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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

    

The Supreme Court and its Impact on the HIV/AIDS and LGBT Communities[1]

 

Introduction

The Supreme Court has long been the final recourse of the oppressed and disenfranchised and demonized. Arguably, it is the branch of government most likely to respond not to the numbers of the majority, but to the rights of the marginalized minority. Today, when two out of three branches of the government are dominated by a conservative agenda, it is even more critical that the high court uphold the rights under attack by Congress and the White House.

The nomination of John Roberts to the Supreme Court has been met with strong opposition from social and economic justice organizations around the country, including HIV/AIDS and lesbian, gay, bisexual, and transgender (LGBT) organizations, and rightfully so. Even before it was revealed that Roberts advised President Reagan not to assure the American people that AIDS is not transmissible through casual contact,[2] it was evident that his ascendance to Justice would be spell disaster for people living with HIV/AIDS (PLWHA) and the LGBT community.[3]

Opposition to Roberts is just the first step. Beyond this confirmation and the next may lie ten, twenty, or thirty years of a hostile court.

For the LGBT and HIV/AIDS communities, the stakes could not be higher. We must anticipate a court that may well let stand attacks on civil rights, Roe v. Wade, civil liberties, and immigrant rights; a court that rubber stamps gender discrimination and sex discrimination; a court that does not recognize a fundamental right to privacy.

The pages the follow are both primer and preparation; an attempt to ready ourselves and our communities for the struggle ahead.  Part I examines the consequences of an ideological shift in the court, deconstructing the meaning of federalism, court-stripping, and “strict contructionism.” Part II provides a brief, issue-by-issue overview of what the HIV/AIDS and LGBT communities may be confronting in the years ahead. While there is little doubt that gay marriage will eventually come before the court, decisions on other issues with far-reaching, long-lasting, and potentially devastating effects for LGBTs and PLWHA also loom: Roe v. Wade; privacy rights; the Americans with Disabilities Act; civil rights and equal protection; separation of church and state; immigrant rights; and First Amendment protections.

 

I. The big picture: federalism, strict constructionism, and expansion of executive power

The new court may well be defined by its ideological commitments to federalism, so-called strict constructionism, and increased power of the executive. In the current political climate, deference to any one of these paradigms could mean the erosion of rights and protections for any number of stigmatized groups and individuals, with devastating effects on the LGBT and HIV/AIDS communities.

Federalism a.k.a. “states’ rights”& court stripping

In the literal sense, “federalism” refers simply to the distribution of power between the federal government and the states. In judicial philosophy and political practice, federalism is understood to elevate states’ rights and diminish the role and the reach of the federal government.

Historically, federalist, or “states’ rights,” arguments have been deployed to undercut national efforts to enact civil rights laws and enforce voting rights, desegregation, and equal protection guarantees. A Supreme Court guided by strict federalist principles is likely to limit the scope of federal civil rights laws, including the landmark 1965 Voting Rights Act (currently up for renewal) and the Americans with Disabilities Act (ADA). For example, a federalist court could rule that the use of the ADA to sue in state court is an infringement on states’ rights.

For over fifty years, the Supreme Court has been an important check against excessive state rights’ claims; addressing institutional bias and disfranchisement when the states would not.

Without the Supreme Court, the South would still be segregated, illegal abortions would be claiming thousands of lives, the indigent would have no right to a lawyer, and lesbian and gay Americans could be imprisoned for their private sexual conduct.[4]

Closely connected to the federalist doctrine is court-stripping, whereby Congress divests courts (Supreme and otherwise) of their jurisdiction over certain issues. John Roberts, President Bush’s pick to replace Chief Justice William Rehnquist, has argued the legality of stripping federal courts and the Supreme Court of their jurisdiction over broad classes of civil rights cases, including desegregation.[5] He has also argued the constitutionality of restrictions on federal courts’ power to hear school prayer cases and of legislative attempts to stop the Supreme Court from hearing challenges to ‘voluntary’ school prayer laws altogether.[6] 

Congress makes law, but its members are elected by the majority. The high court, being beyond the reach of the electorate, is in a position to protect the minority from the tyranny of that majority. LGBTs and PLWHA have turned to the courts to uphold our civil rights and liberties. No minority can afford to cede this protection.

