As discussed above, Pryor’s efforts on states’ rights and federalism have sought to severely undermine federal statutory and other protections against discrimination based on race, gender, age, sexual orientation and disability. In several of these areas, Pryor’s record reflects that he has sought to damage such vital protections through other avenues as well.
In testimony before a subcommittee of the Senate Judiciary Committee in July 1997 entitled “Judicial Activism: Assessing the Impact,” Pryor was harshly critical of the implementation by the federal courts and the Department of Justice of the Voting Rights Act of 1965, a federal law that has been crucial in enabling minorities to effectively exercise their right to vote. Pryor characterized “the use of the judiciary” under the Voting Rights Act as one aspect of “judicial activism that burden[s] our state government and our citizens everyday.”27 Pryor went even further and told the subcommittee,
I encourage you to consider seriously, for example, the repeal or amendment of section 5 of the Voting Rights Act, which is an affront to federalism and an expensive burden that has far outlived its usefulness, and consider modifying other provisions of the Act that have led to extraordinary abuses of judicial power.28
Pryor’s push to weaken the Voting Rights Act is disturbing. Section 5, for example, is an important part of the Act that requires any changes in voting-related procedures in jurisdictions like Alabama with a specific history of voting discrimination as determined by Congress to be pre-cleared by the Justice Department or the federal district court in Washington D.C. to ensure that they have no discriminatory purpose or effect.29
The continuing importance of the Voting Rights Act, including Section 5, prompted more than a dozen leading veterans of the civil rights movement, who had recently gathered for a commemoration of the movement, to denounce Pryor’s 1997 testimony and oppose his confirmation to the Eleventh Circuit. See Statement of Civil Rights Movement Veterans (May 2003). These civil rights leaders, including Rev. Fred Shuttlesworth, Rev. Jim Lawson, Rev. James Bevel, and Martin Luther King III, stated:
We view the Voting Rights Act as the most important single piece of legislation laid down in our time, for it has transformed our society and signaled the liberation of African Americans. . . Far from outliving its usefulness, the Voting Rights Act has not yet fulfilled its promise. If we are to achieve a truly just and democratic society, the full panoply of protections guaranteed by the Voting Rights Act must remain inviolate. Pryor’s expressed disdain for and extreme position concerning the Voting Rights Act cause us to conclude he is unsuited for the federal bench. If he cannot comprehend the continuing need for voting rights protections for African Americans in the Deep South, then he is unlikely to fairly evaluate and firmly enforce the provisions of the Voting Rights Act in cases that come before him.
Statement of Civil Rights Movement Veterans (May 2003) (emphasis added).
In an effort to mitigate concerns about Pryor's views on civil rights, Pryor and some of his proponents have pointed to Pryor's support several years ago for repealing the provision of Alabama's Constitution prohibiting interracial marriage. That provision, however, has been null, void, and unenforceable since 1967, when the Supreme Court declared that state bans on interracial marriage violated the U.S. Constitution. See Loving v. Virginia, 388 U.S. 1 (1967). In 2000, Alabama was the only state in the country with such a provision remaining on its books.30 Pryor’s support for removing this unenforceable, repugnant vestige of Alabama's discriminatory past, while commendable, hardly negates the serious concerns posed by such matters as his support for weakening the Voting Rights Act, one of the most important civil rights protections in our country’s history.
Pryor would deny gay men and lesbians the equal protection of the laws, including upholding the imprisonment of gay men and lesbians for expressing their human sexuality in the privacy of their own homes
Earlier this year, on behalf of Alabama, South Carolina, and Utah, Pryor filed an amicus curiae brief in the Supreme Court urging the Court to uphold the Texas “Homosexual Conduct Law,” which prohibits so-called “sodomy” between people of the same sex but not between heterosexual couples.31 The case began when sheriff’s officers in Harris County, Texas, burst into the home of John Lawrence one evening in response to what turned out to be a false report about a “weapons disturbance.”32 They found Mr. Lawrence in his own home having sex with Tyron Garner, arrested both men, and hauled them off to jail; the men were not released until the next day. The men were later convicted of violating the Texas “Homosexual Conduct Law,” and have challenged the constitutionality of that law both on the ground that it violates their liberty and privacy rights under the Due Process Clause to engage as adults in consensual sexual intimacy in the home, and on the ground that the law — which applies only to gay men and lesbians — violates their right to the equal protection of the laws.
Pre-dating the very similar and much criticized remarks of Rep. Rick Santorum, Pryor’s brief equates, for purposes of legal analysis, private consensual sex between same-sex couples — criminalized by the Texas statute — with “activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be ‘willing’).” Pryor’s Lawrence Brief, at 25 (emphasis added). This brief prompted even the Tuscaloosa News, which has “cautiously supported Pryor’s nomination,” not only to call Pryor’s opinions “incendiary” and “beyond mainstream,” but also to state: “It is a long step from sanctioning, or even tolerating, consensual private activity between two adults to permitting abusive crimes such as pedophilia. The law is perfectly capable of drawing such distinctions in theory and in practice.”33 It is most disturbing that Pryor is either unable or unwilling to recognize these distinctions.
