Background: Why the LGBT and HIV Communities Must Keep William Pryor Off The Federal Bench
Courting Justice Campaign
Published 04/25/05
Lambda Legal opposes the renomination of former Alabama Attorney General William H. Pryor Jr. to the U.S. Court of Appeals for the 11th Circuit. The 11th Circuit hears cases appealed from trial-level federal courts in Alabama, Florida and Georgia.
Pryor was previously nominated to the 11th Circuit by President George W. Bush but failed to win Senate confirmation largely because of his extreme judicial views, hostility to LGBT litigants and other civil rights claimants, disregard for the constitutional doctrine of church-state separation and refusal to distinguish his personal religious and political beliefs on the one hand and legal standards on the other. In fact, the Atlanta Journal-Constitution describes Pryor as a “right-wing zealot [who] is unfit for confirmation.” After Pryor’s nomination failed in the Senate, President Bush, in a highly unusual move, temporarily placed Pryor on the 11th Circuit while the Senate was in recess. During his short tenure on the appeals court, Pryor cast the deciding vote that delivered the death knell to a constitutional challenge to Florida’s unique and notorious antigay adoption law, which prohibits gay men and lesbians from adopting under any circumstances. This came as no surprise, since Pryor is perhaps the most demonstrably antigay judge nominated to a federal appeals court in our memory.
Lambda Legal’s opposition to the Pryor nomination is based on far more than differences of opinion about how a particular case should be resolved or how a particular issue should be addressed. Indeed, we understand full well that a reasonable and principled application of the law can sometimes lead to conclusions with which we disagree, and that a nominee’s fitness to serve is not determined by the degree to which she or he rules in favor of our litigation positions. However, in William Pryor we have a nominee with a consistent track record, and that record makes clear that he is guided neither by respect for the legal system and legal principles nor by a commitment to ensuring that the Constitution’s guarantee of equality is real for all people. Instead, it is painfully obvious that Pryor’s approach to legal questions often is dictated by his extremely conservative and deeply held personal, political and religious beliefs, which include an aggressively antigay stance.
Pryor’s biased and preordained approach to the civil rights claims of LGBT people is greatly in evidence in the friend-of-the-court brief he authored in Lawrence v. Texas when he was attorney general in Alabama. (In Lawrence, the U.S. Supreme Court overruled its prior decision in Bowers v. Hardwick and held that the country’s remaining sodomy laws were unconstitutional.) Pryor’s brief in Lawrence, which was joined only by Utah and South Carolina, displayed more hostility to gay people than either the briefing from the State of Texas (which was defending its sodomy law in Lambda Legal’s case challenging it) or the Supreme Court’s notoriously homophobic decision in Bowers. The brief went well beyond any reasonable discussion of the law to aggressively embrace the most virulent strains of antigay bigotry. For example, Pryor’s brief placed the right to sexual intimacy for gay people on a legal par with “prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia.” Pryor described the claims of gay people that it was unconstitutional to criminalize the private, consensual, noncommercial sexual intimacy between adults as follows: “For all intents and purposes, petitioners seek to enshrine as the defining tenet of modern constitutional jurisprudence the sophomoric libertarian mantra from the musical Hair: ‘be free, be whatever you are, do whatever you want to do, just as long as you don’t hurt anybody.’” Indeed, Pryor’s interest in the Lawrence case was so strong that he took the unusual step of petitioning for leave to participate in oral argument as a friend of the court. (The Supreme Court denied Pryor’s petition.)
Pryor’s unusual interest and skewed perspective in the Lawrence litigation were not unique. Several years earlier, as assistant attorney general, Pryor was a strong supporter of Alabama’s decision to file a friend-of-the-court brief against the gay litigants in Romer v. Evans. (In Romer, the Supreme Court invalidated Amendment 2, a Colorado constitutional provision enacted by the state’s voters to categorically prohibit any legal prohibition on sexual orientation discrimination.) Unlike the Lawrence litigation, where Alabama’s sodomy law was in play, the state had no clear stake in Romer. In discussing Romer, Pryor echoed the rhetoric of antigay activists and labeled the dispute as one about “special privileges or rights for homosexuals.” (This position was squarely rejected by Justice Anthony Kennedy, writing for the majority in Romer: “We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”) Pryor subsequently characterized the Supreme Court’s decision in Romer as “new rules of political correctness for decision-making in the equal protection arena.”
