wrote. “We all believe that privacy is too often sacrificed to other values; we all believe that action must be taken on many fronts now to preserve privacy.” He recommended that Congress prohibit “domestic surveillance” by the CIA and the military. He also called for stronger laws to limit wiretapping and electronic surveillance.