Roberts' confirmation
hinges on
protecting gay rights
By Deb Price,
detnews.com from the Web, August 29, 2005
We have elections. What do we
need courts for anyway?
Well, as Supreme Court Justice Hugo Black wisely explained in a 1940 ruling that
overturned the convictions of several black men who had been coerced into false
confessions, our courts are supposed to safeguard the constitutional rights of
all minority groups from the overheated passions and prejudices of the majority.
"Under our constitutional system, courts stand against any winds that blow as
havens of refuge for those who might otherwise suffer because they are helpless,
weak, outnumbered or because they are nonconforming victims of prejudice and
public excitement."
Now, as the Senate Judiciary Committee prepares to hold September hearings on
whether to confirm President Bush nominee John Roberts to the nation's highest
court, its 18 members should keep in mind the special, protective role courts
are supposed to play in our democracy.
The U.S. Constitution assigns the Senate the task of determining whether a
president's choice is worthy to serve on the Supreme Court. Senators would be
hard-pressed to find a better gauge of Roberts' fitness than whether he shares
Black's vision of the judiciary as a safe haven for the oppressed.
Roberts' answer is certainly more important than how many degrees he holds, how
many presidents he's assisted, how many court cases he's won or how many friends
vouch for him.
The Senate last confirmed someone to the Supreme Court 11 years ago. Since
then, the court has taken great strides toward living up to its role as
protector of those of us who are "nonconforming victims of prejudice" because
we're gay.
First, in 1996 in Romer v. Evans, the court struck down Colorado's
attempt to make it harder for gay people than for anyone else to get government
officials' help. Then in 2003, in Lawrence v. Texas, the court
erased state laws that criminalized gay sex.
In both 6-3 rulings, Justice Sandra Day O'Connor embraced treating gay Americans
equally. Would Roberts have voted the same way? Would he be
committed, despite the anti-gay winds blowing across much of the nation, to
ensuring that the court continues down the road toward fully recognizing gay
folks' rights?
The Judiciary Committee ought to press him for guarantees that he'd be
responsive to gay Americans' needs. Yet the unfortunate reality is that
the panel's 10 Republicans favor giving a green light to a constitutional
amendment to ban same-sex marriage. All eight of the panel's Democrats
voted against such a ban. At least one, Edward Kennedy, whose home state
of Massachusetts has wed more than 6,100 gay couples, embraces gay marriage.
Would Roberts be an O'Connor or add a fourth vote to the anti-gay trio of
William Rehnquist, Antonin Scalia and Clarence Thomas? Roberts' paper
trail gives pessimists plenty to fear.
Among its red flags is a memo in which he referred to the "so-called right to
privacy" as if it doesn't exist. Dating from a groundbreaking 1965 Supreme
Court decision, the privacy doctrine protects such things as a married couple's
use of contraceptives, a woman's right to terminate an unwanted pregnancy and a
gay couple's right to sexual intimacy.
Optimists can point to a potentially more positive aspect of Roberts'
background: A veteran Supreme Court litigator, Roberts prepped the
gay-rights attorney who won the landmark Romer decision in 1996.
Roberts' confirmation ought to hinge on whether he wants courts to protect the
downtrodden regardless of the shifting winds of public opinion.
You can reach Deb Price at (202) 906-8205 or
dprice@detnews.com.
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