By Lisa Keen
WASHINGTON – The confirmation last Thursday of federal judge John Roberts Jr. to become the next Chief Justice of the U.S. Supreme Court said some things about the status of gay civil rights in the U.S. Senate today.
It said that party affiliation can predict where the gay community's allies and enemies lie but not whether they will consider equal protection for gays important enough to sway their votes.
It said the most reliable supporters of gays are not senators who are willing to ask questions about non-discrimination laws to protect gays but senators who come from states which actually have such laws.
And, in the end, it illustrated that the gay civil rights movement has enough clout to have its questions entertained but not enough to tip the balance of any senator's vote.
The Senate voted 78 to 22 in favor of Roberts' confirmation. He took the bench Monday as the U.S. Supreme Court opened its 2005-06 session. His commitment to equal right for gays is essentially unknown.
The fact that Lambda Legal Defense and Education Fund and several other national gay organizations opposed Roberts' nomination had little effect. With 55 votes, Republicans in the Senate rule and they were sticking together to support Republican President Bush's first Supreme Court nominee who happened to be a long-time Republican administration operative.
During floor debate of the nomination on Sept. 26, Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, said he was pleased with Roberts' responses on the right to privacy.
"He said there was a right to privacy," said Specter.
But despite repeated efforts by Democratic senators to pin Roberts down on how he might have voted in Lawrence v. Texas, the 2003 decision that struck down laws prohibiting consensual sex between consenting same-sex adults, they could not. He simply reiterated what other justices had said about the decision.
In assessing the fallout over Roberts' confirmation, Lambda Legal Defense and Education Fund sent out an email within minutes of the vote Thursday, saying that, while it opposed Roberts, "the civil rights of LGBT people were an important focus of a Supreme Court confirmation hearing for the first time ever."
That was true in part because Lambda submitted a long list of questions it wanted the nominee to answer concerning equal rights for gays and some of those questions were answered. But it was also true in part because right-wing conservatives were eager to reassure their constituents that Roberts would not be a vote in favor of same-sex marriage.
Lambda credited five Democratic senators with having asked some of its questions including Joseph Biden (Delaware), Richard Durbin (Illinois), Diane Feinstein (Calif.), Edward M. Kennedy (Mass.), and Charles E. Schumer (New York). But while these same five senators were among the 22 who opposed Roberts' nomination, the strength of their concern around gay civil rights seemed muted at best.
Before the Judiciary Committee took its vote, Feinstein said she was disappointed Roberts had not fully answered critical questions and did not distance himself from memos he wrote while serving in the administration of Presidents Reagan and George H.W. Bush.
"I asked for some ability to find a commitment to broad legal principles that form the basis of our fundamental rights," said Feinstein. Those, she said, included equal protection under the law and the ability to remedy discrimination and a basic right to privacy that extends from the beginning of life to the end of life.
Instead, she said, Roberts provided equivocations.
Biden said his focus with all nominees has been on their "commitment to defending fundamental rights," including "the right to marry whomever you wish, even if they're of a different color…."
The strongest gesture of support came from Schumer who expressed particular concern about Roberts' responses concerning the right to privacy. Although Roberts said there is a right to privacy, said Schumer, his statement was almost identical to that of Justice Clarence Thomas during his confirmation hearing.
"We all know that, as a Supreme Court justice, however, Justice Thomas has repeatedly urged the most narrow interpretation of privacy interests possible, in Casey and Lawrence and every other opportunity."
Lambda did not issue a note of thanks to Committee member Sen. Russell Feingold (D-Wisc.) even though he asked Roberts several questions of interest to gays. He asked why Roberts advised President Reagan to delete a sentence in an HIV-related speech that would have reassured the public that the virus is not casually spread. He asked whether Roberts believes Congress has the power under the constitution to prohibit discrimination against gays and lesbians in employment.
Roberts acknowledged that he never consulted medical experts before advising Reagan what to say about HIV infection. As to non-discrimination laws, he said he would have to "maintain silence on" the issue because it might come before the Supreme Court. He then added, without prompting, that he "personally" believes that "everybody should be treated with dignity in this area, and respect." But the gist of his response seemed to signal that Roberts sees legitimate "legal question of Congress' authority to address" sexual orientation discrimination.
And while Feingold asked those probing questions, in the end, he voted for Roberts.
Only 22 Democrats voted against Roberts during the full Senate vote on Thursday, September 29: Joseph Biden (Delaware), Daniel Akaka and Daniel Inouye (Hawaii), Evan Bayh (Indiana, Roberts' home state), Dianne Feinstein and Barbara Boxer (Calif.), Maria Cantwell (Washington), Hillary Rodham Clinton and Charles Schumer (New York), Frank Lautenberg and Jon Corzine (New Jersey), Mark Dayton (Minnesota), Tom Harkin (Iowa), Edward Kennedy and John Kerry (Mass.), Barbara Mikulski and Paul Sarbanes (Maryland), Barack Obama and Richard Durbin (Illinois), Jack Reed (Rhode Island), Harry Reid (Nevada) and Debbie Stabenow (Michigan).
Michigan's other Senator, Carl Levin, voted in favor of Roberts.
Of the 15 states from which at least one senator voted against Roberts, 14 have some form of statewide prohibition on discrimination against gays. Only Iowa does not.
Senators from five other states which have enacted such legislation supported Roberts. That included Connecticut and Wisconsin (with two Democratic senators each), New Hampshire (with two Republican senators), New Mexico (with one Democrat and one Republican), and Vermont (with on Democrat and one Independent). And many of those senators – Feingold, James Jeffords of Vermont, Joe Lieberman of Connecticut, to name a few – are considered strong supporters of gay civil rights.
Meanwhile, conservatives in the Senate had no qualms about expressing their opposition to equal rights for gays and apparently felt comfortable that Roberts would protect their positions.
Sen. Jon Kyl (R-Ariz.) said he would like Roberts to "resist the siren songs of those judges who would craft a constitutional right to same-sex marriage."
Sen. Wayne Allard (R-Colo.) promised that Roberts would not be an "activist judge." Such judges, he said, "proclaim the Pledge of Allegiance unconstitutional and attempt to redefine the institution of marriage."
Sen. Jim Bunning (R-Ky.) also promised Roberts would not carry out the left's agenda.
"What is that agenda?" asked Bunning. "Unlimited abortion on-demand; banning schoolchildren from saying the Pledge of Allegiance; banishing the Ten Commandments from public places; rewriting the definition of marriage; and banning arms for self-defense."
"Rewriting the definition of marriage" is, of course, not the issue for the gay civil rights movement. The issue, said Lambda Executive Director Kevin Cathcart, is "a commitment to our Constitution's core values of equality and fairness for all." And, he added, "It is every nominee's responsibility to demonstrate that he or she possesses that commitment." Roberts made no such commitment and the gay movement's power to exact such a commitment in the current Senate is clearly weak.
