Roberts Is As Conservative As You Can Get: Not Good For Gay Civil Rights

President George W. Bush made his highly anticipated choice today to replace Justice Sandra Day O'Connor, and he chose a D.C. Court of Appeals judge and former Hoosier, John Roberts, Jr., a 50-year old white male. In a law.com article written earlier this year, one of his friends said, "He is as conservative as you can get." In summarizing the consensus among his friends, the article reported that "Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas." What that means is that in a close case like the recent Lawrence v. Texas decision, which struck down state sodomy laws as unconstitutional under due process jurisprudence, a Justice Roberts would have sided with the conservative bloc consisting of Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas who all dissented in the Lawrence decision.

The law.com article speculates that a Justice Roberts would be a "reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action." The article cites several key indicators of his true stripes mentioned by those who know him best, including: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson, the D.C. law firm where he worked as an appellate lawyer.

As President Bush noted in his announcement, Roberts grew up in Indiana, although he was born in Buffalo, New York. Roberts' parents raised him in Long Beach, Indiana (LaPorte County), but he headed east to attend undergraduate and law school at Harvard. During law school, he clerked one summer at the Indianapolis law firm of Ice Miler Donadio and Ryan. He counts among his friends, Barnes & Thornburg attorney Peter Rusthoven, with whom he served in the Reagan administration. Roberts contributed $1,000 to Rusthoven's failed bid for the United States Senate in 1998. The ultra-conservative Rusthoven finished third behind Fort Wayne Mayor Paul Helmke and gadfly, conservative Indianapolis attorney, John Price. He also contributed $500 to Senator Richard Lugar's campaign committee in 2000. Neither Rusthoven nor Lugar have held favorable views on issues important to the GLBT community.

Fox News commentator William Kristol described Roberts as not being a movement conservative during a post-announcement discussion, but that simply doesn't match his record as noted by his friends. Of particular importance is Robert's membership in the Federalist Society. As a former member of the organization, Advance Indiana's editor Gary R. Welsh is quite familiar with the views of the organization's members. One of the central purposes behind the organization's establishment was to counter the "orthodox liberal ideology" of the country's law schools. One of its co-founders was former Indiana Republican Congressman and failed 2000 gubernatorial candidate, David McIntosh, who also has a very hostile record towards gays and lesbians. The organization describes its mission, in part, as "reordering priorities within the legal system to place a premium on individual liberty, traditional values (emphasis added), and the rule of law." The organization describes its members as being conservatives and libertarians. Among its favorite judges on the Supreme Court are the Court's most conservative judges, Chief Justice Rehnquist and Justices Scalia and Thomas.

A recent white paper included on the Federalist Society's website is one entitled, "Gay Marriage and the Federal Judicial Confirmation Process," which was written in February, 2004; it provides a good insight into how the Federalists view this hot button issue. As the article's title suggests, the authors express concern that gay marriage will become a litmus test for both liberal and conservative activists in the federal judicial confirmation process. While the authors of the article do not take a position on gay marriage, they are critical of courts for "creating new rights" such as the Supreme Court's decision in Lawrence v. Texas in 2002, and the Massachusetts' high court's 2003 decision making it unconstitutional to prohibit gay marriages under state law. The article is very sympathetic to Scalia's dissenting opinion in Lawrence v. Texas and attributes the outcome of the Massachusetts state court decision, in part, to the Court's creation of a "new right" in the Lawrence case. The authors argue that the issue of gay marriage should be left strictly to the political branch of government, and that the Courts should not enter the political fray by "lawmaking." Of course, the authors overlook the fact that the Court's so-called "lawmaking" helped bring an end to such things as segregated schools, bans on interracial marriages and generalized discrimination against blacks and women, all enacted by the political branch.

The Lawrence decision is instructive on how a Justice Roberts would rule in similar cases. In the dissenting opinion written by Scalia and concurred in by Rehnquist and Thomas, the dissenters argued that the State of Texas had a rational basis for enacting its anti-sodomy law--it's "immoral and unacceptable." Justice Scalia's dissenting opinion equated homosexual sex to bigamy, bestiality and incest. To Scalia, Rehnquist and Thomas, regulating sodomy was no different than laws prohibiting prostitution or the use of heroin. The dissenting opinion argued that the Court should leave it to the legislative branch to determine what activities were legally permissible. They strongly rejected the majority's view that a person's liberty encompassed the right to engage in homosexual sex.

Robert's views on the separation of church and state are also a serious cause for concern. Justice Scalia has argued forcefully in church-state cases before the Court that previous cases have too broadly applied the separation clause of the First Amendment. Essentially, he believes it only requires that the government not establish a state religion, but that government is otherwise free to embrace and support religion in its institutions. Robert's in past legal briefs has similarly argued that public high schools should be allowed to conduct religious ceremonies as part of a graduation program, a position rejected by a majority of the Supreme Court in 1992. Roberts also supports laws making it a criminal act to burn the American flag, a view at odds with First Amendment free speech jurisprudence.

It goes without saying that Roberts' nomination will be warmly embraced by Christian fundamentalist groups like Advance America and the American Family Association, the two leading groups promoting anti-gay sentiment in Indiana. While Roberts is no doubt a highly qualified candidate for the Supreme Court, his strong conservative views should give pause to anyone concerned about advancing the civil rights of gays and lesbians. There is absolutely nothing in Roberts' past that would suggest he would be anything but to the right of Justice Sandra Day O'Connor, the moderate-conservative justice he will replace. With the political branch firmly in the control of Christian fundamentalists at the federal level and many states, including Indiana, a more sympathetic Supreme Court becomes all the more important. Roberts' nomination offers little hope that his presence will do anything but make the Court more hostile to the rights of gays and lesbians.