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By: EARTHA JANE MELZER
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Groups across the political spectrum scrambled last week to make sense of reports that Supreme Court Justice nominee John G. Roberts Jr. had assisted gay rights lawyers on Romer vs. Evans, a landmark case in which the Supreme Court overturned an anti-gay Colorado amendment.
While in private practice at the Washington, D.C., firm of Hogan & Hartson, Roberts advised gay rights lawyers on oral argument strategy for the Romer case and played the role of a conservative, Scalia-like justice during a practice session with the lawyers.
In a Los Angeles Times report, lawyer Jean Dubofsky credited Roberts with significantly helping her preparation to argue the Supreme Court should overturn the Colorado amendment, which banned state and local civil rights protections for gays. The court ultimately accepted her position, ruling 6-3 that the amendment violated the Constitution’s “equal protection clause.”
Roberts did not mention his work on the Romer case in his 67-page response to the Senate Judiciary Committee questionnaire, even in response to questions asking for examples of his “pro bono,” or free legal work.
Suzanne Goldberg, who worked on the Romer case for Lambda Legal, resisted reading too much into Roberts’ assistance.
“I do not think that Judge Roberts’ help has great significance as an indicator on his views on gay rights or civil rights more generally,” Goldberg said. “I think that at large firms, it is fairly typical that lawyers will assist their colleagues on a variety of cases and that assistance does not necessarily convey support for the positions taken in the case.”
Goldberg did allow that if Roberts was vehemently opposed to the equality position in the Romer case, he might not have assisted in the case.
“I think that the holding in Romer applied a very basic longstanding principle of constitutional law to gay people: The government can’t make law based on hostility against a group of people. That was hardly a radical proposition.”
Arthur Leonard, New York University law professor and editor of Lesbian/Gay Law Notes, said that news of Roberts’ participation in the Romer case reinforces the view that although his politics are conservative on hotly-contested political issues, he is, after all, a member of a generation that came of age when gay liberation was starting to sweep even elite law school campuses.
Roberts is part of a culture that is reasonably comfortable with gay people and leans toward a libertarian view of gay issues, Leonard said, though it’s not clear whether this perspective would cause Roberts to strike down the military’s “Don’t Ask, Don’t Tell” policy, rule the Defense of Marriage Act unconstitutional or find constitutional flaws in state laws that stigmatize gay people.
“I think it is possible that a political conservative such as Roberts [could] have deemed it worth his time to help prepare the argument in Romer because the concept of [ Colorado’s] Amendment 2 was offensive to him on general grounds,” Leonard said.
“There is certainly a difference between striking down laws that impose second-class citizenship on a class of people and supporting more affirmative rights for such people, and I don’t necessarily think a judge’s position on one necessarily predicts his position on the other,” he said.
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| Both liberal and conservative groups were unsure what to make of news that Judge John Roberts (left) worked pro bono on behalf of gay people on a key gay rights case. (Photo by AP) |
Leonard said that Roberts’ work on Romer is comforting because it indicates that the nominee is not reflexively anti-gay and probably holds views on gay issues somewhere in between Justice Anthony Kennedy, who authored the majority opinions in Romer and Lawrence vs. Evans, the court’s other landmark gay rights case, and Chief Justice William Rehnquist, who dissented in both cases.
Tony Perkins, president of the Family Research Council, a social conservative group, said via e-mail that his first response to news of Roberts involvement in the Romer case was that Roberts had been “aiding and abetting” gay activists.
Perkins said he later decided that helping argue cases is a typical part of serving in a large private practice law firm, and he cautioned FRC members not to jump to conclusions about Roberts’ positions on gay issues.
Perkins said that the FRC approach will be to trust that Bush has made an appropriate nomination but verify Roberts’ views through involvement in the confirmation process.
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