Sep 16, 2005   | COMMENTS     

Judge John G. Roberts Jr. disclosed for the first time this week that he believes the U.S. Constitution protects the right of privacy, but legal experts said his carefully guarded comments gave no indication of whether he feels the doctrine should include gay civil rights.

Roberts discussed his views on privacy rights and a wide range of other subjects during the second day of the Senate Judiciary Committee’s confirmation hearing on his nomination to the Supreme Court as the nation’s 17th Chief Justice.

The Supreme Court’s landmark 2003 case of Lawrence vs. Texas cited constitutional privacy right protections as the basis for overturning the 1986 case of Bowers vs. Hardwick, along with state sodomy laws that for years defined sexual relations among gays as criminal acts. Gay rights attorneys have said constitutional privacy rights are pivotal to future gay rights cases, including cases seeking to legalize same-sex marriage.

“Do you believe today that the right to privacy does exist in the Constitution?” asked Senator Arlen Specter (R-Pa.), chair of the Judiciary Committee, during the Sept. 13 session.

“Senator, I do,” Roberts said. “The right to privacy is protected under the Constitution in various ways.”

In discussing his understanding of privacy rights, Roberts pointed to the Constitution’s First, Third and Fourth Amendments, which are part of the Bill of Rights. Among other things, they protect citizens against improper searches and seizures by the government, protect against restrictions of freedom of speech and assembly, and prohibit the establishment of an official state religion.

Roberts added that in the past 80 years, the Supreme Court has recognized the concept of “personal privacy,” as protected under the Due Process Clause of the Fourteenth Amendment. The high court used this concept of privacy as the basis for its 1972 decision in Roe vs. Wade that legalized abortion, as well as its Lawrence decision overturning sodomy laws, considered to be the court’s most sweeping ruling on gay rights.

But Roberts did not reveal whether he personally supports the “personal privacy” doctrine as it applies to Roe vs. Wade.

New York Sen. Chuck Schumer (D) asked Roberts whether he agreed with Justice Clarence Thomas’ dissent in the Lawrence case, in which he refused even to recognize a general right to privacy. (see sidebar)

Roberts agreed with Schumer there was a “substantive right of privacy but would not say if he agreed with Thomas or with the holding in Lawrence, citing his general policy of not stating his views on specific cases.

Mixed reviews
Gay rights attorneys and legal observers, including senators on the Judiciary Committee, had differing views on the significance of Roberts’ views on privacy rights.

Lara Schwartz, an attorney and chief legislative counsel for the Human Rights Campaign, said the privacy rights associated with the First, Third and Fourth Amendments are universally accepted by conservatives as well as liberals. Schwartz said Robert’s cautiously worded comment on personal privacy linked to the 14th Amendment — which the Supreme Court cited in the Lawrence decision — did not indicate whether he supports such rights.

Schwartz’s made her comments before Schumer’s give and take with Roberts on the Lawrence case.

Arthur Spitzer, legal director of the American Civil Liberties Union of the D.C. area, echoed Schwartz’s view.

“No one has ever said the Constitution does not protect some privacy,” Spitzer said. “The question is whether the Supreme Court finds privacy rights elsewhere in the Constitution to protect against the government’s intrusion into sexual relations in your bedroom.”

Schumer told Roberts he was troubled that the Supreme Court nominee declined to state his views on a number of key issues, including whether he supports the Roe vs. Wade decision. But on Roberts’ comments about privacy rights, Schumer added, “I have to say I’ve been pleasantly surprised by some of your answers today.”

Added Schumer, “In my view, over the past 60 or 70 years, maybe longer, three legs have sustained our constitutional rights: the Fourteenth Amendment’s guarantees of equal protection and substantive due process, the right to privacy, and a broad delegation of authority to Congress to pass legislation … necessary to protect national security, the environment, Americans’ health, and workers’ civil rights. On the first two, you have given answers that I think show that you want to protect those rights.”

Prior to Tuesday’s hearing, public knowledge of Roberts’ views on privacy rights were limited to memos he wrote in the 1980s as an assistant attorney general in the Reagan administration. In those memos and other legal papers, he derided the concept of privacy rights and was highly critical of the ...