Friday, August 05, 2005

"Slowly I Turn, Step by Step..."

Well, what do we have here? I surely hope it's not a confirmation that Anne Coulter, of all people, was right all along.

"Court Nominee Advised Group on Gay Rights", says the New York Times

To paraphrase that classic sitcom I Love Lucy, Roberts, you 'ave some 'splainin to do! For instance, your Honor, why didn't you disclose this case to the Judiciary? Could this be the reason?
The 1996 case, Romer v. Evans, is considered a touchstone in the culture wars, and it produced what the gay rights movement considers its most significant legal victory. By a 6-to-3 vote, the Supreme Court struck down a provision of the Colorado Constitution that nullified existing civil rights protections for gay men and lesbians and also barred the passage of new antidiscrimination laws.

"It's one more piece of the puzzle as we keep trying to find out who John Roberts is," said Kevin Cathcart, executive director of Lambda Legal, the advocacy group that helped bring the Romer case. "Where does this fit in on his judicial philosophy and his view of the Constitution?"

Indeed, Judge Roberts's participation seems to stand in contrast to the picture that has emerged from his days as a young lawyer with the Reagan administration, when he advocated a more conservative approach to civil rights and voting rights.
Or was it because of this?
The lead plaintiffs' lawyer in the Romer case, Jean Dubofsky, said Thursday that she sought out Judge Roberts at the recommendation of Walter Dellinger, then a senior official in the Justice Department under President Bill Clinton. Ms. Dubofsky, a former justice of the Colorado Supreme Court, said she was specifically seeking a conservative who could provide her an insider's road map, of sorts, helping her to anticipate objections from some of the court's more conservative members, like Justice Antonin Scalia and Chief Justice William H. Rehnquist.

Judge Roberts, who once clerked for Justice Rehnquist and now serves on the United States Court of Appeals for the District of Columbia Circuit, spent about six hours on the case, Ms. Dubofsky said. "He told me, 'You have to know how to count and to get five votes, you're going to have to pick up the middle.' "

And then, she said, Judge Roberts provided explicit instructions on how to do just that, telling her that she would have to prove to the court it did not have to overturn a previous case, Bowers v. Hardwick, which upheld a ban on homosexual sodomy. He peppered her with questions in a moot court session.

"So when I was asked by Justice Scalia if they would have to overturn Bowers v. Hardwick to rule my way, I said no," Ms. Dubofsky said, adding, "In this particular case if you wanted to get the U.S. Supreme Court turned around on gay rights issues, you didn't have to win every gay rights case floating around out there."
What's troubling about his assistance to the plaintiff's legal team that argued for the Romer is that it indirectly assisted SCOTUS in continuing its march toward the Absolute Individualism that represents the heart of the Reasonable agenda. The irony of this situation is this: Roberts, who evidently believes in the Rule of Law and sound legal reasoning, contributed to the undermining of those very principles he holds dear.

Romer v. Evans continued SCOTUS' march toward Absolute Individualism by ensuring the Constitutional protection reign supreme for those that practice a flavor of the One Thing That Matters. Romer upheld the Colorado Supreme Court injunction against Ammendment two of the Colorado State's Constitution, which had been passed by voters in a referandum. The Majority Opinion, written by Anthony Kennedy, declared that ammendment unconstitutional. Note the following excerpts from the Majority Opinion:
In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by [ ROMER v. EVANS, ___ U.S. ___ (1996) , 9] enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not.
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.
In a scathing dissent written by Justice Antonin Scalia, Dissenters to the opinion find it incomprehensible that the Court has ruled unconstitutional a State Constitution's ammendment that prohibited a class of people from seeking special rights. Note some of his concerns:
Despite all of its hand-wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to [ ROMER v. EVANS, ___ U.S. ___ (1996) , 4] be true. See ante, at 9. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.
To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has of course been overruled by later cases. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U.S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief [ ROMER v. EVANS, ___ U.S. ___ (1996) , 15] for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal-protection lodestars - Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 1, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U.S. 3, 24 (1883), quoted ante, at 14. 3

This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the [ ROMER v. EVANS, ___ U.S. ___ (1996) , 16] Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U.S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 (1993). It remains to be explained how 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?


