John Roberts Provided Critical Help To Gay Rights Activists In 1996 Landmark Supreme Court Victory

by Steve

Gee, I wonder what James Dobson and the other members of the American Taliban think this morning about their fair-haired boy John Roberts, upon finding out that Roberts provided the critical and ultimately successful pro bono legal advice through his firm to gay rights activists, that led to their landmark 6-3 Supreme Court victory in 1996, a victory that put Antonin Scalia, Clarence Thomas, and William Rehnquist in the small minority.

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.

The lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

Roberts did not mention his work on the case in his 67-page response to a Senate Judiciary Committee questionnaire, released Tuesday. The committee asked for "specific instances" in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them.

Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.

"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "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."

She said he gave her advice in two areas that were "absolutely crucial."

"He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case," Dubofsky said.

She said Roberts served on a moot court panel as she prepared for oral arguments, with Roberts taking the role of a Scalia-like justice to pepper her with tough questions.

When Dubofsky appeared before the justices, Scalia did indeed demand specific legal citations from the lower-court ruling. "I had it right there at my fingertips," she said.

"John Roberts … was just terrifically helpful in meeting with me and spending some time on the issue," she said. "He seemed to be very fair-minded and very astute."

Dubofsky said Roberts helped her form the argument that the initiative violated the "equal protections" clause of the Constitution.

The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Suzanne B. Goldberg, a staff lawyer for New York-based Lambda, a legal services group for gays and lesbians, called it the "single most important positive ruling in the history of the gay rights movement."

In the blistering dissent, Scalia, joined by Rehnquist and Thomas, said "Coloradans are entitled to be hostile toward homosexual conduct." Scalia added that the majority opinion had "no foundation in American constitutional law, and barely pretends to."

Yet Roberts helped gay rights activists in essence “beat” the terrible three that he will now be serving with.

I think before folks get all worked up over what this means, and whether or not this means that Roberts is a closet liberal, it should be remembered that Roberts’ firm was required to do pro bono work. He was considered one of the star Supreme Court litigators in town, and therefore would be someone whom a pro bono client would want to get assistance from in preparing a case for the court.

And just because Roberts beat Scalia/Thomas/Rehnquist on this one by knowing how a case needed to be prepared and presented to the court on an appeal of a state law, it doesn’t mean that once seated on the court himself that Roberts actually supports gay rights or is opposed to state-sponsored housing discrimination against gays. What is key to know here is whether Roberts philosophically believed in this case, or was he just being a good lawyer working to find a way for his client to win, regardless of his own personal beliefs?

Still, it will be fun to see freeper heads explode over this.