Washington Blade - September 23, 2005
Lou Chibbaro Jr.

Lambda's announcement came a little more than a week before the Senate was expected to confirm Roberts' nomination to replace the late Chief Justice William Rehnquist by a filibuster-proof margin of 70 votes or more, with as many as 30 Democratic senators poised to back Roberts.

While officials with Lambda and other gay groups were resigned to Roberts' confirmation by the Senate, they noted that the questioning of Roberts by several senators about gay rights-related issues during his highly publicized confirmation hearing last week represented an historic first of sorts.

Never before has a U.S. Supreme Court nominee been subjected to questioning on gay-related legal issues at his or her confirmation hearing, they said.

"This shows how much has changed in the GLBT rights movement since the last Supreme Court vacancy," said Kevin Cathcart, Lambda's executive director.

But Cathcart and other gay rights attorneys said they were also disappointed that members of the Senate Judiciary Committee, which held the Roberts confirmation hearing Sept. 12-15, did not ask more probing questions about Roberts' stand on gay issues.

Lambda's questions

Lambda submitted a list of 30 questions touching on gay-related legal issues to members of the Judiciary panel, including Senators Edward Kennedy (D-Mass.) and Patrick Leahy (D-Vt.), who have been longtime gay rights supporters.

Lambda attorney John Davidson acknowledged that the senators asked only about five of Lambda's questions, although the senators' questions on other matters sometimes touched on gay issues.

Among the gay-related questions the senators addressed was the landmark 2003 Supreme Court decision of Lawrence vs. Texas, which overturned state sodomy laws. The Lawrence decision is based on the principle that a "substantive" right to privacy exists in the Constitution.

Roberts told the committee he believes the Constitution protects the right to privacy, but legal experts said his cautiously worded explanation of his views on such rights gave no indication of whether he believes constitutional privacy rights should include sodomy or other decisions about sexual intimacy.

"John Roberts had every opportunity to demonstrate whether he is committed to fairness and equality, but chose to dodge key questions," Cathcart said.

"He provided no evidence of his commitment to these fundamental principles, and without such a commitment he is not qualified to serve," Cathcart said. "As a result, we are opposing his nomination."

Gay rights attorneys have said they were especially disappointed that no one asked Roberts to discuss his views on the Supreme Court ruling of Romer vs. Evans, which overturned a Colorado State constitutional amendment that banned the state legislature and cities and towns in the state from passing laws to protect gays from discrimination.

The Romer case was based on the Constitution's equal protection clause and is considered by gay rights attorneys to be a crucial factor in future gay rights cases.

Four of the nation's largest gay civil rights groups came out against the Roberts' nomination last month - the Human Rights Campaign, the National Gay & Lesbian Task Force, the National Center for Lesbian Rights, and Parents, Families & Friends of Lesbians & Gays. The National Stonewall Democrats, which represents gays in the Democratic Party, also announced its opposition to Roberts.

Some activists criticized the groups' decision to take a position before the hearing and said they wanted to wait for a group like Lambda to assess Roberts' views on gay and AIDS related issues based on his own statements at the hearing.

Many other civil rights groups, including the NAACP, the National Organization for Women and abortion rights groups, have also opposed the nomination. The ACLU, which opposed Judge Robert Bork as well as Rehnquist's elevation to chief justice, has not announced opposition to Roberts.

"Our position stems from our belief that gay men, lesbians, bisexuals, and transgender people and people with HIV must have a level playing field when they appear before the court," Cathcart said in announcing Lambda's opposition to Roberts. "The Constitution requires this, and it is every justice's responsibility to ensure that it happens."

Log Cabin Republicans released a statement this week expressing concern over Roberts' refusal to disclose his views on important legal questions while saying he was "well-qualified to be chief justice."

"Judge Roberts' testimony during the confirmation hearing exhibited that he has a firm grasp of the most complex legal issues and a temperament and intellect worthy of a justice on the Supreme Court," the Log Cabin statement said.

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