    

Strict contructionism (a.k.a. originalism, a.k.a. strict constitutionalism)

“The pro-life, pro-family movement has never asked for anything other than a constitutionalist judge; that is, a judge who would interpret the Constitution faithfully, and respect the limits of his [sic] own power and the distinction between interpreting and making the law.

“We are confident that any judge who is faithful to the text of the Constitution and respects the distinction between lawmaking and judging will understand it is the right of the American people to deliberate and decide the question of protecting human life.”

–Tony Perkins, July 21, 2005

 Family Research Council Statement on the Role of a Supreme Court Justice

A strict constructionist reading of the Constitution has been embraced by those who seek to curtail civil rights for LGBTs and reproductive rights and freedoms, and forward a Christian Right agenda. Forty years of social justice gains by the LGBT and HIV/AIDS communities, as well as by women, people of color, people with disabilities, and others, may well be lost if a new majority on the Court interprets the Constitution narrowly, limiting its protection to what is presumed to have been the drafters’ intent. The concept of the Constitution as a living document has already been rejected by Justice Antonin Scalia who has stated that women do not have the right to an abortion because “the Constitution says absolutely nothing about it.”[7]

Looking forward, the issue of originalism will grow more salient, as the court inevitably encounters advances in, and applications of, technology and medical science that the founders could never have imagined.   

Executive powers

The Supreme Court is often the last resort of the aggrieved because it is an independent, separate branch of government and not a mere annex of the executive branch. If the president’s nomination of John Roberts is any indication, that autonomy, and the protection it affords, may be weakened considerably.  As a U.S. Court of Appeals judge, Roberts advanced executive power creep, ruling that the Geneva Convention did not apply to detainees at Guantanamo Bay because the executive branch had the authority to try enemy combatants in military commissions.[8] While this case did not directly address the rights of LGBTs or PLWHA, it is illustrative of what some legal scholars have seen as a larger, aggressive push by the Bush Administration to expand the limits of executive authority.[9]

Should this inflation of executive power extend in other directions, the HIV/AIDS and LGBT communities could be in trouble. A court that does not check the power of an executive who has shown his animus toward gay rights, secularism, civil liberties, and science and his unbridled support of the Christian right’s agenda, champions the presidency at the expense of the people.

II. Issue by issue

The Americans with Disabilities Act

The first case concerning the Americans with Disabilities Act (ADA) to reach the Supreme Court was also the first HIV-related case brought before the nine justices. At issue was the biasing of care according to HIV status.[10] The ADA provides remedy for any individual who can demonstrate that he or she has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” or is “regarded as having such an impairment.”[11]  By just one vote, the court ruled in its 1998 Bragdon v. Abbott decision that HIV does indeed limit a major life activity (in this case reproduction) and is protected by the ADA, ergo healthcare providers cannot refuse HIV+ patients treatment. Chief Justice Rehnquist disagreed, finding that HIV+ people are not entitled to ADA protection on the grounds that reproduction does not constitute major life activity. Had Rehnquist carried the day, access to care for PLWHA would have been radically compromised.[12]

Since Bragdon, the Court has decided twenty ADA cases – often by very slim majorities. The National Coalition for Disability Rights reports that Justices Scalia and Thomas have ruled against people with disabilities time and again and predicts that that one more justice in their mold will mean the erosion, if not outright reversal, of many or the historic gains made by people with disabilities.[13] The first test of this may come as early as November 2005 when the Supreme Court is scheduled to hear oral arguments in the matter of Goodman v. Georgia.  

