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OpEd: Judge Roberts: A justice who would stand aside

by Joe Solmonese
HRC President

Recently, America learned that Supreme Court nominee John Roberts assisted lawyers in the LGBT 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 George W. Bush promised to appoint — another Anthony Scalia or Clarence 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 rightwing 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 D.C. 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 D.C. 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 D.C.’s treatment of her was unfortunate, the court would not second-guess it. He also noted approvingly that in response to public outcry, D.C. 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 Thomas.

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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