"'Let the jury consider their verdict,' the King said, for about the twentieth time that day. 'No, no!' said the Queen. 'Sentence first-verdict afterwards.'"
This famous little passage, from the trial of the Knave in Lewis Carroll's Alice's Adventures in Wonderland, could have been written to describe the attitude some national gay groups have taken to the nomination of John Roberts to the Supreme Court. Not yet having heard the most pertinent evidence-what the nominee himself has to say about his judicial philosophy-they have already handed down their sentence: they oppose him. This prejudgment is unfair and won't endear us to a man who may sit on the Court for more than a generation to come.
Let's be crystal clear: we know almost nothing about Roberts as a judge. He hasn't been on the bench long and he's decided few cases of any import, and in each of those was bound by Supreme Court precedent. Here's a short run-down on some important gay-related questions to which we do not know the answers:
- Does Roberts believe there is a constitutional
right to privacy? If so, what would be his methodology in deciding
whether a particular activity fell within the protection of this
right? The answers to these questions would give some
indication whether he thinks the Supreme Court was right to strike
down state sodomy laws in Lawrence v. Texas two years
ago.
- Does he believe Congress has the constitutional
power to enact civil-rights laws that forbid private
discrimination? The answer to this question would
help us determine whether he thinks a federal law banning anti-gay
job discrimination would be constitutional.
- Does he believe Congress has the constitutional
power to strip the federal courts of all jurisdiction to decide
particular issues? The answer to this question would
tell us whether he thinks Congress could forbid federal courts even
to hear gay-marriage cases or other claims.
- Does he think a state may forevermore strip a
single group of all civil-rights protections? The
answer to this question would suggest whether he thinks the Court
correctly decided Romer v. Evans , which struck down a
Colorado state constitutional amendment doing same to
homosexuals.
- When, if ever, does he think the Court should adhere to a decision that he believes was wrongly decided? The answer to this question would indicate whether he would actually vote to reverse Lawrence or Romer, even if he thought they were erroneous.
Senate hearings on the Roberts nomination will begin September 6. Then Senators will have the chance to ask these questions and more. We should listen closely to the nominee's answers. If he refuses to answer we're free to draw negative inferences from his silence.
Since so much is unknown at this point, however, why have four prominent gay groups-including PFLAG and HRC-rushed to oppose him? There's an official answer to this question and an unofficial one.
The official answer, recounted in a joint statement issued by the groups, is that Roberts wrote several memos as a young lawyer in the Justice Department 20 years ago that, interpreted in the most negative possible light, support the assumption that he might be an "anti-gay" justice.
Nothing in Roberts' public record of more than 25 years as a lawyer, judge, and commentator expresses an opinion on whether any gay-rights precedent should be overruled. Roberts has said nothing about how the Court should decide any gay civil-rights claim. He has said nothing about the constitutionality of sodomy laws, employment-protection laws, hate-crimes laws, etc. At most, some passages in some old memos seem skeptical about a constitutional doctrine, the right to privacy, that eventually provided a basis for Lawrence.
Even if Roberts' presumed skepticism about the right to privacy continues to this day-something we also do not know-being skeptical about a doctrine and being willing to discard it are two very different things. If past skepticism about the vague "right to privacy" disqualifies Roberts from service on the Court, then quite a few liberal law professors must also be disqualified.
Moreover, while we're reading tea leaves, a better and more recent indicator of Roberts' attitudes toward gay-rights claims is his volunteer work for gay advocates in 1996 in Romer. The leading gay-rights lawyer in the case says Roberts' brief help was crucial.
This pro-gay volunteer work by Roberts tells us two things. First, he's not personally anti-gay. Second, at least in an extreme case, Roberts will listen with an open mind to gay-equality claims. Whatever Roberts said 20 years ago, the trajectory of his career appears good for us.
What credit does this prominent conservative get for helping gays? Gay groups completely discount it and then summarily oppose him. (Gay groups, that is, except the national gay group that specializes in legal issues: Lambda Legal has notably withheld judgment until Roberts' hearing.) Imagine the reaction if Roberts had worked for the anti-gay side in the case!
The unofficial reason for gay groups' opposition has nothing to do with Roberts' record on gay rights and everything to do with the politics of abortion and progressive "coalition building." The left has decided to oppose anyone President Bush names to the Court, mostly to protect abortion rights. Gay groups are dutifully tagging along. It is as unseemly and unjust as the mad Queen's insistence on executing the prisoner before hearing the evidence. Only it's not funny.