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
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.