At issue in Goodman is whether the ADA allows state prisoners to sue the state for disability-based discrimination. While HIV status is not a factor in Goodman, the case has the potential to directly affect the large number of people living with HIV in prisons, many of whom are isolated because of their status and denied access to services and programs offered to non-disabled prisoners.[14]  HIV-positive prisoners are regularly deprived of proper medical treatment, as state prisons often fail to make reasonable accommodations to meet the health standards required to sustain their well-being.[15] A ruling in favor of Mr. Goodman may afford incarcerated PLWHAs a legally recognized cause of action under the ADA and could be applied beyond state prison systems and to other state-run facilities.[16]

Conversely, a ruling against the plaintiff could mean fewer avenues of redress for people who have been discriminated against based on HIV status or AIDS-related disability. If the new court tilts toward a federalist judicial philosophy, it could rule that Congress infringes on states rights when it enacts legislation that exposes states to litigation. Thus, even if the Court acknowledges discrimination, it may decide that there is nothing the federal government can do about it.[17]

Given this, and given the fact that the list of major life activities has been narrowed throughout the history of ADA litigation, it is critical that the next Supreme Court justice give great deference to Congress’s original intentions in creating the ADA and interpret it broadly.

Civil rights & equal protection

In 1992, voters in Colorado approved Amendment 2 – barring local governments from enacting laws that protect against discrimination based on sexual orientation. Four years later, in Romer v. Evans, the Supreme Court ruled that Amendment 2 violated the equal protection clause. Justices Rehnquist, Thomas, and Scalia dissented.  Scalia wrote that the measure was constitutional because it reflected voters’ “moral disapproval of homosexual conduct.”[18] The same assertion was made in the 2003 Lawrence dissent, where the same three justices defended sodomy laws as promoting “majoritarian sexual morality.”[19] This type of argument presents a double threat for the LGBT community.

First, if accepted by the highest court in the land, the premise that personal morality as defined by the majority determines constitutionality could decimate civil rights; protections for racial, ethnic, and religious minorities, women, secularists, LGBTs, and PLWHA. would be left vulnerable to popular fiat.

Second, any manner of discrimination in accommodation, service, housing, employment, and medical care could be justified by citing religious belief. According to the Gay and Lesbian Medical Association, numerous states are considering legislation that would allow medical providers to deny health care to certain patients by citing “moral or “ethical” beliefs.[20]

In California, Benitez v. North Coast Women’s Care Medical Group provides a cautionary tale of how health care access can be limited or even withheld by deploying a religious rationale.  Guadalupe "Lupita" Benitez is a lesbian. Her fertility doctors, who inseminate other women as part of their California practice, refused to do the same for her. They are asserting a religious exception to the state’s civil rights laws, maintaining that they need not comply because they are fundamentalist Christians. As of this writing, parties are awaiting an oral argument date in the California State Court of Appeals.

A Supreme Court dominated by a judicial philosophy such as Scalia’s or Thomas’s will allow Christian fundamentalist belief to eclipse all other ethical compasses and trump antidiscrimination guarantees. LGBTs and PLWHA know too well the perils of medical neglect, bias, and abuse that have often been cloaked in religious rhetoric.

Our experience teaches us that a religious exception to anti-discrimination laws means an end to fair health care access for all.  If doctors are allowed to deny treatment to people with whom they have a religious objection, clients such as ours will again be put at great risk and the stigma of HIV/AIDS will intensify, with terrible repercussions.

– Oscar De La O, Executive Director of Bienestar Human Services[21]

Roe v. Wade, Lawrence, privacy, and health care access

We are as close to seeing Roe v. Wade overturned as we have ever been. In addition to a political and ethical commitment to reproductive rights and freedoms, the HIV/AIDS and LGBT communities have relied on Roe as settled law – both as individuals who availed themselves of safe, legal, and accessible abortions, and as constituencies who cited the 1973 decision as a supporting legal precedent in Lawrence v. Texas. The latter Supreme Court ruling overturned sodomy laws in Texas (and in the twelve remaining states where they were still on the books) as a violation of privacy rights under the due process clause of the 14th Amendment. At the time, some commentators predicted that the 2003 decision would signal an expansion of privacy rights. That optimism could prove to be premature.  Justices Scalia and Thomas have already ruled elsewhere that as far as bodily integrity or reproduction is concerned, there is no Constitutional right to privacy.[22] This could well become the majority opinion of a new Supreme Court.

