UPDATE: My bad, the LA Times story is from 2005. I didn’t remember this. And actually, the rest of the post is still relevant – this adds a fascinating wrinkle to the question of Roberts’ position on health care reform (he’s come out liberal on more than one issue), and on where he might come out on the upcoming gay marriage cases.
A whopper of a revelation from the LA Times about conservative Supreme Court Justice Roberts providing pro bono help to gay rights advocates in a landmark lawsuit that we eventually won:
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.
Gay rights activists at the time described the court’s 6-3 ruling as the movement’s most important legal victory. The dissenting justices were those to whom Roberts is frequently likened for their conservative ideology: Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas.
The case in question was Romer v Evans, and it was a landmark victory for the gay community – our biggest legal victory to date, at that point. And the state constitutional amendment that was struck down was far worse than the LA Times describes. Here’s Wikipedia with the real story:
In 1992, an amendment to the Colorado state constitution (Amendment 2) that would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class was passed by Colorado voters in a referendum. A state trial court issued a permanent injunction against the amendment, and upon appeal, the Colorado Supreme Court ruled that the amendment was subject to “strict scrutiny” under the Equal Protection Clause. The state trial court, upon remand, concluded that the amendment could not pass strict scrutiny, which the Colorado Supreme Court agreed with upon review. Upon appeal to the United States Supreme Court, the Court ruled in a 6-3 decision that the amendment did not even pass the rational basis test, let alone strict scrutiny. The decision in Romer set the stage for Lawrence v. Texas (2003), where the Court overruled its decision in Bowers.
Wow. Just wow.
This certainly won’t help Justice Roberts with conservatives who are already ticked at him for siding with the majority to uphold Obamacare earlier this year.
Conservatives found new ways to express their anger: Radio host Glenn Beck was offering a $30 T-shirt with Roberts’s face and the word
And now we find out he’s done pro bono work for “the gay.”
This opens up a fascinating question as to whether Justice Roberts might actually be a swing vote on gay rights issues before the court, but also whether the anti-gays may now try to force Justice Roberts to recuse himself.
Richard Socarides wrote earlier this year about Justice Roberts and whether he just might be a swing vote on the Prop 8 case:
Olson, writing in Time about the health-care ruling, says the “decision abounds with legal and political ironies.” Although he goes on to discuss this incongruity in a different context, he has been hypothesizing for some time that the influences on Chief Justice Roberts in the health-care case might also lead him to rule in favor of the rights of gay Americans to full equality, including marriage. There is some reason to believe that Roberts would not want to be seen as leading a Court of right-wing judicial activists.
The question is whether a decade or more from now Chief Justice Roberts really wants to be leading a Court that embodies the last vestiges of anti-gay discrimination in the country, even as fewer and fewer Americans oppose equality. A ruling in favor of gay equality is possible, perhaps even likely, with or without the swing vote of Justice Kennedy. After the health-care decision, Ted Olson’s belief that he can get John Roberts’s vote for same-sex marriage is no joke.
It’s just fascinating, and weird, all around.