The Human Rights Campaign, along with several other gay rights organizations, announced today that it will oppose Senate confirmation of Judge John Roberts as a Supreme Court justice. “Judge Roberts has such a narrow view of what the courts can and should do, it’s a wonder he wants the job at all,” said Human Rights Campaign President Joe Solmonese. “Ultimately, this is about an individual’s right to privacy. From women’s rights to religious freedom to civil rights, there is powerful evidence that Judge Roberts would rule against equality.”
HRC's analysis of Roberts' record dovetails that of Advance Indiana's as set forth in several prior posts to this site. The key points are: (1) He favors a very narrow interpretation of the"liberties" embodied in the U.S. Constitution--no right to privacy, e.g.--if it isn't specifically provided in the Bill of Rights, it doesn't exist; (2) He favors a very narrow interpretation of the Equal Protection Clause of the 14th Amendment--only applies to race in his judgment; (3) He supports efforts by Congress to strip the Supreme Court of jurisdiction over important matters, such as school prayer, abortion and marriage; (4) He does not believe it is the proper role of government to take pro-active steps to end discrimination; and (5) Because he is replacing a moderate member of a closely divided court, his ascension to the Court could tip the balance sharply against a Court that would advance civil justice.
One particularly good observation HRC makes about Roberts' attitude towards the gay community can be found in the advice he gave to President Reagan on AIDS in 1985. While the CDC and all leading health experts had already concluded that HIV could not be spread through casual contact at the time, John Roberts argued to the President that he should not assert to parents that HIV-infected children posed no risk to their children at school because the experts might be wrong. As we know, Ryan White gained national prominence after parents at his school near Kokomo objected to his presence in the classroom with their children, claiming that he posed a health risk of infecting their children. Roberts' sympathies with these parents in light of the medical evidence at the time speaks volumes about him.
HRC proferred the following evidence in support of its opposition to Roberts:
Roberts and fundamental rights.
Just two years ago, the Court finally recognized that the Constitutional guarantee of liberty protects our community and our relationships. The basis for the landmark case of Lawrence v. Texas was the idea that the Constitution draws a line beyond which the government cannot go. Roberts’s writings clearly indicate that he does not agree with the cases and constitutional foundations of Lawrence. He has criticized the Court for what he claims is an intrusion into areas belonging to legislatures, and dismissed what he calls the “so-called right to privacy.” His record indicates that Roberts would not vote to safeguard our liberties, but instead join Justices Scalia and Thomas in upholding limitations on our freedoms.
Roberts and equal protection.
Roberts has taken a similarly narrow view of the Equal Protection Clause, which provided the basis for its decision in Romer v. Evans. As a Reagan Administration lawyer, Roberts wrote that by reading the Equal Protection Clause to cover classifications other than race, the Court had imposed “values which do not have their source in that document.” We are concerned that his narrow view would likely have led Roberts, had he been on the Court when Romer v. Evans was decided, to conclude that Colorado’s discriminatory law was constitutional.
A note on Roberts and Romer v. Evans. We are mindful that Judge Roberts provided a few hours of pro bono help to the attorneys in Romer v. Evans — a landmark case for our community. Some have said that this work — which consisted mostly of playing the role of a conservative justice — demonstrates that Roberts is not personally anti-gay. This theory is not relevant to the important issue for our community: how Roberts would vote as a Supreme Court justice. Roberts has repeatedly written that the Court should not stand up for civil rights, but rather allow legislatures to enact such laws as they wish — even those that deny the rights that Americans understand to be fundamental.
Roberts and “court stripping.”
Our concern that Judge Roberts would not enforce constitutional protections is reinforced by his writings on “court stripping” statutes. Last year, the House of Representatives passed the so-called Marriage Protection Act, which would have prevented the courts from even hearing challenges to the federal Defense of Marriage Act (“DOMA”). Roberts’s writings indicate that he believes such statutes are constitutional, a view that undermines the Court’s constitutional function as it has been understood for over 200 years. Should such a measure pass the Congress, Roberts would likely vote to uphold it and effectively block our community at the courthouse door.
Roberts and sound science.
In spite of the clear consensus among social science, psychiatric, psychological, and medical associations in favor of GLBT equality, courts are frequently presented with unfounded assertions that there is conflicting evidence. The way that a judge regards research findings before the Court can affect a case’s outcome. In short, it can mean the difference between Goodridge, in which the Massachusetts court ruled that there was no rational basis for excluding same-sex couples from marriage, and Lofton, in which the Eleventh Circuit upheld Florida’s anti-gay adoption law even though every credible social science and child advocacy group opposed it.
We were troubled to learn that Roberts, as a Reagan-administration attorney, seemed to disregard mainstream scientific evidence about how HIV is transmitted. In September 1985, Roberts cautioned President Reagan against stating that the AIDS virus could not be spread through casual contact among schoolchildren, claiming that this conclusion was in dispute. In fact, August 1985 Centers for Disease Control guidelines clearly stated that “Casual person-to-person contact, as among schoolchildren, appears to pose no risk.” Our community needs to know whether, as a justice, Roberts would look to the sound and tested science about our community. This is an issue that we believe the Senate should examine thoroughly.
Roberts and Congress’s power to protect our community.
Because the GLBT community is particularly vulnerable to hate violence and discrimination, Congress’s authority to prevent these problems is of vital importance to us. Roberts’s record shows that he holds a very limited view of Congress’s authority, and would likely vote with the Court’s most conservative justices in cases challenging civil rights statutes, workplace protections, and hate crimes legislation.
Roberts as a replacement for Justice Sandra Day O’Connor.
Justice O’Connor, who announced her retirement on July 1, 2005, has often been a critical swing vote in favor of equality. In Romer v. Evans, she joined a 6-3 majority to strike down an anti-gay law. In Lawrence v. Texas, she wrote a concurring opinion that Texas’s sodomy law violated the Equal Protection Clause. In Planned Parenthood v. Casey, she voted to uphold Roe v. Wade — four justices dissented in that case. In two closely divided cases about public displays of the 10 Commandments handed down June 27, she voted to protect the separation of church and state. On all of these areas critical to our civil rights, Judge Roberts has stated that he holds the opposite position. His elevation to the Court would be a shift away from equality.
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