Both Roe and Lawrence rest on Fourteenth Amendment protections (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”). As Roe goes, so too may go LGBTs rights to bodily integrity, sexual intimacy, and privacy. Even if the Court does not overturn Roe, it may significantly undermine its applicability by placing undue burdens on providers, advocates, and women seeking abortion and other reproductive services. Richard Schragger, a professor at the University of Virginia School of Law, warned that a reconstituted court “will have to decide the constitutionality of bans on so-called partial-birth abortion, and it may have to address revived state spousal-notification laws and restrictions on abortion providers, such as zoning laws or government filing requirements.”[23] 

If banning medical procedures, notifying third parties, or zoning providers out of given localities are declared constitutional, health care access in general will be further compromised. It was already dealt a blow by the Rust v. Sullivan decision in which the high court upheld a gag order on doctors working in federally funded programs, barring them from discussing abortion with their patients. A gag order on anybody hurts everybody. Censoring doctor-patient communication sets a bad precedent – one that would jeopardize the lives of people with HIV/AIDS who rely on free, unfettered, information, and would severely undercut prevention and education efforts.

    

Gender discrimination and civil rights

For the last fifteen years, individuals who do not conform to mainstream gender roles, or whose gender identity does not follow societal dictates for their biological sex, have turned to federal district and circuit courts to secure their rights.

This recourse, though still limited in significant ways, has begun to open up for transgender people, butch women, femme men, and other gender nonconformists, as a result of the Supreme Court’s ruling in the 1989 Price Waterhouse v. Hopkins case. The court held that a woman who was denied a partnership because she did not “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” could bring claim under Title VII of the 1964 Civil Rights Act. The court determined that Title VII prohibited the “entire spectrum” of sex discrimination, including discrimination on the basis of gender stereotypes.[24]

The Supreme Court in 1989 was very different than the court today. Thurgood Marshall, William Brennan, and Harold Blackmun sat on the bench. Even so, the decision was neither uncomplicated nor unanimous (Kennedy, Scalia, and Rehnquist dissented[25]), making it all the more important that future justices demonstrate their commitment to an interpretation of Title VII that upholds equity for all gender transgressors and nonconformists.

Church-state separation and the intrusion of religion into science, social services, public policy

As legal scholar Richard Schragger noted, church-state jurisprudence often turns on a single vote.[26] The next justice, he wrote, “could provide the fifth vote to return prayer to schools, allow a significant expansion of government-sponsored religious displays and funnel more money to faith-based service providers.”

History has shown that LGBT people, and not only LGBT people, have faced discrimination when religion has intruded into the public sphere. The accelerating encroachment of religion into the realms of science, social services, public policy, and education poses a significant hazard to the HIV/AIDS and LGBT communities. Under the present administration, the Christian Right has destabilized AIDS care, treatment and prevention in the U.S. and abroad. Life-saving research has been squelched to the extent that scientists have been advised by the National Institutes of Health to self-censor their funding proposals.[27] The federal government has dispatched auditors pursuing a conservative Christian agenda to scrutinize AIDS organizations. Abstinence-only mandates and anti-condom disinformation campaigns menace domestic and international efforts. It is in this larger context that the Christian Right’s progress in the judicial arena must be viewed.

A core component of the Christian Right’s agenda has been to secure religious exceptions to civil rights protections. The biasing of patient care [see above] is but one example. In the years ahead, the courts may address the constitutionality of the administration’s Faith-Based Initiative, whereby religious organizations receive public money to operate social service programs. The initiative would exempt these organizations from employment antidiscrimination laws, diverting scarce funding to religious entities who openly admit their noncompliance with the civil rights law. 

Congress will likely take up the Faith-Based Initiative piecemeal, as federally funded programs come up for reauthorization. Proponents of “charitable choice rules” will attempt to eliminate civil rights protections from these programs. With two out of three branches of the federal government moving to enshrine employment discrimination in tax-supported programs, there is a desperate need for the third branch, the Supreme Court, to hold the line if called upon to do so.

Immigrant rights

In 1952, Congress passed the Immigration and Nationality Act, better known as the McCarran-Walter Act. Among those listed as “ineligible to receive visas” and “excluded from admission” were “aliens afflicted with psychopathic personality” and those “coming to the United States to engage in any immoral sexual act.” Also declared inadmissible were “[a]liens afflicted with …any dangerous contagious disease.”[28] These provisions laid the foundation for the U.S. immigration ban on lesbian, gay, and bisexual immigration – on the books until 1990 – and the existing bar on HIV-positive individuals – added to the exclusion list in 1987 by the Department of Health and Human Services (more specifically by the U.S. Public Health Service). When HHS later tried to reverse this move, Congress stepped in and codified the ban. The resulting 1993 law continues to block entry to HIV positive people and deny any type of legal status to positive immigrants already in the country except in extremely limited circumstances.