Most recently, while briefly sitting on the 11th Circuit due to his recess appointment, Pryor cast the deciding vote to deny en banc review in Lofton v. Secretary of the Dept. of Children and Family Services, dooming a constitutional challenge by gay litigants and their families to Florida’s categorical prohibition on adoption by gay people. The full 11th Circuit was evenly split (6-6) on whether to grant review in the face of an appellate panel opinion that was extraordinarily results-oriented and inattentive to the Supreme Court’s decision in Lawrence v. Texas. Lambda Legal finds it instructive that six judges in this increasingly conservative circuit voted to rehear Lofton, with three citing the existence of a “serious and substantial question” as to the constitutionality of the Florida statute, and three more (including an appointee of the first President Bush) stating their belief that the statute violates the Equal Protection Clause of the U.S. Constitution.
Pryor’s roles in the Lawrence, Romer and Lofton cases provide compelling evidence that hostility to the legal rights of LGBT people lies at the heart of his right-wing ideology. Indeed, when he was attorney general of Alabama, Pryor used his official government website to promote organizations with a strong antigay agenda. For example, the attorney general’s website included links to the Family Research Council and the American Center for Law and Justice (which regularly intervenes in litigation to oppose legal rights for gay people). The website included no disclaimer or attempt to differentiate between the official legal positions of the Alabama attorney general’s office and organizations sponsored on its website. To the contrary, in numerous public statements, Pryor expressly endorsed such groups. For example, Pryor has declared: “God surely guided Pat Robertson when he founded the American Center for Law and Justice and persuaded Jay Sekulow to lead it ... Together, Pat Robertson and Jay Sekulow have created a powerful adversary of the ACLU, People for the American Way and Americans United for Separation of Church and State.” Unsurprisingly, Pryor has no such words of praise or suggestions of divine inspiration when it comes to organizations that advocate for the constitutional rights of LGBT people. In fact, while Pryor was Alabama’s attorney general, only organizations with strong antigay agendas were promoted on his official website; progay groups were ignored.
Unfortunately, Pryor’s apparent disdain for individual rights is not limited to the LGBT arena. For example, he has characterized the Supreme Court’s decision in Roe v. Wade as “the worst abomination of constitutional law in our history” and described the day Roe was decided as “the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.” (Read Lambda Legal’s backgrounder on how LGBT rights and reproductive freedom are inextricably linked.)
Lambda Legal is also deeply troubled by evidence of Pryor’s express disregard for the Establishment Clause and the constitutional doctrine often referred to as “separation of church and state.” In fact, Pryor has crusaded in favor of a legal regime that openly embraces his own conservative religious beliefs. For example, Pryor long has been a supporter of former Alabama Supreme Court Justice Roy Moore’s efforts to display a large monument of the Ten Commandments in the rotunda of the Alabama Supreme Court. At a “Save the Commandments” rally he attended in Montgomery, Alabama, Pryor stated, “God has chosen, through his son Jesus Christ, this time and place for all Christians ... to save our country and save our courts.” In a speech at a Christian Coalition “Road to Victory” rally, Pryor declared, “Tonight, I bring good news that illustrates the importance of this organization and the impact that Christians of all traditions — Protestants, Catholics and Orthodox — and other people of faith can have by working to promote the perspective of our Founding Fathers that we derive our rights from God and not from government.” Lest there be any question as to whether or how this religious rhetoric would affect Pryor’s judicial philosophy, in a 1997 article he beseeched the Supreme Court to “modify the errors of case law that created the so-called separation of church and state.”
Lambda Legal is also extremely concerned about Pryor’s results-oriented support for “states’ rights” in the service of an extreme perspective on the role of federalism in our system. The conservative Weekly Standard named Pryor one of the five true “champions” of “states’ rights,” and this title appears well deserved. While Alabama’s attorney general, Pryor filed friend-of-the-court briefs advocating an extremist version of “states’ rights” in virtually every case where the opportunity presented itself. In those briefs Pryor promoted “a subject that is near and dear to my heart: federalism.” Pryor stood alone among state attorneys general in invoking federalism to advocate cutting back on the Violence Against Women’s Act; he similarly advocated a “states’ rights” approach to weaken the enforcement of the Age Discrimination in Employment Act, the Civil Rights Act of 1964, the Americans with Disabilities Act and the Family and Medical Leave Act. His positions in these cases have gone well beyond what the conservative majority on the Supreme Court has been willing to embrace in their federalism revolution.
In a speech to the Federalist Society, Pryor criticized the Supreme Court’s decision in Romer v. Evans as “both antidemocratic and insensitive to federalism.” This critique of Romer by Pryor reflects his support for an extremist approach to federalism that would cede extraordinary power to the states and rob the federal government of much of its ability to protect the civil rights of disadvantaged groups.
In sum, William Pryor’s record reflects a pattern of consistent departure from the legal mainstream in the service of his personal, deeply conservative religious and political beliefs. Those beliefs include unremitting hostility to constitutional claims by LGBT litigants and a similar disdain for individual rights in other contexts. Pryor is not fit to serve on the U.S. Court of Appeals. Lambda Legal therefore calls on the Senate to reject his nomination.
