Lambda Legal Liberty Circle Teleconference

MODERATOR: The format of today’s program* is that Lambda Legal’s Executive Director Kevin Cathcart will offer a few remarks about Lambda Legal’s decision to oppose the confirmation of John Roberts as the 17th Chief Justice to the U.S. Supreme Court. A question-and-answer forum with Kevin and Legal Director Jon Davidson will follow.

Participants have been invited to submit questions and comments in advance, and many of you already have. In addition, we invite you to submit questions by email during Kevin and Jon’s presentation. We have edited some questions for length and to avoid overlap. I will read as many of your questions as possible during our allotted time. Kevin and Jon will offer their thoughts in response. With that, allow me to introduce Lambda Legal’s Executive Director, Kevin Cathcart.

KEVIN CATHCART, EXECUTIVE DIRECTOR, LAMBDA LEGAL: Thank you. I want to thank all of you on the phone for taking time out of your day to call in and hear from us on this critically important question and also thank you for the support that you give to Lambda Legal. Your support makes our work in the courts, about the courts and in the court of public opinion possible. We wouldn’t be able to do this work without it.

As you know, after the Senate Judiciary Committee hearings ended late last week, Lambda Legal decided that we had to oppose John Roberts’s nomination as Chief Justice of the U.S. Supreme Court. We have written to all members of the U.S. Senate urging a no vote in committee and if necessary in the entire Senate.

This is not a decision we came to lightly and I am very proud of the process that we followed. I want to lay that out for you, give you an overview of our reasoning. Jon Davidson, our Legal Director, will be able to give a deeper legal analysis as we answer your questions about this.

When John Roberts was nominated to the Supreme Court, Lambda Legal announced that we would wait until after the Senate Judiciary Committee hearings to decide on our position, because his record as a judge is very limited, although a little of his record as a lawyer in more recent times has been released.

We felt the need for significantly more information than we had before us in order to make an informed decision on this important question. With the death of Chief Justice Rehnquist and Roberts’s subsequent nomination to that position, the stakes got even higher. Lambda Legal developed a list of 30 questions that we felt needed to be answered and we petitioned Senators to ask these questions.

We gave a lot of thought to the kinds of questions that we thought would be appropriate to ask Roberts — and to any candidate to the Supreme Court. A good number of our questions were asked. Fewer, however, were answered. Roberts is clearly an extremely smart and accomplished lawyer, but we believe in addition to intellect, legal training and experience, another critical measure of whether a nominee to the Supreme Court is qualified to serve is a clear commitment to fairness and equal rights for all Americans. At the end of the day, at the end of the hearings, we were left without comfort on this question.

Roberts refused to answer the questions, refused to clarify his judicial philosophy so that neither we, the United States Senate nor the American people could be confident where he stands. The United States Constitution gives the Senate the duty of advice and consent to Supreme Court nominees. For that duty to be carried out in a meaningful way, the Senate and the American people need information. It was Roberts’s choice whether or not to answer the questions. Unfortunately, in most cases he refused to do so. In not answering the questions, he declined the opportunity to affirm that all Americans have the same fundamental rights.

He also refused to affirm that LGBT people and those with HIV are an integral part of the fabric of America and that under the law we are entitled to equality and liberty. This raised serious questions for us whether under Roberts’s judicial philosophy the rule of law would fairly apply rather than the rule of those in power. This should be of grave concern to all Americans because if we cannot believe that the rule of law really means something, then the courts, our Constitution and our very democracy lose their meaning.

I want to be clear about one thing: We were not asking for an announcement of support for LGBT civil rights in the future or a pledge to vote our way when we take our cases to the Supreme Court — and I guarantee you we will take our cases to the Supreme Court. What we are looking for is a fair and independent judiciary, a fair and equal playing field for all of us at the Supreme Court. Roberts could have answered the questions that would have given us that needed information. He chose not to, leaving us no choice but to oppose his nomination.