While it is true that Congress has near absolute power over immigration regulation, the courts have issued rulings of immense importance to the LGBT and HIV/AIDS communities. In the 1967 Boutilier v. Immigration and Naturalization Service decision, the Supreme Court upheld an order of deportation issued solely because Boutilier was gay. The court found that his homosexuality confirmed that he was “afflicted with a psychopathic personality,” statutory grounds for exclusion.[29] Consequently, the ban stood for another 23 years.

It was a federal court judge who ordered the U.S. government release over two hundred HIV-positive Haitians from Guantanamo Bay in 1993. Deemed inadmissible because of the HIV Bar, some had been held for as long as two years before the order granted them entry into the U.S.[30]

In 2000, the Ninth Circuit Court of Appeals ruled in favor of a female-identified gay man seeking asylum. The Hernandez-Montiel v. Immigration and Naturalization Service  ruling concluded that “In Mexico, gay men who have female sexual identities constitute a particular social group for asylum purposes.” In the opinion of the Ninth Circuit, Hernandez-Montiel had established both “past persecution and a well-founded fear of future persecution upon return to Mexico.”[31]

The significance of the Ninth Circuit’s ruling in Hernandez cannot be overstated. It continues to be cited by attorneys and advocates for LGBT immigrants. These are inhospitable times for immigrants and for LGBTs; we can ill afford a Supreme Court, charged with upholding or striking down lower court rulings, that is equally hostile.[32]

Solomon Amendment, First Amendment

The next explicit LGBT rights case the court will hear will undoubtedly be FAIR v. Rumsfeld.[33] Since 1990, the Association of American Law Schools has required all its member schools to ban recruiters from firms who do not “observe the principles of equal opportunity.” This includes the armed forces. The Solomon Amendment is Congress’s response to the AALS regulations. In short, federal funding is conditioned on accommodation of an openly and admittedly discriminatory recruiter. Any school that limits the efforts of military recruiters on its campus will be denied grants and contracts from the U.S. Departments of Health and Human Services, Education, Labor, and Transportation (not to mention the CIA, the Departments of Homeland Security and Defense, and the National Nuclear Security Administration).  The high court will decide whether Solomon violates the schools’ First Amendment rights to protest against discrimination based on sexual orientation. In so doing, it may go a long way toward establishing the limits of dissent and of First Amendment protections; protections upon which movements for liberation and equality are intrinsically based.

Conclusion: Thinking past the first Monday in October

 

Social movements, not just Supreme Court justices, make law.

–Lani Guinier[34]

 

The height of the bench and the cut of the robes notwithstanding, the nine justices of the Supreme Court are flesh and blood; products of the times they live in – not disinterested or dispassionate observers of their age.  They stand, like all of us, inside history, not apart from it.  There is a relationship between social movements and Supreme Court decisions.  Just as advocates select and litigate cases tactically, when they perceive the sweep of history to be on their side, justices themselves respond to a movement’s demands by either affirming or undermining its claims. In other words, there are reasons Dred Scott was decided as it was in 1857 (in a 7-2 decision) and Brown as it was almost one hundred years later (a unanimous ruling).

Of course, social movements come from all quarters and the politically unpopular seldom control the zeitgeist. There is certainly every reason to expect that the courts, in either majority or dissent, will respond to the rise of the Christian Right. Its rhetoric has already permeated the high court, as when Justice Scalia opined in his Lawrence dissent that “law-profession culture…has largely signed on to the ‘homosexual agenda.’”[35]

Admittedly, the future of egalitarianism looks grim, but if the triumph of justice is not inevitable, neither is its disintegration. The LGBT and HIV/AIDS communities need not be prophetic, merely visionary (as usual), strategic, and unyielding in our pursuit of a fully inclusive, fully human, human rights agenda.

