Jul 29, 2005  |  By: LOU CHIBBARO JR. and EARTHA JANE MELZE | COMMENTS     

Supreme Court nominee John G. Roberts Jr. provided significant help to gay activists in a 1996 landmark Supreme Court case protecting gays from discrimination based upon their sexual orientation, the Los Angeles Times reported Thursday.

At the time, Roberts was a lawyer specializing in appellate work for Hogan & Hartson, a large D.C.-based law firm. Walter A. Smith Jr., then head of the pro bono department of the firm, told the paper that Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

Roberts did not write the legal briefs or argue the case before the Supreme Court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case, reported the Los Angeles Times.

Jean Dubofsky, the lead lawyer for the gay rights activists in the case that Roberts assisted, Romer vs. Evans, told the Los Angeles Times that Roberts gave her advice in two areas that were "absolutely critical."

"He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case," Dubofsky said.

In that decision, the court overturned a Colorado law that banned cities and towns within the state form adopting ordinances banning discrimination against gays in employment, housing and other areas.

Art Leonard, an openly gay law professor at New York Law School and frequent commentator on gay legal issues, told this publication, "… I think it is possible for a political conservative such as Roberts to have deemed it worth his time to help prepare the argument in Romer because the concept of Amendment 2 was offensive to him on general grounds.

"There is certainly a difference between striking down laws that impose second-class citizenship on a class of people and supporting more affirmative rights for such people, and I don't think a judge's position on one necessary predicts his position on the other.…"

Leonard said, "To sum up, I find today's news report comforting to the extent it indicates that Roberts is not reflexively anti-gay and probably holds views on gay issues more like those of Justice Kennedy than Chief Justice Rehnquist."

Gay advocacy groups seem unimpressed

Most of the nation’s national gay advocacy groups continue to remain in lockstep with other civil rights organizations this week by not taking a position on whether the Senate should confirm President Bush’s nomination of Judge John G. Roberts Jr. to the U.S. Supreme Court.

Similar to their non-gay counterparts, the Human Rights Campaign, the National Gay & Lesbian Task Force, Lambda Legal Defense & Education Fund and other gay groups called for a thorough and complete investigation by the Senate Judiciary Committee into Roberts’ record and judicial philosophy.

“We are pouring over the record, and we want the Senate to do the same thing,” said HRC spokesperson Steven Fisher. “We have no position now on whether he should be confirmed, but we have a great concern that he could be another Scalia or Thomas.”

Fisher was referring to Supreme Court Justices Antonin Scalia and Clearance Thomas, who have voted consistently on the court against rulings favorable to gay civil rights cases, including the landmark 2003 case Lawrence v. Texas, in which the high court overturned state sodomy laws by a 6-3 vote.

In his brief tenure on the U.S. Court of Appeals for the District of Columbia since 2003, and during his 22-year career as a lawyer and legal adviser for two Republican presidents, Roberts has no known record on gay civil rights or AIDS-related discrimination, except for his assistance in Romer vs. Evans.

But gay rights attorneys have expressed strong concerns that his conservative positions on the issues of abortion rights and separation of church and state during his tenure as deputy solicitor general for President George H.W. Bush in the early 1990s could be a predictor of his judicial positions on gay rights.

The revelation of Roberts' assistance to gays in Romer vs. Evan has not generated any new enthusiasm among gay advocacy groups, at least not publicly.

Matt Foreman, the executive director of the Task Force told this publication, "All that that shows is that he is a good lawyer, it has nothing to do with his conservative ideology."

Kevin Cathcart, the executive director of Lambda Legal, a gay legal advocacy group, stated in a news release Thursday, "Lawyers in firms are often ...