And while Alabama is one of only 13 states with “sodomy” laws still on the books,34 it is also significant to note that Pryor’s amicus brief in the Texas case goes well beyond any legal argument pertinent to protecting whatever interest Alabama may have in maintaining that law.35 Unlike the Texas law, Alabama’s sodomy statute prohibits sodomy by heterosexual as well as same-sex couples. Because the Texas law applies only to gay men and lesbians, the Court could invalidate that statute on equal protection grounds, which would not affect the facial validity of the Alabama sodomy law. However, Pryor’s brief specifically addresses the petitioners’ equal protection argument, and urges the Court to reject it. Pryor’s Lawrence Brief, at 16-20.36
Pryor also urges the Court not to engage in any form of heightened scrutiny of the Texas law for equal protection purposes, claiming that “[t]he choice to engage in homosexual sodomy (as opposed to the inclination) is not a suspect classification under the Equal Protection Clause of the Fourteenth Amendment.” Id. at 16. According to Pryor, “Texas’s anti-sodomy statute does not classify on the basis of status or orientation but rather on the basis of behavior that is chosen.” Id. at 19 (emphasis added). Pryor’s assertion that gay men and lesbians, as a class, can be — and for purposes of legal analysis, should be — separated from their human sexuality, is appalling and not a legal rule imposed on heterosexuals in this country.37
Pryor asserts that there is value in laws such as that of Texas even if they are not enforced, because they send a message of societal condemnation of homosexuality:
Even legislation that is largely symbolic and infrequently enforced . . . has significant pedagogic value. Laws teach people what they should and should not do, based on the experiences of their elders. The States should not be required to accept, as a matter of constitutional doctrine, that homosexual activity is harmless and does not expose both the individual and the public to deleterious spiritual and physical consequences.
Pryor’s Lawrence Brief, at 27.38
As the excerpts such as those quoted above reflect, Pryor’s brief is disturbing in the harshness of its language and views about gay men and lesbians. In fact, Pryor’s brief contemptuously trivializes the very real issues at stake when the government drags two adults out of their home for having engaged in private consensual sex. For example, Pryor asserts that Messrs. Lawrence and Garner have “invite[d] this Court to exalt will above reason and political correctness above the text and history of the United States Constitution. . . This Court should not bend the text and history of the Constitution to facilitate perceived changes in social mores that may turn out to be illusory or misguided.” Pryor’s Lawrence Brief, at 2. According to Pryor, “[f]or 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.’” Id. at 25-26.39
In addition, in April 2000, while Vermont was still considering legislation that it later passed to allow same-sex couples to enter into “civil unions,” Pryor issued an Attorney General’s opinion that Alabama, its subdivisions, and businesses doing business in the state would not have to recognize civil unions entered into in Vermont. See Attorney General Opinion 2000-129 (Apr. 20, 2000). According to Pryor, despite the Full Faith and Credit Clause of the Constitution, which requires each state to give “full faith and credit” to the “public acts, records, and judicial proceedings of every other state,” Alabama could deny such recognition to these legally established relationships on the ground that they conflict with he called the state’s “legitimate public policy” expressed in its “Marriage Protection Act.” That Alabama law limits marriage to opposite-sex couples and invalidates marriages entered into between same-sex couples. According to Pryor, passage of that law as well as the so-called federal Defense of Marriage Act, “were intended to preserve the traditional moral concept of marriage” and “were not acts of bigotry or animus toward homosexuals.” Attorney General Opinion 2000-129, at 13.40
The failure by one state to give legal recognition to families legally recognized in another state would wreak havoc on those relationships. The fact that Pryor reached the conclusion that he did, as well as the fact that he considers this particular opinion to be noteworthy, further evidences his disturbing view that gay men and lesbians should not to be given equal treatment under the law.41
Pryor’s extreme anti-gay views, particularly as expressed in his brief in the Texas case, prompted the New York Times to single him out in a recent editorial criticizing the Bush administration for nominating so many individuals to the federal bench who are “hostile to equal rights for gay men and lesbians.” “Judicial Nominees and Gay Rights,” New York Times (May 19, 2003). The Times expressly noted that Pryor had no “legal duty” to file a brief in the Texas case, and that “other states with such laws did not do so.” Id. The Times concluded that “Senators of both parties should speak out against Mr. Pryor.” Id. (emphasis added).42
In United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court held, 7-1 (with Justice Thomas not participating) that the denial of admission to women by the Virginia Military Institute, a public, state-supported university, violated the Equal Protection Clause. Disparaging the constitutional rights of women at stake, Pryor criticized this decision:
the Court ruled that the people of Virginia were somehow prohibited by the fourteenth amendment from maintaining an all male military academy. Even the Chief Justice concurred. Never mind that for more than a century after the fourteenth amendment was enacted both the federal government and many state governments maintained all male military academies. Never mind that the people of the United States did not ratify the Equal Rights Amendment. We now have new rules of political correctness for decisionmaking in the equal protection area.
Alabama Attorney General Bill Pryor, “Federalism and the Court: Do Not Uncork the Champagne Yet,” Remarks Before the National Federalist Society (Oct. 16, 1997) (emphasis added). Along with Romer v. Evans, discussed above, Pryor cited the VMI case as an example of the Court’s having been “both antidemocratic and insensitive to federalism.” Id. Again, Pryor would allow rights guaranteed by the federal Constitution — particularly the fundamental right to the equal protection of the laws — to be taken away in an individual state by majority vote, an ideology completely at odds with our Constitution.