As private lawyer, Roberts represented gay rights activists

He helped obtain ruling barring bias based on sexual orientation

August 04, 2005|By Richard A. Serrano | Richard A. Serrano,LOS ANGELES TIMES

WASHINGTON - Supreme Court nominee John G. Roberts Jr. worked behind the scenes for a coalition of gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation.

Then a private lawyer in Washington specializing in appellate work, Roberts helped represent the gay activists as part of his pro bono work at his law firm. He did not write the legal briefs or argue the case before the high court; he was instrumental in reviewing the filings and preparing oral arguments, several lawyers intimately involved in the case said.

The gay coalition won 6-3 in what activists described at the time as the movement's most important legal victory. The three dissenters were the justices to whom Roberts is frequently likened for their conservative ideology: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

His role on behalf of the gay activists, whose cause is anathema to many conservatives, appears to illustrate the conservative Roberts' allegiance to the credo of the legal profession: to zealously represent the interests of the client.

There is no other record of Roberts' being involved in gay rights cases that would suggest his position on such issues. He has stressed, however, that a client's views are not necessarily shared by the lawyer who argues on the client's behalf.

The lawyer who asked for his 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," Smith said.

Roberts did not mention his work on the gay rights case in his 67-page answers to a questionnaire for the Senate Judiciary Committee on Tuesday. The committee was asking for "specific instances" in which he performed pro bono work, how he fulfilled those responsibilities and the amount of time he devoted to them.

Smith, who also worked on the case, said yesterday that was probably an oversight because Roberts was not the chief litigant in Romer v. Evans, which struck down a Colorado initiative, approved by voters, that would have allowed employers and landlords to exclude gays from jobs and housing.

"John probably didn't recall it because he didn't play as large a role in it as he did in others," Smith said.

Jean Dubofsky, the lead attorney on the case and a former member of the Colorado Supreme Court, said she went to Washington to prepare for the Supreme Court presentation here and was immediately referred to Roberts.

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," she said. "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 Roberts helped her form the argument that the initiative, approved in 1992, was illegal because it 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.

Gay rights activists across the country cheered the decision. Suzanne B. Goldberg, a staff attorney 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."

Scalia, in a blistering dissent joined by Rehnquist and Thomas, said that "Coloradans are entitled to be hostile toward homosexual conduct."

Scalia said the majority opinion had "no foundation in American constitutional law and barely pretends to."

The Los Angeles Times is a Tribune Publishing newsaper.

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