Sup. Ct. Justice Roberts did pro bono work for gays in landmark case

UPDATE: My bad, the LA Times story is from 2005.  I didn’t remember this.  And actually, the rest of the post is still relevant – this adds a fascinating wrinkle to the question of Roberts’ position on health care reform (he’s come out liberal on more than one issue), and on where he might come out on the upcoming gay marriage cases.

A whopper of a revelation from the LA Times about conservative Supreme Court Justice Roberts providing pro bono help to gay rights advocates in a landmark lawsuit that we eventually won:

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.

Gay rights activists at the time described the court’s 6-3 ruling as the movement’s most important legal victory. The dissenting justices were those to whom Roberts is frequently likened for their conservative ideology: Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas.

The case in question was Romer v Evans, and it was a landmark victory for the gay community – our biggest legal victory to date, at that point.  And the state constitutional amendment that was struck down was far worse than the LA Times describes.  Here’s Wikipedia with the real story:

In 1992, an amendment to the Colorado state constitution (Amendment 2) that would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class was passed by Colorado voters in a referendum. A state trial court issued a permanent injunction against the amendment, and upon appeal, the Colorado Supreme Court ruled that the amendment was subject to “strict scrutiny” under the Equal Protection Clause. The state trial court, upon remand, concluded that the amendment could not pass strict scrutiny, which the Colorado Supreme Court agreed with upon review. Upon appeal to the United States Supreme Court, the Court ruled in a 6-3 decision that the amendment did not even pass the rational basis test, let alone strict scrutiny. The decision in Romer set the stage for Lawrence v. Texas (2003), where the Court overruled its decision in Bowers.

Wow.  Just wow.

This certainly won’t help Justice Roberts with conservatives who are already ticked at him for siding with the majority to uphold Obamacare earlier this year.

Conservatives found new ways to express their anger: Radio host Glenn Beck was offering a $30 T-shirt with Roberts’s face and the word

And now we find out he’s done pro bono work for “the gay.”

This opens up a fascinating question as to whether Justice Roberts might actually be a swing vote on gay rights issues before the court, but also whether the anti-gays may now try to force Justice Roberts to recuse himself.

Richard Socarides wrote earlier this year about Justice Roberts and whether he just might be a swing vote on the Prop 8 case:

Olson, writing in Time about the health-care ruling, says the “decision abounds with legal and political ironies.” Although he goes on to discuss this incongruity in a different context, he has been hypothesizing for some time that the influences on Chief Justice Roberts in the health-care case might also lead him to rule in favor of the rights of gay Americans to full equality, including marriage. There is some reason to believe that Roberts would not want to be seen as leading a Court of right-wing judicial activists.

The question is whether a decade or more from now Chief Justice Roberts really wants to be leading a Court that embodies the last vestiges of anti-gay discrimination in the country, even as fewer and fewer Americans oppose equality. A ruling in favor of gay equality is possible, perhaps even likely, with or without the swing vote of Justice Kennedy. After the health-care decision, Ted Olson’s belief that he can get John Roberts’s vote for same-sex marriage is no joke.

It’s just fascinating, and weird, all around.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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60 Responses to “Sup. Ct. Justice Roberts did pro bono work for gays in landmark case”

  1. Jake Orlando says:

    I’m weirdly hopeful about Chief Justice Roberts. I remember him quietly allowing DC’s marriage equality law to move forward. Many people didn’t notice or they completely forgot. I remember, and I think that he won’t produce a totally bigoted opinion. I think if he’s the fifth yes then the opinion will be rather moderate.

  2. Jake Orlando says:

    It will be a 5-4 decision in our favor. If Kennedy isn’t the fifth, then Roberts will be. Think: legacy.

  3. Butch1 says:

    I only wish the rich had to play by the same rules as the rest of us. A person of his age should have been refused an heart transplant, period. He booted out someone much younger who needed this heart. He got it because he was Dick Cheney, he is powerful and rich, and he paid a lot of money to get what he wanted. Now we have to put up with this POS for another decade or more until something else happens to him. I just hope the person he bumped out of an heart was able to get one without suffering any further.

