Pro Bono

Roberts Donated Help to Gay Rights Case

We all know John Roberts is a lawyer's lawyer--he can argue any side of any case. But this still has to be considered good news.

he lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said 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."

The case involved, Romer v. Evans, was one of the critical gay rights cases of the last two decades, overturning a voter-approved constitutional amendment in Colorado that had made it illegal to pass laws banning discrimination against gays and lesbians.

Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.

"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn't been very receptive to gay rights."

She said he gave her advice in two areas that were "absolutely crucial."

"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.

She said Roberts served on a moot court panel as she prepared for oral arguments, with Roberts taking the role of a Scalia-like justice to pepper her with tough questions.

When Dubofsky appeared before the justices, Scalia did indeed demand specific legal citations from the lower-court ruling. "I had it right there at my fingertips," she said.

"John Roberts … was just terrifically helpful in meeting with me and spending some time on the issue," she said. "He seemed to be very fair-minded and very astute."

Dubofsky said Roberts helped her form the argument that the initiative violated the "equal protections" clause of the Constitution.

The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Suzanne B. Goldberg, a staff lawyer for New York-based Lambda, a legal services group for gays and lesbians, called it the "single most important positive ruling in the history of the gay rights movement."

In the blistering dissent, Scalia, joined by Rehnquist and Thomas, said "Coloradans are entitled to be hostile toward homosexual conduct." Scalia added that the majority opinion had "no foundation in American constitutional law, and barely pretends to."

The challenge now, of course, will be for Roberts to resist the siren song of Scalia. Perhaps theory number three from below will apply? Or maybe mean old Nino will just scare Johnny boy away...

I'd like to know, by the way, where in the Constitution it says that Coloradans are "entitled to be hostile toward homosexual conduct." As far as I can tell, such an opinion has no foundation in American constitutional law, and barely pretends to.