For starters, we cannot be afraid to articulate what we want when it comes to filling vacancies on the bench, even if we know we won’t get it. While there has been much discussion of the need for a “moderate” and a “consensus builder” on the court, it falls on our communities to ask: What is moderate in this climate? Whose issues and interests will be sacrificed in the name of consensus?

Now is the time to ask: What is our non-negotiable bottom line? What would trigger an all out call to arms? How do we move forward (or at least slow a backward slide) under the new court? When do we consider litigation and when do we avoid it at all costs? What kinds of movement building can we do, thinking five, ten, twenty years down the line?

We either raise these questions now, or live with the answers others provide. The urgency could not be greater.

[1] Prepared by Nancy Ordover, PhD, for Gay Men’s Health Crisis. Copyright 2005, Gay Men’s Health Crisis, all rights reserved.

[2] “Roberts Resisted Women’s Rights,” Washington Post, 19 August 2005.

[3] “Gay Men’s Health Crisis Opposes Nomination of John Roberts as a Threat to HIV/AIDS and LGBT Communities,” press release, 20 July 2006. Retrieved 12 August 2005 from http://gmhc.org/about/releases/050720.html .

[4] Anthony Romero, cited in American Civil Liberties Union, “ACLU Calls for Full Examination of Roberts’ Positions; Notes Influence In Troubling Reagan, Bush I Administration Cases,” 19 July 2005. Retrieved 12 August 2005 from  http://www.aclu.org/court/court.cfm?ID=18795&c=316.

[5] R. Jeffrey Smith, Amy Goldstein, and Jo Becker, “A Charter Member of Reagan Vanguard: Court Nominee Was Part of Legal Team Seeking to Shift Course on Civil Rights Laws,” The Washington Post, 1 August 2005.

[6] CNN, “Roberts documents reveal a conservative” 28 July, 2005. Retrieved 12 August 2005 from http://www.cnn.com/2005/POLITICS/07/27/roberts.documents/index.html.

[7] The Justice further stated that this right did not exist because “longstanding traditions of American society have permitted it to be legally proscribed.” Lambda Legal, “Judging the Judges: The Tell-Tale Signs of a Good (or Bad) Judge for LGBT and HIV-affected Communities.” Retrieved 12 August 2005 from http://www.lambdalegal.org/cgi-bin/iowa/courtingjustice/index.html?page=justice_judging.

[8] Richard Schragger, “At Risk: Roe, Rights and Religion,” Los Angeles Times 21 July 2005; PBS, The Journal Editorial Report airdate 22 July 2005. Transcript retrieved 12 August 2005 from http://www.pbs.org/wnet/journaleditorialreport/072205/transcript_leadstory.html.

[9] Marci Hamilton, “The Bush Presidency and Power: The Guantanamo Cases, the Cheney Case, and the 9/11 Hearings,” FindLaw’s Legal Commentary, 22 April 2004. Retrieved 12 August 2005 from http://writ.news.findlaw.com/hamilton/20040422.html.
 

[10] Catherine Hanssens, “A Brief Overview of Bragdon v. Abbott,” The Body, Fall 1998.  Retrieved 12 August 2005.

[11]Americans with Disabilities Act of 1990, retrieved 12 August 2005 from http://www.sba.gov/ada/adaact.txt.  

[12] It is worth noting that Americans for a Sound AIDS Policy (later renamed the Children’s AIDS Fund, campaigned for the exclusion of HIV-positive people from ADA protections. Esther Kaplan, With God On Their Side: How Christian Fundamentalists Trampled Science, Policy, and Democracy in George W. Bush’s White House, (New York: The New Press, 2004) p. 177. CAF is an abstinence-only organization with strong ties to the Christian Right and the Bush White House.

[13] ADA Watch, “”Out of the Mainstream’ Nominee Poses Threat to Americans with Disabilities:Statement of Jim Ward, Founder and President of ADA Watch/NCDR” Retrieved 12 August 2005 from  http://www.adawatch.org/.

[14] American Civil Liberties Union, “ACLU Sues Major Medical Provider Over Deficient Care in Mississippi Prison,” press release, 22 June 2005. Retrieved 10 August 2005 from http://www.aclu.org/Prisons/Prisons.cfm?ID=18560&c=26.