    This is what will happen if they get rid of any universal healthcare insurance or the present Obamacare system. It will be “survival of the fittest” or Which millionaire can pay for the best care that money can buy, with get the service right then. Every one else will not be able to afford it and will suffer and die. This is the republican way. You can thank Myopic Visionaries like Paul Ryan and his like ( Obama, Pelosi and Hoyer to name a few ) who want to destroy Social Security, Medicare / Medicaid and yes, Veteran’s benefits by starting out negotiating with the republicans using them in as tools when they shouldn’t even be on the table.

    This is an unfeeling Obama who just doesn’t care about the people who have worked all of their lives and put away money through their payroll for retirement and live on Social Security. He doesn’t realize or just doesn’t care that negotiating it away reduces our money to live on and its benefits.They continue to go after our Safety Net instead of the Defense Budget because it is OUR money and THEY have been trying to get at it for years. They have created an Emergency so that THEY can pretend to fix it. If we had any real leaders to fight Obama, Pelosi, Hoyer and the like, they would call them out on what they are doing by getting in front of the microphones and shouting it to the world. I know Bernie Sanders has tried to do it without being too nasty. One has to try and maintain friends in the Congress but it is time to point out to the people when these leaders are trying to screw you too. He needs to point out that they are planning to cut Social Security even thought they say they are not and protecting it. They need to start defending themselves ON THE RECORD! Obama has finally admitted it is on the table after lying about it for so long. Why isn’t the country outraged at him? It should be. The White House phones should be ringing off the hooks..

  4. wmforr says:

    Sure, just ask Honey Booboo.

  5. wmforr says:

    Even the Koch’s favor gay marriage. Because it doesn’t threaten their billions.

  6. wmforr says:

    Given the chance, Thomas would probably reversel Loving vs. Virginia, and so would his white wife.

  7. wmforr says:

    So he finally got a heart, and it ticks. But did he remember to bring the oil can?

  8. wmforr says:

    He’s not an “originalist” or any other fancy name. He is loaded with his own opinions and prejudices, which guide his decisions. All his legal and constitutional explanations are simply after-the-fact rationalizations. After all, he recently said the only reason murder is illegal is our “feelings” about it and [religious] morality..

    He is a “great legal mind” like Rove is a “political genius”, until the masks drop.

  9. wmforr says:

    For those who didn’t follow the link, the above should read: ” Glenn Beck was offering a $30 T-shirt with Roberts’s face and the word COWARD.

  10. Rich says:

    I really don’t agree that Roberts was any liberal in the health care case. He was just sane. He put into the decision that ACA mandate is not a valid exercise under Commerce Clause, and probably most importantly, he made coercion as a legitimate reason to curb Congress’ spending power (Medicaid expansion), which no prior Supreme Court decision has done. Upholding ACA mandate under Taxing and Spending Clause is so established that I was really surprised that Kennedy wasn’t with Roberts. He was pretty much the conservative he promised to be in the confirmation hearing.

    From my observation of Roberts, he will probably argue the petitioners in the Prop. 8 case have no standing in the case.

  11. rmthunter says:

    Romer and Lawrence sort of knocked the props out from under states’ rights in equal protection cases. If anything, I see them dodging Prop 8 on the standing issue. DOMA — there’s no compelling state interest there, and I doubt that the Court will want to leave a patchwork of enforceability — it’s been overturned by four Circuit courts, if I remember correctly, and hasn’t been tested in the others.

  12. rmthunter says:

    That was my first thought, which also goes a long way toward explaining Roberts’ decision on Obamacare — the insurance industry was ecstatic about it, since it brings in millions of new customers. My guess is that on Prop 8 and Windsor, Roberts might very well side with the angels, since there’s no corporate interest involved. He might not even be a swing vote — anyone want to entertain the possibility of 6-3 decisions? (If they get past the standing questions and actually go on to the merits.)

  13. Butch1 says:

    He has someone’s new heart. Bumped someone else out of the way and got it. It’s nice to have power and be rich as well. I wonder who got the short straw?

  14. Butch1 says:

    Even better! Thank goodness I’ve already had my coffee! LOL!

