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Judging Mr. Roberts: Supreme Court nominee John Roberts helped overturn an antigay law in Colorado but also may oppose the privacy argument that erased the nation's sodomy laws. Should he be opposed? Activists are divided.

For gay men and lesbians, John Roberts is shaping up to be one of the most perplexing Supreme Court nominees in decades. On one hand, the baby-faced 50-year-old is praised by antigay conservatives who cite his work in the Reagan and first Bush administrations against Roe v. Wade. That case hinged on the same privacy rights that underlie Lawrence v. Texas, which struck down sodomy laws across the United States.

On the other hand, Roberts did pro bono work helping prep the pro-gay civil rights attorneys who won the landmark 1996 Supreme Court decision overturning Colorado's Amendment 2, a 1992 ballot measure that prohibited any state or local law protecting gays from discrimination. In the 6-3 Romer v. Evans decision the Supreme Court said that singling out a class of persons for exclusion from such basic safeguards violated the Constitution's equal protection clause.

"There was no reason John Roberts had to help [in Romer]," says Jean Dubofsky, a former Colorado supreme court justice and lead attorney in the case. "I thought it was ironic that the White House had lined up all these groups like Focus on the Family without understanding that Roberts might be a little more broad-minded."

Dubofsky adds, "I don't know how he would [have] voted on Amendment 2, but that doesn't mean I think he comes from the same place that Focus on the Family or those groups come from. He is much too thoughtful and well-educated." She cautions against deeming Roberts a liberal, however. She guesses he might be a "Rohnquist" on the bench--voting on the conservative side but not swinging as far right as Justice Antonin Scalia.

Roberts's confirmation hearings before the U.S. Senate are set to begin September 6. Gay rights groups have teamed with other progressive organizations in Washington to pressure senators to ask Roberts about a range of issues, including the constitutional basis for equal protection of gay Americans. The revelation of his work on Romer--which came to national attention in early August, two weeks after his nomination by President Bush to replace retiring justice Sandra Day O'Connor has not eased their fears of a judge praised by the nation's top antigay activists.

"It's a simplistic view that you are either a bigot or you're not," says Matt Foreman, executive director of the National Gay and Lesbian Task Force. "You don't have to be rabid to be extremely dangerous." Joe Solmonese, president of the Human Rights Campaign, cautions that Roberts's public comments about his work as deputy solicitor general under George H.W. Bush to overturn Roe v. Wade's establishment of abortion rights should apply equally to his work on Romer: "He says his work on behalf of a client should in no way be instructive of his views on an issue." Because of Roberts's past as a crusader against choice, the National Organization for Women, the National Abortion Federation, and the Feminist Majority all oppose his confirmation.

So now does a group calling itself the Public Advocate of the United States, a rabidly antigay organization that cited Roberts's "support for the radical homosexual lobby" in a news release demanding that Bush withdraw his nomination.

Other conservative groups still stand behind Roberts, including the Traditional Values Coalition and Focus on the Family's political arm. Tony Perkins of the Family Research Council said his first thought on hearing about Roberts's Romer work was of "aiding and abetting," but in a statement he urged "caution" about rejecting the nominee.

"The less reaction we see from the Right, the more I'm going to be concerned," says Kevin Cathcart, executive director of Lambda Legal. "This points to the need to find out more about his philosophy. I'm sure that this will be a piece of information that will be explored in the hearings process. This shows the need for vigorous hearings."

Wildman is The Advocate's Washington correspondent. The Associated Press contributed to this article.
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Author:Wildman, Sarah
Publication:The Advocate (The national gay & lesbian newsmagazine)
Geographic Code:1USA
Date:Sep 13, 2005
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