By Joe Solmonese, HRC President
Recently America learned that Supreme Court nominee John Roberts
assisted lawyers in the GLBT rights case Romer v. Evans. Anti-gay
groups were quick to dismiss this work as nothing more than courtesy to
his law firm (makes you wonder what they know, doesn't it?). The
Washington Post's Richard Cohen, on the other hand, said it proves that
Roberts is not a bigot. The question of whether Roberts is personally
anti-gay is not only hard to answer, it is the wrong question to ask.
The right question is whether he will be the kind of justice that
President Bush promised to appoint-another Scalia or Thomas. Our
community should demand that our senators find out.
As we review documents from throughout Roberts's career, we are finding
strong evidence that Roberts would vote with the far right wing of the
Court, and against protections for our community. It's not evidence
that he's a bigot-just clear, convincing evidence that for decades,
Roberts has embraced a view that the Court has no business protecting
basic civil rights.
In 1981, Roberts drafted an article urging what he calls "judicial
restraint." In it, Roberts criticized the Court for what he called
intrusions into social issues best left to the legislatures. The
article does not name these issues, and the Senate should ask him which
ones he meant. Was Brown v. Board an unwarranted intrusion? Was Roe v.
Wade? Was Lawrence v. Texas?
Roberts also accused the Court of identifying too many "fundamental
rights" and over-using equal protection for groups other than race. In
layperson's terms, that means no privacy. No (or limited)
constitutional protections for women. No Roe. No Romer. No Lawrence.
This "leave it to the legislature" philosophy is what guides Justice
Thomas. Dissenting in the landmark Lawrence case that overturned sodomy
laws, Thomas called the Texas law "uncommonly silly" and declared that
as a legislator, he would not have voted for it because it "does not
appear to be a worthy way to expend valuable law enforcement resources."
But he voted to uphold the law because in his view, it was not a judge's
job to interfere.
As a DC Circuit judge, Roberts wrote an opinion that shows he was
thinking along the same lines as Justice Thomas. In the now infamous
"French fry" case, a 12-year-old girl was caught eating one French fry
in the Metro system. She was arrested and detained for three
hours-terrified and in tears.
Under DC law, an adult would only have been given a citation. The girl
filed a lawsuit claiming that she had been treated unfairly because of
her age and that her rights had been violated. Roberts ruled against
the girl, noting that while DC's treatment of her was unfortunate, the
court would not second-guess it. He also noted approvingly that in
response to public outcry, DC had changed its policies.
It is fortunate that future juvenile French fry offenders will be safe
from unwarranted arrest, but Judge Roberts had nothing to do with it.
And he believes that the Court cannot, and should not, flex its muscles
to protect rights and insure equality. He sounds just like Justice
If you've read the paper lately, you know that when legislatures punish
and discriminate against gay people, we are unlikely to see the kind of
public outcry that the French fry case inspired. Anti-gay forces are
using intolerance for political gain-and only the courts stand between
us and second-class citizenship.
That's why anti-gay forces supported the "Marriage Protection Act,"
which would have insured that constitutional challenges to DOMA never
made it to federal court at all. Sound crazy? Not to Judge Roberts. In
the 1980s, Roberts wrote that such laws-at the time targeted toward
abortion and school prayer-were perfectly constitutional.
With bills like the so-called "Marriage Protection Act" threatening our
community, it's scary to contemplate a justice who would be inclined to
uphold them. And if he seriously believes that civil rights cases can
be kept out of court altogether, how sympathetic could he possibly be
when a case does come before him?
If any overarching philosophy can be discerned from Judge Roberts's
career, it's the one that Justice Thomas glibly stated in his Lawrence
dissent: the Supreme Court is a mere bystander in the struggle between
individual rights and the tyranny of a sometimes misguided majority.
The fact that Roberts has not been explicitly anti-GLBT is no more
comforting, nor relevant, than Justice Thomas's opinion that sodomy laws
are "silly." What matters is whether, as a justice, Roberts would
interpret the Constitution to protect us from such laws.
From what I've seen of his record, both as a government lawyer and as a
judge, Judge Roberts would allow discriminatory laws to stand, and fail
to recognize our fundamental rights. A fair-minded justice stands up
for rights-he does not stand aside.
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