Tag Archives: marriage equality

Roberts and Romer

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I’m very intrigued by the news about Judge Roberts and Romer v. Evans. My initial cautious admiration had been turning into worriment in the last couple of weeks, with all the news about his cocky Reagan-era views, but this reassures me a bit. It doesn’t mean a whole lot – again, whom you represent or advise as a lawyer doesn’t necessarily say anything about your own views. But I can’t imagine that Antonin Scalia or Clarence Thomas would have volunteered, pro bono, to help out the gays.

On the other hand, the issue in Romer v. Evans was pretty egregious. It involved the following amendment to the Colorado constitution:

“Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”

In short, the amendment (which passed) legalized all types of discrimination against gays and lesbians – in employment, in housing, in whatever. Opposition to that amendment wouldn’t necessarily translate to sympathy for gay marriage or other gay-rights issues. As Arthur Leonard says in the linked article above, “There is certainly a difference between striking down laws that impose second-class citizenship on a class of people and supporting more affirmative rights for such people, and I don’t think a judge’s position on one necessary predicts his position on the other.” (It could be argued, of course, that same-sex marriage bans impose second-class citizenship on a class of people, but I know what he’s getting at.)

So like everything else that has been uncovered thus far, it doesn’t say much about Roberts other than that he’s not a Scalia or Thomas. Well, it also says he might not be a Rehnquist.

But also, Roberts, at age 50, would be the youngest member of the current Court by seven years. (Thomas is 57.) Scalia will be 70 next year. While age does not predict attitude, someone born in 1955 will have grown up in a different cultural context than someone born in 1936. Judge Roberts was 14 at the time of the Stonewall riots, for instance. Not that that necessarily means anything, but it’s something to keep in mind.

Anyway, this whole thing is intriguing. I guess we’ll see what it means.

Roberts and Gays

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For at least a year before the nomination of Judge John G. Roberts to the Supreme Court, the White House was working behind the scenes to shore up support for him among its social conservative allies, quietly reassuring them that he was a good bet for their side in cases about abortion, same-sex marriage and public support for religion.

Yeah, so that kind of worries me.

Granted, the only other part of the article that mentions gay rights is this:

Mr. Leo said he told wary social conservatives that even though Judge Roberts had not ruled on abortion or other issues his other opinions showed “a respect for the text and original meaning and a presumption of deference to the political branches of government.” …

Mr. Leo said such narrow and deferential rulings are “going to comport better” with the restrained role that social conservatives want judges to play on questions about abortion, gay rights or religious displays, which they believed should be left to elected officials rather than the Supreme Court, Mr. Leo said.

Granted, there’s nothing specific there that says Roberts would vote for or against gay rights. But I won’t kid myself; as impressed as I am by him, he’s still a Bush nominee. So I’ll continue to hope what I’ve already been hoping for a while: that no same-sex marriage case comes before the Court in the near future. Regardless of the Court’s composition, one of two things would happen: either it would find bans on same-sex marriage constitutional, or it would find them unconstitutional and thereby practically guarantee passage of a constitutional amendment outlawing same-sex marriage. This is just not a good time for the Supreme Court to be ruling on gay marriage, period.

There are, of course, other gay rights issues that could come before the Court.

Anyway, we knew after last fall’s election results that things didn’t look good. At this point, we just have to keep our fingers crossed.

Lewis v. Harris

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I didn’t even know this until today, but last week, the New Jersey Appellate Division issued a decision in Lewis v. Harris, the state’s same-sex marriage case. The Appellate Division, 2-1, affirmed the trial court’s ruling against same-sex marriage. (The decision includes a published dissent, which should be interesting reading.) This is not really a big deal, because everyone has known that the outcome ultimately depends on the New Jersey Supreme Court, which now gets the case. It’ll probably take at least a year to get through the state supreme court, after which I expect this liberal court to find same-sex marriage constitutional in the state. (It was the New Jersey Supreme Court that issued the pro-gay decision in the Boy Scouts case a few years ago, which of course got overturned by the U.S. Supreme Court.)

We shall see.

(Here’s a Lambda Legal press release on the decision.)