Guess who helped gay rights activists at the Supreme Court?

August 4, 2005

In 1992, Colorado voters narrowly approved a truly outrageous, anti-gay ballot measure called “Amendment 2.” The initiative was written to prevent any municipality in the state from providing discrimination protections for gays, and nullified laws that had already been adopted in Aspen, Boulder, and Denver. It was obvious bigotry, plain and simple.

Amendment 2 sparked a massive legal fight that ultimately led to a Supreme Court case, Romer v. Evans. The justices, in 6-3 ruling, rejected the measure, saying that instead of giving gays “special rights,” Amendment 2 “imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”

Care to guess who helped make the case to the Supreme Court on behalf of the gay rights activists? You might be surprised.

Supreme Court nominee John G. Roberts Jr. worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation.

Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm’s pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case. […]

The lawyer who asked for Roberts’ help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn’t hesitate. “He said, ‘Let’s do it.’ And it’s illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job.”

When conservatives have been asked to explain Roberts writings relating to overturning Roe v. Wade, the line has been that Roberts was simply “defending a client.” Will they say the same thing here?

I really can’t wait to hear the reaction to this from James Dobson, Rick “Man on Dog” Santorum, and the rest of the Republican fringe. It should be quite a struggle — defend the White House’s conservative Supreme Court nominee at all costs, or blast a corporate lawyer who was on the “wrong” side of the biggest gay-rights case of the ’90s. What to do, what to do.

They’ll use the same rationalization Roberts’ party had been using to whitewash less attractive aspects of his record (i.e., What do you expect? Lawyers are kept women; if their client asks them to go down on them, they go down).

Privately, they’ll probably be wondering if Bush just suckered them again. Maybe they’ll finally realize that any person Bush appoints is–first and foremost–appointed to look after the interests of Bush and friends. God can go eat cake.

  • It might be worth adding (from the LA Times story) that

    Roberts did not mention his work on the case in his 67-page response to a Senate Judiciary Committee questionnaire, released Tuesday. The committee asked for “specific instances” in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them.

    Smith said the omission was probably just an oversight because Roberts was not the chief litigator in Romer vs. Evans

    There was also this gem:

    In the blistering dissent, Scalia, joined by Rehnquist and Thomas, said “Coloradans are entitled to be hostile toward homosexual conduct.” Scalia added that the majority opinion had “no foundation in American constitutional law, and barely pretends to.”

    As to which side Roberts is on, I don’t know. The article concludes:

    The case was one of several Roberts worked on pro bono at Hogan & Hartson, a prominent Washington law firm that expects partners to volunteer time in community service.

    So, did his contribution flow from a committment to eliminating anti-gay discrimination (offending Dobson et al) or was it just business-as-usual for an obviously skilled attorney?

  • So, did his contribution flow from a committment to eliminating anti-gay discrimination (offending Dobson et al) or was it just business-as-usual for an obviously skilled attorney?

    Given Roberts’ conservative ideology, it’s impossible to believe he was anxious to take on discrimination against gays. In this sense, it was probably the latter.

    However, the quote from the firm’s pro bono chief stands out: he said Roberts didn’t hesitate and told him “Let’s do it.” One wonders, would Scalia or Thomas say the same thing in similar circumstances?

    This is what’s going to drive the GOP base batty.

  • Going to reference this astonishing cnn.com piece again, which is titled “Roberts documents reveal a conservative.â€? Does that strike anyone else as the stupidest “point-out-the-obvious, let’s-try-and-be-incendiary” title ever? And they came up with nothing except. . . he’s a conservative.

    Nothing I have seen makes a case to worry about him. If you got the smoking gun, give me a link, but the best this article comes up with out of 15,000 documents is that Roberts thinks bussing kids to create segregation isn’t good (gasp!).

    As the first seemingly decent move BushCo has made, I smell a trap. I think the trap is to get Dems out against a pretty decent (if conservative–he’s supposed to be!) guy, and then use that to show how obstructionist and anti-conservative-people Dems are. Maybe followed by a Scalito or other crazy wingnut? So I say do the unexp[ected and vote for the guy.

  • Pro-bono = free, volunteer work. He didn’t have to do this particular project it if he didn’t want to. So the whole “just arguing for his client” bit doesn’t work. Haha.

  • Eadie,

    If I understand this correctly, the Dems are claiming that there are more documents which the White House is withholding. There’s bound to be a lot of inoffensive stuff they can make public, but it’s that missing stuff….

  • Okay, Eadie, try these:

    The first is the Supreme Court Watch website set up by the Alliance for Justice:
    http://www.supremecourtwatch.org/

    Or you can go straight to the AFJ Report on John Roberts, that goes into a detailed analysis of his background, his legal work as an attorney, and his short time on the D.C. Circuit (see Part II):
    http://www.independentjudiciary.com/resources/docs/John_Roberts_Report.pdf

    And an article from the Legal Times, concerning Robert’s 1993 Duke Law Journal article:
    http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1122627918776&hub=TopStories

    And here is the Duke Law Journal article itself is not available online without a subscription, but here is a detailed analysis made by ___ during Roberts’2003 confirmation process:
    http://raenergy.igc.org/Roberts.html

    Just for good measure, a few more random things:
    http://www.boston.com/news/nation/washington/articles/2005/08/04/roberts_failed_to_disclose_lobbyist_work/?rss_id=Boston.com+%2F+News (failed to disclose to Senate his lobbying activities)

    http://atheism.about.com/b/a/190833.htm (religion does matters)

    http://www.harktheherald.com/modules.php?op=modload&name=News&file=article&sid=61199 (one side of the debate –“no� he should not be confirmed)

    http://www.harktheherald.com/modules.php?op=modload&name=News&file=article&sid=61198 (the other side of the debate –“yes� he should not be confirmed)

    http://web.mel.org/melfiles/roberts_final.pdf (Roberts’ 83 page response to Senate Judiciary Committee Questionnaire)

    http://www.zmag.org/content/showarticle.cfm?SectionID=104&ItemID=8425 (while this is a blog, it discusses at length and with some persuasion, about the Guantánamo captives and whether Geneva Conventions protections apply)

    Also, just Google “John G. Roberts, Jr.” + “law journal” for lots more…

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