MODERATOR: Thank you Kevin. Why don’t we get started with a question for Jon that came in about an hour ago from Durham, North Carolina:

Jon, if Roberts is confirmed as Chief Justice, what effects do you see coming in relation to same-sex parenting cases, especially the biological versus nonbiological custody disputes such as the Virginia-Vermont case now working its way through the courts?

JON DAVIDSON, LEGAL DIRECTOR, LAMBDA LEGAL: Well, one of the problems that we have with the responses that Roberts provided is that on many important questions he refused to give us much insight into his thinking. But, one of the things that has worried us is the extent to which he indicated prior decisions of the U.S. Supreme Court might still be open for reconsideration and that he refused to say how he would approach some of these issues in the future. Now, family law issues don’t get to the U.S. Supreme Court that frequently. Most family law issues are a matter of state law and are decided there. But there have been some very important Supreme Court cases dealing with constitutional rights as they apply to family law issues.

For example, the Troxel case considered whether grandparents could override the wishes of parents with respect to visitation with their grandchildren and raised important issues about how people who are not legally treated as parents might be treated under the Constitution — and in states in which same-sex couples are not both treated as a parent of a child. That could be very important to us. On that issue, Roberts refused to answer where he stood with respect to the application of rights of privacy beyond the traditional family. That was one of the things that caused us great concern. Unlike Justice Ruth Bader Ginsburg, who made clear when she was being confirmed that in a case called Moore v. City of East Cleveland, the right to not have the government interfere with who you chose to live with extended beyond the traditional family — in that case to a grandmother who was living with her grandchildren.

But Roberts said he couldn’t answer a question about whether the right of privacy would go that far. Notwithstanding the fact that he generally said that he would draw a kind of Ginsberg line and answer questions that sheêd answered [in her confirmation hearings]. His unwillingness to understand that rights of privacy should not be cut off at the nuclear family and that all families deserve to be protected under the Constitution gives us great concern for how he may rule in family law cases affecting our families in the future.

Similarly, he has in his prior work as a lawyer taken very strong views about states’ rights. In the Miller-Jenkins case that this question refers to, that has to do with the dispute between Vermont and Virginia with regard to a same-sex couple’s custody dispute.

We are relying very heavily on the federal antikidnapping law that applies in custody disputes. We are concerned that Roberts may feel that the federal government has no say in trying to resolve these interstate disputes, particularly when they apply to our families.

MODERATOR: Kevin, the next question is for you and comes from San Diego, California:

I keep on reading that it is a foregone conclusion that Roberts is going to be confirmed. Given that, why does it make sense to oppose him?

CATHCART: Well, that is a good question. I have heard variations of this question from a lot of people, and I guess there are a couple of things I want to say. One, as a civil rights lawyer and activist working in a civil rights organization, I don’t like foregone conclusions. I can remember when it was a foregone conclusion that the U.S. Supreme Court would never recognize civil rights for gay people. That was not a foregone conclusion that we liked, and we worked to turn that around. I think it is important that we don’t look at the Roberts nomination in a vacuum.

We have to remember that there are currently two vacancies at the Supreme Court. There could be more vacancies at the court over the course of the next couple of years. It is important to us to advocate consistently for someone with a commitment to fairness and equality and to say that those are key qualifications for any Supreme Court nominee particularly for the Chief Justice position. I think it is important that neither we as an organization or as a community — and the same is true for the United States Senate — fall into a trap of stealth candidates, which is if we don’t know enough about someone to know that they are terrible that somehow we take that to mean that they are okay.

I think the burden is on the candidate. That is why we asked the questions. That is why the Senate has hearings. If the candidate doesn’t meet that burden, that may not prove that they are a terrible person or a terrible candidate, but it means that they haven’t reached the bar that we have set in order to believe that they deserve nomination.

I also think that Lambda Legal, as a civil rights leadership organization in our community, has an obligation to let our community know what our analysis is, to try to engage people in this part of the political process, to get people to let their voices be heard by their senators — and I think that what happens with this nominee really does set a tone for future nominees. That is critically important. At the end of the day, if he is confirmed, everyone will tell me it was a foregone conclusion, and if he is not, no one will mention it again. But we feel it is important that we exercise our leadership right now with the information we have before us.

