September 23, 2005

Roberts is mum on Texas sodomy ruling

by Eric Resnick

Washington, D.C.--The Senate Judiciary Committee hearings on the confirmation of John G. Roberts to become the Chief Justice of the United States contained some direct questions as to the nominee?s thoughts on lesbian, gay, bisexual and transgender equality.

If confirmed, Roberts, 50, will likely be the nation?s top judge for 35 to 40 years, and oversee a court that will decide whether the U.S. Constitution gives equal protection and equal recognition to LGBT citizens or not.

During the hearings, Roberts held his views on LGBT matters very close to his vest, as he has on other matters. His answers, however, were enough for LGBT advocacy groups to join most other civil rights organizations in a loud call for his rejection.

By contrast, the anti-gay establishment is urging his swift confirmation.

Lambda Legal, an LGBT public interest law firm likely to appear before the court, submitted to the committee 30 questions it wanted asked of Roberts. They covered equal protection, right to liberty, right to privacy, federalism, disability discrimination, gender discrimination, separation of church and state, Congress? power to strip federal court of authority, stare decisis or adherence to precedent, and his approach to constitutional interpretation.

A number of Lambda?s questions were asked, generally by the eight committee Democrats, but also by Republicans Mike DeWine of Ohio and committee chair Arlen Specter of Pennsylvania.

On these questions, Roberts spoke in platitudes, then claimed, as he did with nearly all questions, that he could not answer because the matter might be before him someday.

Wisconsin Democrat Russell Feingold asked Roberts, ?Do you believe that the Congress has the power under the constitution to prohibit discrimination against gays and lesbians in employment??

After attempting to avoid an answer, the nominee replied, ?Personally, I think everyone should be treated with dignity in that area and respect.?

After another attempt to avoid answering, Feingold pressed, ?Can you imagine an argument that would be contrary to that view?? Roberts answered, ?Well, I don?t know what arguments people would make. I just know that I should not be expressing an opinion on issues that could come before the court.?

Prior to the hearings, much was made of Roberts? involvement in the 1997 Romer v. Evans case where the court struck down a Colorado constitutional amendment barring any gay and lesbian equal rights laws.

Roberts provided pro bono counsel to the LGBT activists helping to prepare the case for the high court. It was their first victory before the court.

Illinois Democrat Dick Durbin asked Roberts, ?If the other side had come to you first, would you have helped them?? Roberts answered, ?It?s a hypothetical case. I think I would have.? He continued, ?It has not been my general view that I sit in judgement of clients when they come to me.?

Roberts was questioned extensively on his opinion of a constitutional right to privacy, specifically as it is defined in Roe v. Wade and its progeny Lawrence v. Texas. The first case defined the right to choose one?s sexual and reproductive conclusion, the second applied it to rule state sodomy laws unconstitutional.

New York Democrat Charles Schumer peppered the nominee with questions on Lawrence.

?I assume that you disagree with Justice Thomas? view that there is no general right to privacy as he stated in Lawrence,? Schumer proposed.

Roberts answered, ?Well, I think that question depends, obviously, on the modifier and what you mean by ?general?.?

?Let?s forget that Justice Thomas said it,? Schumer followed up. ?You would disagree that there is no general right to privacy in the Constitution.?

Roberts responded, ?I wouldn?t use the phrase ?general? because I don?t know what that means . . . I think there is a right to privacy protected as part of the liberty guarantee in the due process clause.?

?A substantive right to privacy?? Schumer pressed.

?It?s protected substantively, yes,? Roberts answered.

?Your reading of Justice Thomas? case in Lawrence, that he does not believe in that?? asked Schumer.

?No. I think his statement obviously focused on ?general.? And his conclusion in that case was that the right to privacy protected under the due process clause, that you noted he acknowledged at his hearings, did not extend to the [homosexual] activity at issue in Lawrence,? replied Roberts.

Schumer continued, ?And you are not willing to say that your view is different than the view Justice Thomas stated in Lawrence.?

Roberts answered, ?I am not willing to state a particular view on the Lawrence decision. And that?s consistent with the view I?ve taken.?

This unwillingness to state a position on Lawrence is one of the major difficulties LGBT rights advocates have with Roberts.

According to Lambda director Kevin Cathcart, ?This suggests that his conception of privacy protections may be so narrow as to allow for gay people to be made criminals for private, consensual intimacy between adults.?

?But what is clear is that he has refused to provide substantive answers to scores of questions designed to determine whether he is committed to fairness and equal rights for all Americans. In sum,? continued Cathcart, ?he has not allayed the serious concerns that Lambda Legal expressed when his nomination was first announced.?

The Senate Judiciary Committee is expected to vote Roberts to the floor September 22, where he is expected to be considered within the week.

The Supreme Court begins its new session October 3.

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