  15. Timothy says:

    “Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

    I still recall being terribley pleased as I read the opinion back then, that the court actually put in writing what plainly motivated this amendment: ANIMUS. It always seems to be the case when you get religious people writing laws, then justices have to throw them back in their faces with stinging comments on how the proposed laws have no basis in reason. If you have the opportunity, go and read Kitzmiller v. Dover Area School District, which was a case on intelligent design. In that case the judge really slammed the religious fanatics on the school board: “The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachersof the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”

  16. Stratplayer says:

    Perhaps unvarnished, but he can expect to be shellacked by the right wing.

  17. AnitaMann says:

    I think that’s possible. Roberts, unlike the other conservative ideologues, has his name on the court. He has to be concerned about how this decision will be talked about in 50 years. It could end up coming out even better than this-striking down Prop 8, though I’m not counting on it.

  18. AnitaMann says:

    The five hard right justices are corporatists. Only Scalia, Thomas, and maybe Alito are hardcore homophobes too. If it doesn’t involve the interest of corporations, there’s a decent chance this SCOTUS will do the right thing.

  19. AnitaMann says:

    Even if that happens, we’re still stuck with him. Only the coroner will take him away.

  20. Sweetie says:

    Obamacare cared about the mandate and not the reform we needed, like single-payer or a public option. This is just like the way Obama himself cared about making that deal at the start, while hiding it from the public, pretending otherwise.

  21. Sweetie says:

    Everyone’s gay, if you believe the comments here.

  22. Sweetie says:

    The reason Scalia hates homosexuality so much is because when he looks in the mirror he considers what sex with him would be like.

    Worse yet, sex involving two of him.

  23. FunMe says:

    Ewwwwwwww! :-)

  24. FunMe says:

    3 gays … and a lobster. :-)

  25. FunMe says:

    I think he’s actually dead … except for his fake heart. ;-)

  26. Don Chandler says:

    Yeah, we need more than circumstantial evidence.

  27. MyrddinWilt says:

    The climate of public opinion was very different then. The justices didn’t even realize Lawrence would be a landmark decision when they gave the ruling.

    Everyone understands that this ruling is going to be a BFD if they do a Lawrence on it. It will be the litmus opinion that keeps being raised over and over.

    It is worth remembering that Kennedy also started like Roberts. Quite possibly we will be looking at a court in five years time where Kennedy’s de facto replacement is Roberts and Alito is the new Scalia.

  28. MyrddinWilt says:

    I want him to be caught in bed with Clarence Thomas

  29. WarrenHart says:

    This is old worn out news. I’ve read it so many times over the years I could probably recite the entire case, well maybe not, but it’s old as hell.

  30. karmanot says:

    And sociopaths are often very charming.

  31. karmanot says:

    Rehnquist was also a prescription drug addict. I keep trying to convey that being nice is not the same thing as civil justice.

  32. karmanot says:

    Ironically, Cheney’s blood money will float that family for generations.

  33. scottrose says:

    Bigots are by definition malicious.

  34. Randy says:

    All those millions you made on behalf of Halliburton to enrich his friends and himself while VP don’t really mend a damaged heart, do they, Mr. Cheney?

  35. BeccaM says:

    I wrote about this the other day in the comments, about how SCOTUS wouldn’t have invited both cases’ attorneys to present briefs on standing without expecting that door to be walked through.

    Like John Masters below, I’m no legal expert, but I am a regular reader of SCOTUSBlog and other sources of cogent analysis. My prediction is the court will rule against standing for the PropH8 supporters for several important reasons, top of which is that the proposition, as written, did not include the usual boilerplate to allow non-governmental entities to defend in court. By law, this means it was up to the discretion of the California Secretary of State and Governor whether to appeal Judge Walkers decision or accept it — and they chose not to. At that point, by most legal standards, the ruling should have taken effect, no appeals. The other top reason, IMHO, is that the PropH8 supporters cannot under any reasonable measure or circumstance demonstrate they personally would be harmed if gay people can marry in California. Same-sex couples, on the other hand, can easily prove they are harmed — socially, legally, and financially — by being denied this right. And the third reason is the one upon which many of the upheld appeals rested — the fact that for part of a year, gays and lesbians in California could marry, and then that right was rescinded.

