Aug 05, 2005  |  By: LOU CHIBBARO JR. and EARTHA JANE MELZE | COMMENTS     

constitution, bears ample witness to the dangers of this doctrine,” Roberts wrote in the draft article, according to the Post.

Roberts added a quote to the draft from a dissenting opinion by former Supreme Court Justice Hugo Black in a 1965 decision, in which Black criticized the majority on the court for overturning a Connecticut law banning the use of contraceptives, the Post reported. The majority opinion overturning the law used “a loose, flexible, uncontrolled standard for holding laws unconstitutional,” Roberts approvingly quoted Black as saying.

The newly emerging information on Roberts’ judicial views is being analyzed by gay rights attorneys, who have expressed concern about Roberts’ possible handling of a number of gay rights cases that could come before the Supreme Court in the next several years.

If confirmed by the Senate in the fall, a gay-related military case would be one of the first cases Roberts is likely to consider as a new Supreme Court justice. The case, Fair vs. Rumsfeld, came to the high court when the Bush administration appealed a ruling last year by the Third Circuit Court of Appeals overturning the Solomon Amendment, a federal law calling for cutting off federal funds to universities that deny military recruiters access to campus facilities.

In the 1990s, a number of the nation’s elite universities barred military recruiters from their campuses on grounds that their presence would violate university policies of shunning employers that engage in discrimination, including sexual orientation discrimination.

The universities cited the military’s “Don’t Ask, Don’t Tell” policy of prohibiting gays from serving in the military unless they conceal their sexual orientation as the reason for their bans on military recruiters.

The universities backed down from this practice following Congress’ approval of the Solomon Amendment, out of fear that they would lose millions of dollars in federal funds. A consortium of universities challenged the constitutionality of the Solomon Amendment in a joint lawsuit in federal court. The Third Circuit’s decision to overturn the law is considered an important victory for gay activists, who hope to eventually overturn the “Don’t Ask, Don’t Tell” policy through litigation.

Challenges to “Don’t Ask, Don’t Tell” are among the next set of gay-related cases that could come before the Supreme Court in the near future. At least two lawsuits seeking to overturn the policy are pending, one filed by the Servicemembers Legal Defense Network in the First Circuit Court of Appeals and another by the national gay group Log Cabin Republicans in the Ninth Circuit Court of Appeals. The Ninth Circuit has already rejected a previous challenge to the “Don’t Ask, Don’t Tell” policy.

If the appeals courts overturn the policy, the Bush administration is expected to file an immediate appeal to the Supreme Court.

Roberts to enforce ‘settled law’
Some activists predict a challenge to one or more state laws banni