Court Nominee Advised Group on Gay Rights - New York Times

Court Nominee Advised Group on Gay Rights - New York TimesAugust 5, 2005
Court Nominee Advised Group on Gay Rights
By SHERYL GAY STOLBERG
and DAVID D. KIRKPATRICK

WASHINGTON, Aug. 4 - Judge John G. Roberts Jr., the Supreme Court nominee, gave advice to advocates for gay rights a decade ago, helping them win a landmark 1996 ruling protecting gay men and lesbians from state-sanctioned discrimination.

Judge Roberts, at the time an appellate lawyer for the Washington firm of Hogan & Hartson, did not write legal briefs or argue the case, lawyers involved said. But they said he did provide invaluable strategic guidance working pro bono to formulate legal theories and coach them in moot court sessions.

Judge Roberts did not disclose his role in the case to the Senate Judiciary Committee, which asked about pro bono work in a questionnaire. News of his participation was first reported Thursday in The Los Angeles Times, and it set off an immediate scramble on both the left and the right, upending perceptions of the nominee in both camps.

The White House immediately sought to reassure Judge Roberts's conservative backers, telephoning prominent leaders, including Richard Land of the Southern Baptist Convention, but it appeared that not all of them had been convinced.

The 1996 case, Romer v. Evans, is considered a touchstone in the culture wars, and it produced what the gay rights movement considers its most significant legal victory. By a 6-to-3 vote, the Supreme Court struck down a provision of the Colorado Constitution that nullified existing civil rights protections for gay men and lesbians and also barred the passage of new antidiscrimination laws.

"It's one more piece of the puzzle as we keep trying to find out who John Roberts is," said Kevin Cathcart, executive director of Lambda Legal, the advocacy group that helped bring the Romer case. "Where does this fit in on his judicial philosophy and his view of the Constitution?"

Indeed, Judge Roberts's participation seems to stand in contrast to the picture that has emerged from his days as a young lawyer with the Reagan administration, when he advocated a more conservative approach to civil rights and voting rights. Lawyers in the Romer case said Thursday that Judge Roberts had not discussed its substance with them, but seemed to approach it more as an intellectual challenge.

Even so, reports of his involvement echoed on conservative talk shows Thursday, generating outrage and disbelief. "There's no question this is going to upset people on the right," Rush Limbaugh told his radio listeners. "There's no question the people on the right are going to say: 'Wait a minute. Wait a minute! The guy is doing pro bono work and helping gay activists?' "

A White House spokeswoman, Erin Healy, said Judge Roberts's involvement was minimal. "As in any other case," Ms. Healy said, "it is wrong to equate legal work product with personal opinions."

The lead plaintiffs' lawyer in the Romer case, Jean Dubofsky, said Thursday that she sought out Judge Roberts at the recommendation of Walter Dellinger, then a senior official in the Justice Department under President Bill Clinton. Ms. Dubofsky, a former justice of the Colorado Supreme Court, said she was specifically seeking a conservative who could provide her an insider's road map, of sorts, helping her to anticipate objections from some of the court's more conservative members, like Justice Antonin Scalia and Chief Justice William H. Rehnquist.

Judge Roberts, who once clerked for Justice Rehnquist and now serves on the United States Court of Appeals for the District of Columbia Circuit, spent about six hours on the case, Ms. Dubofsky said. "He told me, 'You have to know how to count and to get five votes, you're going to have to pick up the middle.' "

And then, she said, Judge Roberts provided explicit instructions on how to do just that, telling her that she would have to prove to the court it did not have to overturn a previous case, Bowers v. Hardwick, which upheld a ban on homosexual sodomy. He peppered her with questions in a moot court session.

"So when I was asked by Justice Scalia if they would have to overturn Bowers v. Hardwick to rule my way, I said no," Ms. Dubofsky said, adding, "In this particular case if you wanted to get the U.S. Supreme Court turned around on gay rights issues, you didn't have to win every gay rights case floating around out there."

Ultimately, in a forceful opinion by Justice Anthony M. Kennedy, the court said the Colorado provision had put the state's gay men and lesbians in a "solitary class," singling them out in violation of the Constitution's equal protection guarantee in a manner that was so sweeping as to be inexplicable on any basis other than animus. Chief Justice Rehnquist and Justices Scalia and Clarence Thomas, the justices to whom Judge Roberts is most often compared, issued a blistering dissent.

The Romer case proved to be the first step in the Supreme Court's ultimate disavowal of the Bowers decision in its 2003 ruling in the case of Lawrence v. Texas. That ruling, which overturned a Texas sodomy law, has drawn the ire of conservatives at a time when the Supreme Court is expecting still more cases involving gay rights. In November, the court is scheduled to hear a case that grows out of the military's "don't ask, don't tell" policy toward gay service members. The question is whether Congress can withhold federal money from universities that restrict military recruiters' access to their students, in an effort to support gay rights. Judge Roberts would join in hearing that case, should he be confirmed by the first Monday in October, as Republicans hope.

Judge Roberts did not mention the Romer case in the response he filed to a questionnaire from the Senate Judiciary Committee, which asked about pro bono work. Committee Democrats said they were not troubled by the omission, because it did not appear that Judge Roberts had spent a significant amount of time on the case. He did list two other cases, including one in which he represented welfare recipients in the District of Columbia who were challenging cuts in their benefits.

Walter A. Smith, who was in charge of pro bono work at Hogan & Hartson from 1993 to 1997, and who worked extensively on the Romer case, said about a dozen lawyers at the firm assisted. He said he had little trouble recruiting Judge Roberts.

"It looked like a challenging, interesting, provocative, important case," said Mr. Smith, who is now the executive director of the D. C. Appleseed Center, a nonpartisan public interest legal group. "Everybody knew that, and I think he believed it was worth his time."

Mr. Smith said part of his job was to match lawyers with cases that would intrigue them, and that his initial instinct was that Judge Roberts would be willing, despite his conservative bent. In the past, Judge Roberts has made it a point to note that lawyers do not always agree with their clients.

"Every good lawyer knows that if there is something in his client's cause that so personally offends you, morally, religiously, if it so offends you that you think it would undermine your ability to do your duty as a lawyer, then you shouldn't take it on, and John wouldn't have," he said. "So at a minimum he had no concerns that would rise to that level."

Liberal critics of Judge Roberts, however, continued to assail him on Thursday as a foe of civil rights. "John Roberts was a key member of a right-wing policy team that waged a comprehensive assault on fundamental constitutional rights," said Ralph Neas, president of People for the American Way, a liberal advocacy group, "and that is most relevant to his qualification to be on the Supreme Court."

While some conservatives, including Dr. Land of the Southern Baptist Convention, said they were unconcerned about Judge Roberts's involvement in the Romer case, others signaled that the report had at least raised questions in their eyes.

James C. Dobson, chairman of the evangelical group Focus on the Family, said Judge Roberts's work in the case was "not welcome news to those of us who advocate for traditional values," though he said it did not necessarily mean that Judge Roberts shared the plaintiffs' views.

Colleen Parro, executive director of the Republican National Coalition for Life and one of the few conservatives to raise questions about Judge Roberts, said his work on the case was "cause for more caution and less optimism" about his nomination.

Linda Greenhouse contributed reporting from Washington for this article.