Updated Aug. 5, 2005
NASHVILLE, Tenn. (BP)–In a revelation that has some conservatives puzzled, the Los Angeles Times reported Aug. 4 that Supreme Court nominee John Roberts assisted homosexual activists in the mid-1990s in their preparation for one of the most important cases in the history of the “gay rights” movement.
Roberts did not write any legal briefs or conduct oral arguments in the case, Romer v. Evans, but he did donate his legal expertise to homosexual activists as part of his Hogan & Hartson law firm’s pro bono work, the Times said. “Pro bono” is a term that refers to legal work that is donated for free, generally for the public good.
Roberts’ assistance in “reviewing filings” and helping prepare oral arguments was “instrumental,” attorneys involved in the Romer case told the Times. Roberts also took part in a mock court panel in helping the lead attorney prepare for oral arguments, the Times reported. Roberts reportedly played the role of a “Scalia-like” justice.
The 1996 Romer case involved a voter-approved constitutional amendment in Colorado that prevented the state from giving civil rights status to homosexuality. In a 6-3 decision, the Supreme Court struck down the amendment, saying it violated the Constitution’s equal protection clause. At the time, it was considered the most significant legal decision to date for homosexual activists.
Walter A. Smith Jr., who was in charge of the Hogan & Hartson pro bono department, said Roberts was open to helping when asked.
“He said, ‘Let’s do it,'” Smith told the Times. “And it’s illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job.”
Mat Staver, president of the conservative legal group Liberty Counsel, said Roberts’ involvement in the case is “something to certainly be concerned about.” Staver argued a Ten Commandments case before the Supreme Court earlier this year.
“We need more information to find out the facts behind what Judge Roberts did when he was working on the case,” Staver told Baptist Press. “But if in fact the story is true, it is clearly concerning because, according to the story, Judge Roberts did not hesitate to get involved to work on this case pro bono.
“… If in fact he did this, this would be contrary to everything I’ve read about him thus far. This was a state constitutional amendment passed by the people. For the court to strike that down, I felt, was judicial activism.”
One concern, Staver said, is what Roberts “would do on the Supreme Court if he had a same-sex marriage case come before him.”
The L.A. Times story was the focus of much talk radio Aug. 4. Conservative talk show host Sean Hannity said he now has “some” doubts about Roberts.
“It’s the first sign I’ve seen where his conservative judicial philosophy … may not be as solid as what I thought,” Hannity said on his radio program.
But Richard Land, head of the Southern Baptist Ethics & Religious Liberty Commission, said he still has confidence in Roberts’ nomination.
“I understand it was Judge Roberts’ standard practice to provide pro bono assistance when asked by colleagues at the firm in areas of his expertise, which certainly included constitutional law,” Land said. “… In other words, John Roberts did what lawyers have sworn an oath to do — that is, provide the best legal advice possible to their client, in this case a homosexual rights group that others in the firm had decided to represent.
“Everything in Judge Roberts’ judicial philosophy reveals him to be an original-intent, strict-constructionist judge. It is overwhelmingly probable as a sitting justice he would have voted the same way his mentor, Chief Justice William Rehnquist, did, which was against the majority opinion … We should remember that Judge Roberts did what he had sworn an oath to do — represent his client. And when he is confirmed as a Supreme Court justice, his client will be the Constitution.”
Likewise, Focus on the Family Action released a statement saying that while “this is certainly not welcome news to those of us who advocate for traditional values, it is by no means a given that John Roberts’ personal views are reflected in his involvement in this case.”
“At the time of Romer v. Evans, Roberts was a private-practice attorney expected by his firm to do pro-bono legal work,” the statement read. “However, it is worth noting that it was not Roberts who recommended taking on this case; his minimal involvement was requested by a colleague, who served as the lead attorney, because that colleague so respected Roberts’ legal acumen.
“That’s what lawyers do — represent their firm’s clients, whether they agree with what those clients stand for or not. Nothing we’ve read … alters our belief that Judge Roberts deserves a fair hearing before the Senate Judiciary Committee and a timely up-or-down confirmation vote in the full Senate. We look forward to him being given the opportunity during his hearing to discuss his role in the Romer case, and all of his relevant experience, so that senators can make an informed decision on his nomination.”
Attorney Jean Dubofsky, the lead attorney for homosexual activists in the case, said Roberts’ advice was “absolutely crucial.” At the time Dubofsky worked for the homosexual activist group Lambda Legal and took part in oral arguments.
“Everybody said Roberts was one of the people I should talk to,” Dubofsky told the Times. “He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn’t been very receptive to gay rights.”
The news about Roberts’ involvement in Romer came days after the Senate Judiciary Committee released his answers to a questionnaire. Asked to list his previous pro bono work, Roberts did not mention Romer v. Evans.
“John probably didn’t recall [the case] because he didn’t play as large a role in it as he did in others,” Smith told the Times. “I’m sure John has a record somewhere of every case he ever argued, and Romer he did not argue. So he probably would have remembered it less.”
The fact that it was pro bono work — which is voluntary — should be of concern, Staver said.
“At Judge Roberts’ level, you wouldn’t be working on a project in a firm that you disagreed with,” he said.
Roberts’ questionnaire had helped to ease conservatives’ worries. In it he said that “it is not part of the judicial function to make the law” and “courts should not intrude into areas of policy making reserved by the Constitution to the political branches.”
“[J]udges must be constantly aware that their role, while important, is limited,” he wrote. “They do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”
Said Staver: “Up until now I haven’t seen anything that would have caused concern, and I have been pleased with what I have read and heard about Judge Roberts. This [the involvement with the Romer case] is the first indication of any concern and it clearly needs to be addressed.”
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