MODERATOR: Thank you Kevin. Jon, the next question is for you and it comes from Chicago, Illinois:

I thought it was really good news that Roberts said it was a right to privacy in the Constitution. Why didn’t Lambda Legal find that reassuring?

DAVIDSON: Well, we certainly were glad that he at least said that he found the right of privacy in the Constitution. Yet, his words in recognizing such a privacy right were almost identical to the words used by Justice Clarence Thomas at his confirmation hearing. Roberts explicitly noted that every member of the Court presumably including Justices Clarence Thomas and Antonin Scalia recognized such a right to some extent or another.

In response to follow-up questioning by the senators, Roberts declines to identify any differences between himself and Thomas on this subject. Since he wouldn’t say to what extent the Constitution protects personal privacy beyond the use of contraceptive devices, he gave us no reason to believe that he will act any differently from Scalia and Thomas when it comes to privacy with respect to sexual intimacy of adults, including lesbians and gay men in private, with respect to reproductive choice and with respect to other important issues to our community.

As you know, one of the things that made us most concerned is he said that he thought that the Supreme Court’s decision in the Griswold case that banned laws prohibiting the sale of contraceptives was something that was required under the Constitution. Yet, he refused to comment on Lawrence v. Texas, Lambda Legal’s victory at the U.S. Supreme Court, as to whether the right of sexual intimacy by consenting adults was also, in his view, protected under the Constitution. He couldn’t talk about that because it might come before the Court again. His feeling that that could come before the Court again but that laws prohibiting the sale of contraceptives couldn’t is disturbing to us because both of those decisions are precedents of the Court that have outlawed a whole body of laws. We are worried that he is kind of sending a signal that maybe he would entertain a case that sought to overturn Lawrence.

MODERATOR: Thank you, Jon. Kevin, the next question is for you and this one is from Dallas, Texas:

What do you think about the fact that HRC, the Task Force and other gay groups came out and opposed Roberts without waiting to hear what he had to say at his confirmation hearing?

CATHCART: I think every organization has to do what it thinks makes sense politically and strategically. I think the burden on Lambda Legal was to craft an approach that made sense for us. As the community’s most prominent impact-litigation organization, and as an organization that appears regularly before the Court, we wanted to use our legal expertise to come up with a process that we thought was fair, to come up with the tough questions that we hoped the nominee would answer.

Also because we spent so much of our time advocating for a fair hearing for our clients it would have seemed very odd for us to take a position before this process went through, before he had a chance to answer the questions. So every organization has a different role to play. We respect the decisions that other groups made. But as I said in my opening, I am very proud of the process that we followed because our goal was to try to get more information and to make our decision before any of the Senate votes, while the whole issue is still in play but with the most possible information.

MODERATOR: Thank you, Kevin. Jon, the next question is for you and it comes from New Haven, Connecticut:

I looked at your 30 questions and see that several of them relate to Roe v. Wade. Why is Lambda Legal focusing on abortion?

DAVIDSON: Well, for at least a century, reproductive freedom and LGBT rights have been inextricably linked both legally and politically. The ties between these rights are so strong that we really believe that a threat to one directly and profoundly impacts the other. That is true historically.

In the early 1900s, feminist pioneers like Margaret Sanger and Emma Goldman set out to convince the public that sexual freedom and the ability to control one’s reproductive destiny were intimately connected and beyond that that both were essential to individual liberty. If you look at the history of the development of the doctrine of privacy and of liberty under our Constitution that ultimately led to our victory in Lawrence v. Texas. It is a development of thinking about individual freedom about what you do with your body that was the foundation for the finding of the right to engage in sexual intimacy in private without government interference in Lawrence.