    As for DOMA? I think that because the DOJ gave the go-ahead for BLAG to take over defense of the DOMA, some narrow grounds will be found to support standing. I could be wrong though because this notion of a partisan group from one house of the legislative branch undertaking the defense of a law Congress itself passed could get into separation-of-powers issues.

    And as for how this court will decide? Your guess is as good as mine. We already know there are two pre-judged votes against gay rights in every circumstance — Scalia and Thomas.

  36. guest says:

    I wouldn’t have high hopes of final decision on this matter from this Court. The issue is too divisive yet — especially for this crew. On the other hand, the Court has to recognize the will of the people where it has been expressed. It’s telling that the Court has asked the parties in both cases to brief the standing issue. The most likely outcome is that the Court will hold that the self-appointed guardians of righteousness in the Prop 8 case and the House Republicans in the DOMA case don’t have standing, which will mean that Prop 8 is out and same-sex marriage will be the law in California, and the federal government will be required to recognize same-sex marriages for purposes of federal law and benefits. But I don’t see this Court reaching out to invalidate state law prohibitions on or refusals to recognize same-sex marriage on equal protection grounds. Not yet. And then the next case will be a case where a couple lawfully married in a same-sex marriage state moves to someplace like Oklahoma, and one of the partners dies, and the issue is over the disposition of marital property and state inheritance taxes. And at that point, the Court will need to confront the full faith and credit issue. But that’s not these cases. And it may not be all bad if it shakes out this way. Public opinion is changing. By the time the Court gets a case where it has to confront the issue head-on, there may be enough of a foundation to make it relatively non-controversial.

  37. Skeptical Cicada says:

    i’m not sure why people are treating this as a revelation. We knew about this during his confirmation process. He didn’t hide it.

  38. I don’t want Scalia to die of a heart attack, I want him to be caught in bed with an 18 year old rent boy.
    I am not as charitable as you, FunMe.

  39. This is end of the world stuff, cats sleeping with dogs, the Sta-Puft Marshmallow man, etc.

  40. Rob says:

    This is not new. This information came up during his confirmation hearing. At the time Roberts said he participated in the case because he was asked, just as he assisted in every other pro bono case where he was asked. While it’s possible that he may rule against the constitutionality of DOMA, I don’t believe Roberts’s participation in the pro bono matter tells us anything. See also his joining the dissent in CLS v. Martinez.

  41. Kelvin Mace says:

    Screams from the Right for recusal in 3…2…1…

  42. 2patricius2 says:

    I remember the article in the Advocate prior to the Lawrence v Texas decision, about a gay couple that lived next door to Chief Justice Rehnquist. Rehnquist reportedly treated them very well and they had been kind to his family. The author speculated that Rehnquist would rule against the Texas law, in favor of Lawrence. But when push came to shove, he did not. I hope Roberts rules in our favor. I hope he is more humane and just than Rehnquist.

  43. karmanot says:

    “argue for a federal government that leaves definitions of marriage up to the states” I think that is what will happen and Scalia will be on board with that. Thus, ultimately the old State’s Supreme Courts vs lawsuits ping pong game will go on for generations. The issue of the State’s right to legally establish bigotry ( in spite of precedent against such) may not be a problem for this court, which has been corrupted by biased decisions like the Citizen’s Against United Case.

  44. FLL says:

    This old photo of John Roberts when he was at Harvard during the 1970s has been around for a while. It’s a photo of him partying in Martha’s Vineyard with friends Don Scherer and Richard Lazarus.
    (Eye roll.)

  45. John Masters says:

    Well I’m not a legal expert, but as a lay-observer of the court, here’s what I think will happen. The issue is more Roberts’ age than his legal/ethical/moral leanings. I think he’s as conservative as they come, but hopefully not interested, given how long he may get to serve on the Court, in having his name forever after associated with a Dred Scott-like decision denying gay people equal rights.

    So, I’d bet a nice dinner that’s the reason for all this effort around getting arguments on standing. It’ll be hard for the court to rule against us in the DOMA case. In a way, it’s not about marriage. It’s about whether the federal government is entitled to treat equally situated people differently, and that would be a hard case for even Scalia to make (as much as he might want to). So I think Roberts will huddle with Kennedy, and they’ll find that DOMA is unconsitutional, and will also decide that the the Prop 8 case appelants don’t have standing. This will allow the Prop 8 ruling to stand, but the Supremes will not have to rule on the actual merits of a gay marriage case. Roberts’ historical reputation will remain unvarnished.