I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies . . . conventional [constitutional] inquiry," ante, at 10, and "confounds [the] normal process of judicial review," ante, at 11, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:

"[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our [ ROMER v. EVANS, ___ U.S. ___ (1996) , 17] civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Id., at 45.

I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.

But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than "`a bare . . . desire to harm a politically unpopular group,'" ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.)
Romer's cheerleaders have celebrated the decision as a victory for gay rights. However, it looks more like another usurpation of the people's right to settle issues of policy through the vote. The particular issues of prohibition from discrimination that the Majority raised included insurance premiums and beneficiary pay-outs for homosexuals. If Ammendment 2 prohibited these special privildges from homosexuals as well as from non-marital cohabitors--whether sexually involved or not--then it applied an equal standard of justice. For it applied the standard based on people choosing a particular behavior--the decision to live with someone else. The Court effectively decided that homosexuals represented a minority in the same way that members of other races are minorities. It then decided that, on the basis of their status as a minority, that they were, in fact, entitled to special privilidges as though they were the same benefits that other classes enjoyed by right. Antonin Scalia clearly saw through the Court's duplicitious reasoning. Now, we discover that Judge Roberts, who said he values "modesty" in ajudication, has participated, however indirectly, in a rather unmodest display of rank judicial activism.

Judge Roberts' contribution to the ultimately victorious plaintiffs in this case should give those that find his Catholicism an obstacle to his candidacy reason to pause. Prominent Catholics, as well as other Christians, had as recently as Independence Day 1997 signed A Statement of Christian Conscience and Citizenship. Signatories of the document include Archbishop Chaput of The Archdiocece of Denver, the late John Cardinal O'Connor of the Archdiocese of NY, Archbishop William Levada (current prefect of the Congregation for the Doctrine of the Faith), Michael Novak of AEI, Father Richard John Neuhas of the Institute on Religion and Public Life and the publisher of First Things, Professor Mary Ann Glendon of Harvard Law School (who led the Vatican's representatives to the UN International Woman's Conference in Bejing), George Weigel of EPPC, James Dobson (President of FOTF), Mr. Donald P. Hodel (President, CC) and many, many more. Their declaration cites the negative influence of Romer v. Evans:
In Romer v. Evans (1996), thousands of years of moral teaching regarding the right ordering of human sexuality was cavalierly dismissed as an irrational "animus." It is exceedingly hard to avoid the conclusion that the Court is declaring that laws or policies informed by religion or religiously based morality are unconstitutional for that reason alone.
While not a magisterial pronouncement, the strong view of so many orthodox Catholics and Christians certainly contrasts Judge Roberts' support of the plaintiff's legal team in Romer. If he's willing to support legal efforts that contradict Catholic doctrine such as Romer, he's less likely to see other conflicts between his Faith and his practice as a Justice of SCOTUS.

His part in this controversial Supreme Court decision also leaves his conservative supporters with a very disconcerting question. Will Judge Roberts become another Reinquist, or another Souter? Before today's revelations, I think many would have said the former. Now, they may wonder if he's the latter.

If the Reasonable MSM--and perhaps their Democratic allies--were looking for a wedge to divide Conservatives on Roberts, they found it. However, for a change, they didn't do anything wrong. Roberts himself should have come clean with this from the beginning. Now, he needs to reassure conservatives and traditionalists that he will still be the Justice they hope he'll be. I hope he can do it; I hope, in fact, he still is that Justice. Our society needs a Justice that respects the Rule of Law and the appropriate interpretation of the Constitution. Otherwise, we all lose the society that has nourished us since our birth. What then?