Lawrence itself relied on almost three decades of reproductive rights cases from Griswold v. Connecticut through Roe v. Wade and most importantly in the Casey decision that reaffirmed Roe v. Wade. Lawrence quoted at great length from Casey’s discussion of when the right of liberty exists in order to reverse Bowers v. Hardwick. So a judge’s position on the right of reproductive freedom tells us a lot about where that judge may ultimately rule on issues related to our liberty to be free from inappropriate government attempts to control our sexual intimacy.

MODERATOR: Thank you, Jon. The next question comes from Seattle, Washington, and Kevin this is for you:

Do you think Lambda Legal’s work on judicial nominations is having an impact?

CATHCART: Absolutely. I think it is quite clear that it is. Many of our 30 questions were asked at Roberts’s confirmation hearing. That wouldn’t have happened if we hadn’t prepared them. That also wouldn’t have happened if we hadn’t been able to get the senators’ offices to take our work in the courts seriously and to use these questions as building blocks for the work that they had to do at the hearings.

I also think what is important is that this is the first time in a Supreme Court nomination process that direct questions about LGBT civil rights were asked. Our issues were part of the discussion and this is at the Senate judiciary level. That is a very important thing. Things like that do not just happen. They happen because of the work that Lambda Legal and other organizations have done before the courts.

They happen because of things like the victory in Lawrence v. Texas. I also think that we are having an impact in the coalition work that we do with other civil rights groups around this and other judicial nominations. Again, we’re making sure that LGBT- and HIV-related issues are on the table for a broad range of people, because we are never going to win these battles just as gay people alone.

We are only going to win them if we can work in coalitions. So I do think an impact is being made. We also mobilized thousands of our members to contact their senators and ask them to ask the questions, and we got good feedback from a number of people who we work with on the Hill about how our questions were received in Senate offices. So, I see a lot of positive things that have come out of this process already.

MODERATOR: Thank you, Kevin. Jon, the next question is for you and it is from Miami, Florida:

Realistically, is there any chance that the Supreme Court could reconsider Lawrence v. Texas or are we through with sodomy laws once and for all?

DAVIDSON: Our victory in Lawrence luckily was by a six to three margin. We had five Justices who agreed with us that any criminalization of private adult consensual sex violated the constitutional right of liberty. Justice Sandra Day O’Connor wrote a concurring opinion finding that at least laws that only criminalized same-sex sexual intimacy but not different-sex sexual intimacy violated the right of equal protection.

Since Roberts, if confirmed, would be replacing Chief Justice Rehnquist who had dissented or joined Scalia’s dissent in the Lawrence case, we don’t think that this particular nomination will swing the votes on Lawrence v. Texas and the ultimate outcome there. But, I think there are a couple of things that people need to realize. First of all, there is another nomination waiting to be made to replace O’Connor, and that could bring us from six to three to five to four, assuming that Roberts agreed with Rehnquist’s position. But the other thing is that Roberts is a young man. He is 50 years old. He may be on the Court of decades. The composition of the Court may well change.

As Chief Justice, he would have a particularly important role of getting to decide who writes majority opinions and of providing leadership within the Court. I think people have seen that he is erudite, and he is very well educated, and he is genial. He may have the ability to convince other Justices on the Supreme Court to change their mind on a particular position. So, I don’t think we are going to see an immediate reconsideration of the victory in Lawrence, but I don’t think any of the decisions that we relied on in the Supreme Court are safe at the moment, in terms of long term, where the Court may go.

MODERATOR: Thank you, Jon. The next question is from New York City:

Kevin, what is your prediction in terms of Bush’s next nominee to the Supreme Court? What can we realistically hope for?

CATHCART: Well, let me start by saying I have no inside information about the President’s next nominee to the Supreme Court. I think the best we can hope for is a moderate conservative like O’Connor. I have to recognize though and admit that these are not the kind of people that this President has been nominating to the federal courts. It is possible right now that issues about his weakened political standing will convince him to nominate someone more moderate in the hopes of avoiding a bruising battle in the Senate. I am not holding my breath about that.