  46. jasper says:

    I don’t think a knot will be necessary, assuming that Roberts or one of the other ‘Conservative’ judges rule in favour of gay marriage.

    They could root their reasoning in libertarianism.
    The state should not dictate who can and cannot marry.

  47. michtom says:

    Lest we forget, Scalia wrote the dissent that defended creationism in Edwards v. Aguillard. He is not a strict constructionist. He is a reactionary slime ball (and I don’t mean that in a good way).

  48. NCMan says:

    When is someone going to write a post addressing what the reasons are that the Supremes (in both the Prop 8 and DOMA cases) have said they want arguments about the issue of “standing”?

    If they weren’t worried about the legitimacy of these cases even getting as far as they have in this process, why would they ask for arguments about standing?

    Has anyone read analysis about what the chances are that either one or both cases are just bounced for lack of standing?

  49. JefferyK says:

    I’ve seen legal experts predict that the Supreme Court will kill Section 3 of DOMA and uphold Prop 8. Why? States rights. Nothing to do with gay rights. So, when you try to guess how each justice will vote, you might want to look at their states rights record, not their gay rights one.

  50. Naja pallida says:

    You’re probably right, but I think Roberts also doesn’t want to go down as the Chief Justice on the wrong side of history, so will reluctantly come around. Even if he has to tie himself into knots to justify it to the conservabigots in his decision.

  51. karmanot says:

    “Anyone seen Cheney lately?” I hear he’s plugged in like a toaster and leave the house very often.

  52. michtom says:

    Antonin Scalia and Clarence Thomas are vicious and ugly. Roberts is a corporate front man. Not quite the same. It also explains his vote for Obamacare, which is a huge gift to the medico-industrial complex: 30 million new customers for their mediocre services.

    Don’t for a second be fooled into thinking that vote makes him a good guy in any way.

  53. FunMe says:

    The Supremes have truly brought down the court. Few have any respect of it. It is a joke!

  54. FunMe says:

    I detest Scalia. He is SCUM of the earth. Next 6 months will be nail biting, but imagine if Scalia would bet a heart attack? I’m sure he’ll get his karma eventually. Anyone seen cheney lately?

  55. FunMe says:

    Isn’t Roberts gay? Closeted of course.

    And, are any of his children really his as opposed to adopted?

  56. nicho says:

    Let’s all save out breath, time, bandwidth etc. The court will decide whatever it is the Corporatocracy wants it to decide. Look at Citizens United. There is no way anyone with a shred of legal training or integrity should have voted for that monstrosity. But here we are.

  57. S1AMER says:

    I believe I’ve read this before, some years ago. I wouldn’t put too much hope in any significance for Roberts’ supporting marriage equality next year. Lawyers do all sorts of pro bono work, but that’s an intellectual exercise (or duty, in some law firms) that does not necessarily indicate personal beliefs.

    My view is that Roberts is largely a blank slate. We have nothing substantive to indicate support for or opposition to marriage equality. We know Scalia regards us as lower than pond scum, and that Alito and Thomas are opponents as well. We just don’t know about Roberts, and can’t jump to any conclusions based on the fact that he’s conservative (so is Kennedy, on most matters), or Catholic (among the general public, a growing support group, but still hostile in many circles), or still in his 50s (a demographic less hostile that those in their 60s, but still more hostile than younger people). We do know that Roberts is an arch federalist, which might (or might not) argue for a federal government that leaves definitions of marriage up to the states (which would be an argument against DOMA Sect. 3, but might lead to support of Prop 8).

    I expect we’ll get clues come oral argument next Spring. But I’m largely bypassing speculation now and simply holding my breath until the end of June.

  58. Mighty says:

    This is not new. I remember this from his nomination. I still don’t trust this conservative court. They scare the hell out of me. Scalia is evil. He says he is an originalist and that since homosexuality isn’t in the constitution it doesn’t have rights. However corporations are not mentioned in the constitution either yet they seem to merit free speech rights. I do not trust conservative activist justices.

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