[15]Eartha Jane Melzer, “Supreme Court Nominee Seen as a Step to the Right.” New York Blade, 22 July 2005.

[16] Paul Mata, internal report, “Current Jurisprudence Concerning the Americans with Disabilities Act,” Gay Men’s Health Crisis, August 2005.

[17] Tony Mauro, “ADA Case Could Be Key Test for Roberts,” Legal Times, 8 August 2005

[18] Lambda Legal, “Judging the Judges: The Tell-Tale Signs of a Good (or Bad) Judge for LGBT and HIV-Affected Communities,” retrieved 12 August 2005 from http://www.lambdalegal.org/cgi-bin/iowa/courtingjustice/index.html?page=justice_judging.

[19] People for the American Way, Courting Disaster, (Washington, D.C.: People for the American Way, 2005) p.30.

[20] Gay and Lesbian Medical Association, “Expert Medical, Civil Rights, and Community Health Organizations Unite to Oppose Religiously Based Discrimination in Health Care,” news release, 27 July 2005. This is distinct from a blanket refusal to perform certain procedures or administer certain treatments, also a dangerous trend.

[21] Gay and Lesbian Medical Association, “Expert Medical, Civil Rights, and Community Health Organizations Unite to Oppose Religiously Based Discrimination in Health Care,” news release, 27 July 2005.

[22] People for the American Way, Courting Disaster, (Washington, D.C.: People for the American Way, 2005) p. 23.  

[23] Richard Schragger, “At Risk: Roe, Rights and Religion,” Los Angeles Times 21 July 2005.

[24] Courtney Joslin, “Protection for Lesbian, Gay, Bisexual, and Transgender Employees Under Title VII of the 1964 Civil Rights Act,” Human Rights Magazine, Summer 2004. Retrieved 28 August 2005 from http://www.abanet.org/irr/hr/summer04/protectlgbt.html.

[25] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Retrieved 1 September 2005 from

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=490&page=228

[26]  Richard Schragger, “At Risk: Roe, Rights and Religion,” Los Angeles Times 21 July 2005.

[27] “Certain Words Can Trip Up AIDS Grants, Scientists Say,” New York Times, 18 April 2003.

[28] United States Statutes at Large, 1952, Vol. 66, 82nd Cong., Sec. 212.(a) (4), 212(a)(13), 212(a)(6).

[29] Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 (United States Supreme Court), cited Lambda Legal, “Judging the Judges: The Tell-Tale Signs of a Good (or Bad) Judge for LGBT and HIV-affected Communities.” Retrieved 12 August 2005 from http://www.lambdalegal.org/cgi-bin/iowa/courtingjustice/index.html?page=justice_judging. At the time, Boutilier had been living in the U.S. for twelve years.

[30] Daniel M. Bernstein, HIV/AIDS and Lawful Permanent Residency: An Analysis of the HIV Bar, Waivers, and Prospects for Change, (New York: Gay Men's Health Crisis, Inc., 1999, revised December 2003), p.11 n.56.

[31]Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084 (Federal Court of Appeals for the Ninth Circuit). Case Number: 98-70582  Date Filed: 08/24/00.

[32] It is unlikely that John Roberts will be anything but belligerent to immigrant rights. In 1983, as associate counsel to Reagan, he weighed in in favor of national identity cards as a response to the “real threat to our social fabric posed by uncontrolled immigration.”  “Roberts Resisted Women’s Rights,” Washington Post, 19 August 2005.  Elsewhere he came down in favor of a Texas law that allowed school districts to bar the door to undocumented immigrant children. The Supreme Court, he said, overstepped its authority in overturning the law and the Department of Justice erred by not entering the case on the side of Texas. David E. Rosenbaum, “An Advocate for the Right,” New York Times 26 July 2005, p. 16.

[33] FAIR   stands for Forum for Academic and Institutional Rights.

[34] Chisun Lee, “The Silver Lining of Bush’s Supreme Agenda,” Village Voice, 25 July 2005.

 

[35] Jeffrey Toobin, “Sex and the Supremes,” The New Yorker, 1 August 2005, p. 33.