By Lisa Keen
WASHINGTON – The record of U.S. Supreme Court nominee John G. Roberts Jr. as a federal appeals court judge is short, but his association with conservatives who have opposed equal rights for gays is long enough and deep enough to worry gay civil rights activists.
For the several weeks leading up to the nomination announcement July 19, conservatives prodded the Bush administration to nominate someone who would oppose equal marriage rights for gays and overturn Roe v. Wade. Roe, since 1973, has established that the constitution protects the right of a woman to have an abortion. Roberts' nomination clearly fulfills the latter request.
But there is no indication – yet — as to how Roberts believes various provisions of the Constitution should be applied to such matters as equal rights to marriage for same-sex couples, gays in the military, respect for state laws which prohibit discrimination based on sexual orientation, and the degree to which religious views can be used to justify discrimination based on sexual orientation.
"Some have suggested that Judge Roberts is well-liked," said Kevin Cathcart, executive director of Lambda Legal Defense and Education Fund, "but with all due respect, we need to know if he will stand up for the rights of all Americans, not whether some people think he's a nice guy."
Because Roberts has been a federal judge for only three years, there was only a short record of court opinions on which to discern his approach to key issues. But President Bush said he would "strictly apply the Constitution and laws, not legislate from the bench," which suggests Roberts would not find protections for gays in the Constitution.
Lambda, the Human Rights Campaign, and others are now digging more deeply into Roberts' positions in legal briefs written for the administrations of presidents Reagan and George H.W. Bush to see whether any gay specific positions can be found.
But in the meantime, his briefs in cases implicating Roe v. Wade are worrisome. In a 1990 brief to the Supreme Court on behalf of the George H.W. Bush administration, Roberts argued that "[w]e continue to believe that Roe was wrongly decided and should be overruled" and that there was "no support in the text, structure, or history of the Constitution" for the court to consider a woman's right to seek an abortion to be a "fundamental right."
"Reversing Roe could undermine fundamental rights to privacy and liberty that are the legal underpinning for the freedom of gay, lesbian, bisexual and transgender Americans," said Human Rights Campaign President Joe Solmonese.
Some legal commentators say Roberts' argument in that brief – submitted in Rust v. Sullivan — cannot necessarily be read as his own, since he was just doing his job as deputy solicitor general. And, when asked about his views on Roe, during his 2003 confirmation hearing for a seat on the U.S. Court of Appeals for the District of Columbia, Roberts said the decision is the "settled law of the land" and that there was "nothing in [his] personal views that would prevent [him] from fully and faithfully applying that precedent."
But others note that Roberts is a devout Catholic who has worked for both the Reagan and George H.W. Bush administrations. Roberts also clerked for Supreme Court Chief Justice William Rehnquist who has almost always voted against equal rights for gays.
"Judge Roberts has advocated for prayer in public schools and for weakening the wall between church and state," said Solmonese. "He should make clear whether or not he would distort religion for misuse as a proxy for discrimination. Americans deserve a justice who will uphold the separation of church and state."
Georgetown University law professor Chai Feldblum said it is possible for someone to disagree with the holding in Roe v. Wade "and still believe consensual sex in private" is constitutionally protected.
"But," said Feldblum, "if he doesn't believe in any rights of privacy other than those with a long history of acceptance, [he] would not be someone who would have joined the majority in Lawrence." In Lawrence v. Texas, the U.S. Supreme Court ruled in 2003 that the Constitution's guarantee of privacy protects the rights of a person who has consensual sex with a person of the same gender. The vote was 6 to 3, with Rehnquist and Justices Antonin Scalia and Clarence Thomas voting in dissent.
In addition to what Roberts' inclinations might be as a justice towards privacy, liberty, and religious interests, gay leaders are also concerned about how his presence would tip the balance of a court toward the Rehnquist-Scalia-Thomas triad.
As a conservative, he would seemingly provide a critical fourth vote, and it takes the agreement of four justices to hear an appeal, that would give the conservative wing a greater ability to hear appeals seeking to overturn pro-gay rulings in the lower courts.
Matt Foreman, executive director of the National Gay and Lesbian Task Force, said the Senate should ask Roberts' opinion about two key gay-related rulings in the Supreme Court: Lawrence v. Texas and Romer v. Evans, which, in 1996, said that animus for certain groups of people, such as gays, cannot be used to justify laws which deny gays equal protection of the law. But both rulings could be revisited in cases working their way up the judiciary. For instance, a federal judge in Boston, hearing the challenge of the military's "don't ask/don't tell" policy earlier this month, asked attorneys whether Romer gave courts the right to question whether Congress was motivated by animus in creating the policy.
While some gay leaders conceded that Roberts, on the surface, does not look to be as harshly conservative as some of the potential nominees Bush was said to be considering, most, including the Log Cabin Republicans, are watching carefully before deciding whether to urge support or opposition to his nomination.
"I do not have much hope that any Bush nominee will be good for gays," said Lorri L. Jean, executive director of the Los Angeles Gay & Lesbian Center. "In this administration, a nominee who isn't horrible for us would be a relief. First, we'll want to look at Roberts' record to see if he has taken any positions with regard to the rights of GLBT people. If not, key areas to examine will be his views on equal protection and the right to privacy. I'll also be interested in whether he has a clear political agenda that is reflected in his opinions regardless of the law, as does Scalia, or whether he approaches his cases with intellectual honesty, as has often been the case with O'Connor."
Justice Sandra Day O'Connor, who announced last month that she was resigning, was appointed by President Reagan and voted conservatively on gay-related issues for many years. But in her last ten years, O'Connor voted for equal rights for gays in three out of five cases, including Lawrence and Romer.
While gays can always hope that a Justice Roberts would also "grow left," as one political commentator put it, others suggest that his long and close ties with the Republican political establishment foretell a more staunchly conservative jurist, such as Scalia.
Officials of HRC said in a July 20 conference that they will be working closely with Democrats on the Senate Judiciary Committee – in particular, Sen. Edward Kennedy (D-Mass.) — to ensure that Roberts is sufficiently vetted concerning legal issues important to gays. And, they acknowledge, conservative activists are certain to be prodding Republican Senators to do the same.
"If you look at their reactions to the nominee," said HRC Legislative Director Christopher Labonte, "they're gleeful, and given the blank slate in not knowing where he stands on GLBT issues, that gives us enormous pause."
