By Paul Varnell
There is every reason to think that the nomination of Appeals Court judge John G. Roberts, Jr., to the Supreme Court will be confirmed by the Senate.
Roberts is universally acknowledged to be extremely bright, to have a fine legal mind, to have what is referred to as “a judicial temperament.” In other words, he is a lawyer’s lawyer. He comes across as conservative but not fanatical. Nor is he likely to say anything revealing at his Senate confirmation hearings, depriving liberal groups of an easy rationale for opposition.
Nevertheless four gay advocacy groups – the Human Rights Campaign, National Gay and Lesbian Task Force, National Center for Lesbian Rights and PFLAG, but not Lambda Legal Defense and Education Fund – issued a verbose seventeen-paragraph joint statement opposing Roberts’ nomination.
Broadly, they argue that Roberts might not vote to protect gay civil rights from “the tyranny of sometimes misguided majorities” – i.e., congressional and state legislation.
Specifically, the gay groups have five arguments. First, they argue that Roberts might not respect the privacy (better: personal autonomy) precedents established by Lawrence and instead adopt a posture of “judicial restraint,” deferring to state legislative and Congressional enactments.
Second, they argue that Roberts might not respect the broad interpretation of the equal protection provision of the 14th Amendment to include gays which was the basis of the Supreme Court’s Romer v. Evans decision and might limit equal protection to its original focus on race.
Third, they argue that Roberts might uphold Congressional efforts to remove certain policy areas (e.g., marriage) from Court jurisdiction, thus blocking gay groups ability to appeal to courts for constitutional protections.
And fourth, they argue that Roberts might not respect the “clear consensus among social science, psychiatric, psychological, and medical associations in favor of GLBT equality.”
It is hard to know how seriously to take these objections. For instance, a fifth argument the gay groups raise is that “Roberts’s record shows that he holds a very limited view of Congress’s authority” and so might strike down as unconstitutional various “civil rights statutes, workplace protections, and hate crimes legislation.”
But here the gay groups completely reverse their earlier concern that Roberts has “criticized the Court for what he claims is an intrusion into areas belonging to legislatures” and now express concern that he might be all too willing to strike down legislation passed by Congress or the states. Which is it?
And don’t gay groups hope the Court will eventually strike down the “Don’t Ask, Don’t Tell” ban on gays and lesbians in the military and the “Defense of Marriage Act” denying federal benefits to same-sex partners?
In addition, although the gay groups here oppose deferral to the legislative branch, including state legislatures, if the court had been more willing to defer to state law, the medical marijuana case of Raich v. Ashcroft would have been decided differently and thousands of gay PWAs in California and several other states might have legal access to marijuana.
Next, although the gay groups insist that Roberts should follow the precedents, citing particularly the precedents of both Romer and Lawrence, they seem to ignore that if the Court had followed the precedent established by Bowers v Hardwick, that decision would never have been reversed by Lawrence v. Texas. So precedent is not a uniformly defensible principle.
Regarding Romer specifically, the gay groups pause to acknowledge that “Roberts provided a few hours of pro bono help to the attorneys in Romer v. Evans” but dismiss the notion that it constitutes “evidence that Roberts is not anti-gay.” That could be true, but to dismiss as “a few hours of pro bono work” seems to trivialize what the lead attorney for the pro-gay side called his “extremely valuable advice.”
But this suggests a pattern. The gay groups make broad claims like “Roberts has repeatedly written that the Court should not stand up for civil rights,” but fail to provide any quotations to that effect from Roberts. Roberts may well have written something like that, but the lack of specifics can leave people wondering if the characterization is accurate or a distortion.
The point is not that gay groups should not be wary of Roberts, but that by striving to couch their concerns in the language of principles of Constitutional interpretation – precedent, federalism, judicial deference vs. supremacy, etc. – they end up having to switch their principles depending on the particular issue, entangling themselves in contradictions and ending up looking foolish.
There is nothing wrong with gay group saying, in effect, “We want what we want and we oppose anything that stands in our way.” That’s what it means to be an advocacy group. At least then they could offer one or two good arguments for gay equality at a moment when they might garner some attention. But the opportunity was fumbled.