John Roberts, we hardly know thee

This is just fantastic -- fantastic and hilarious. John Roberts gave invaluable, if behind-the-scenes, assistance in Romer vs. Evans, one of the most significant legal victories for gays rights activists. The decision declared unconstitutional that part of the Colorado legal code that denied gay men and women civil rights protections.

That's the fantastic part. The hilarious part is how those social conservatives, who consider gays somehow less than people, are now fretting and fulminating about it. I don't know that President Bush or his advisors knew about Roberts' work on behalf of gay rights, but I wouldn't be entirely surprised if they did. There have always been some indications that the President was personally sympathetic to the plight of prejudice that homosexuals face; it has only been that his feelings on this matter took back-seat to his willingness to take the political advantage he could derive from gay-bashing. (This is speculation, of course: it is always dangerous to ignore actions in favor of inferring sentiments.) It is also amusing to see how conservative legal commentators try to minimize the importance of this work for our evaluation of Roberts. NRO Bench memos has a series of posts in reaction to this news. The general theme is "Don't worry, Roberts was just doing his job. He doesn't really think gay people deserve equal respect." Whew.

But there may be something to what they are saying and it goes to the same point I have been trying to make about Judge Roberts on this blog. There is certainly no reason to think that Roberts is a gay-rights advocate in any strong sense of the word. Rather, he conducts himself professionally in strict adherence to his balanced conception of what his job entails. As a lawyer, that involves him in pro bono work taken on by his firm. As a judge, it commits him to decide carefully and with integrity how precedent, the Constitution, and other legal concerns direct him to rule.

It is not that he is ideologically inclined to defend the rights of gays. It is that he is someone who will not let his ideological inclinations direct his decision on whether or not gays deserve constitutional rights. I would much rather have someone of the latter disposition serve on the Supreme Court than the former. (Admitting, however, that I think the legal case for full gay rights is ultimately a no-brainer.)