I actually think that the process around the Roberts nomination is probably the single greatest factor affecting future nominees because as I said earlier, there is this question of whether you can get away with stealth nominees. There is the question of whether the Senate is going to really take its role of advice and consent seriously, and I think that the more pressure that can be brought to bear right now on the Roberts nomination the better the likelihood that we will see what we would consider at least reasonable people being nominated in the future. If we just let this one go by, it is not going to get better; it is going to get worse.

MODERATOR: Thank you. Next question is for Jon, and it is from Albuquerque, New Mexico:

If Roberts gets on the Court, what is it going to mean for the marriage issue when it gets up to the Supreme Court?

DAVIDSON: One of the things that Lambda Legal has been doing in the marriage equality work has been to not seek to have cases on marriage get to the U.S. Supreme Court too quickly. The cases that we currently have going on in New Jersey, New York, California and Washington State have all been brought in state courts under state constitutions.

So, we really don’t envision any of those cases going up to the U.S. Supreme Court. No doubt at some time there will be a case that will go up to the U.S. Supreme Court and Roberts’s responses and refusals to respond give us great concern on that issue as well. The marriage issue raises a number of Constitutional rights, rights of liberty and rights of equality based on sexual orientation and sex discrimination.

When it came to being asked any questions directly about sexual orientation, Roberts displayed a remarkable lack of knowledge. He was asked whether he believed Congress had the power under the Constitution to prohibit discrimination against lesbians and gays in employment and his response was, “I don’t know if Congress has taken that step yet.”

Now this is a very highly educated judge living in the District of Columbia who didn’t even know whether there is a federal law prohibiting sexual orientation discrimination in employment. That made us concerned. When addressing issues of sex discrimination, he had a hard time explaining why he had previously suggested that sexual orientation and sex discrimination should not or did not receive heightened scrutiny.

He said he meant strict scrutiny. For those listening who may be lawyers, that is a distinction that most constitutional lawyers would understand — those terms are not the same. So, he seems to again not be really within the mainstream understanding of a number of the issues that have an impact on marriage.

But ultimately, with respect to the liberty interest I described already, some of the restraints that he may apply seem to us to give an undue emphasis to figuring that out by looking towards history and tradition. Though history and tradition are certainly relevant to figuring out the scope of the right of privacy or liberty, we are concerned that he might do what a number of judges have done in states where the marriage arguments have not fared well and say, “Well, there has been a long history and tradition of excluding same-sex couples from marriage, and so that answers the question.”

It certainly doesn’t, but again Roberts gave us very little comfort that he would appreciate the arguments that are being made in the cases, the arguments that have led us to victory so far at the trial courts in Washington, California and New York. I think it makes us continue to feel like we have a lot of work to do before we will ultimately win before the U.S. Supreme Court on this issue. We will continue to raise those battles for now in state court and in the court of public opinion.

MODERATOR: Thank you, Jon. That is all the time we have for questions today. I want to thank you all for joining us, and thank you for your questions. Kevin will give a few closing remarks.

CATHCART: Again, I want to thank all of you for your interest and support, and especially, I want to thank Liberty Circle members who are on the call today. I guess, in closing, I want to encourage you, and in fact, I want to plead with you to make your voices heard on this important issue. Contact your Senators. Tell them what you think. Stay involved, not just with this appointment but with the next appointment process as well.

We will keep you informed as this nomination and other nominations go forward. I hope you will spread the word on the information that we give you to your friends, family, colleagues, neighbors and everyone you know because, as I said earlier, I don’t think anything is a foregone conclusion.

I think these are messages to the current Court and to future members of the Court, even throughout this process, and we have to be serious if we want to get our civil rights and the courts to continue to be the best avenue for LGBT people and our civil rights struggle in America today. That means we can’t sit out these battles. So please, please, please be involved. Use the resources that we send you in the e-alerts. Use the resources that are on our website. Thank you again for being with us and for asking your questions today.

* This Lambda Legal Liberty Circle Teleconference was recorded on September 20, 2005 at 1:30 p.m. EST.