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A decade ago, John Roberts played a valuable role helping attorneys overturn a Colorado referendum that would have allowed discrimination against gays — free assistance the Supreme Court nominee didn’t mention in a questionnaire he filled out for the Senate Judiciary Committee. The revelation didn’t appear to dent his popularity among conservative groups nor quell some of the opposition of liberal groups fearful he could help overturn landmark decisions such as Roe v. Wade, which guarantees a right to an abortion. An attorney who worked with Roberts cautioned against making guesses about his personal views based on his involvement in the Colorado case, which gay rights advocates consider one of their most important legal victories. “It may be that John and others didn’t see this case as a gay-rights case,” said Walter Smith, who was in charge of pro bono work at Roberts’ former Washington law firm, Hogan & Hartson. Smith said Roberts may instead have viewed the case as a broader question of whether the constitutional guarantee of equal protection prohibited singling out a particular group of people that wouldn’t be protected by an anti-discrimination law. “I don’t think this gives you any clear answers, but I think it’s a factor people can and should look at to figure out what this guy is made of and what kind of Supreme Court justice he would make,” Smith said. On Friday, Senate Judiciary Committee Republicans released two memos by Roberts when he was as an assistant counsel in the Reagan White House. In one, Roberts argued that President Reagan should not interfere in a Kentucky case involving the display of tributes to God in schools. In the other, Roberts writes that Reagan shouldn’t grant presidential pardons to bombers of abortion clinics. “The president unequivocally condemns such acts of violence,” he wrote in a draft reply to a lawmaker seeking Reagan’s position. “No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals.” Meanwhile, the Justice Department denied a request by Judiciary Committee Democrats for Roberts’ writings on 16 cases he handled when he was principal deputy solicitor general during President George H.W. Bush’s administration. The department also declined to provide the materials, other than those already publicly available, to The Associated Press and other organizations that sought them under the Freedom of Information Act. “We cannot provide to the committee documents disclosing the confidential legal advice and internal deliberations of the attorneys advising the solicitor general,” assistant Attorney General William E. Moschella wrote Friday to the eight committee Democrats. Sen. Patrick Leahy of Vermont, the panel’s senior Democrat, said Roberts made decisions whether to pursue legal appeals in more than 700 cases. “The decision to keep these documents under cover is disappointing,” Leahy said. The gay rights case involved Amendment 2, a constitutional amendment approved by Colorado voters in 1992 that would have barred laws, ordinances or regulations protecting gays from discrimination by landlords, employers or public agencies such as school districts. Gay rights groups sued, and the measure was declared unconstitutional in a 6-3 ruling by the U.S. Supreme Court in 1996. Roberts’ role in the case, disclosed this week by the Los Angeles Times, included helping develop a strategy and firing tough questions during a mock court session at Jean Dubofsky, a former Colorado Supreme Court justice who argued the case on behalf of the gay rights plaintiffs. Dubofsky, who did not return calls Friday, said Roberts helped develop the strategy that the law violated the equal protection clause in the Constitution — and prepared her for tough questions from conservative members of the court. She recalled how Justice Antonin Scalia asked for specific legal citations. “I had it right there at my fingertips,” she told the Times. “Roberts was just terrifically helpful in meeting with me and spending some time on the issue. He seemed to be very fair-minded and very astute.” Dubofsky had never argued before the Supreme Court. Smith said she called his firm and asked specifically for help from Roberts, who argued 39 cases before the court before he was confirmed as a judge on the U.S. Court of Appeals in Washington, D.C., in 2003. Smith said any lawyer at Hogan & Hartson would have had the right to decline to work on any case for moral, religious or other reasons. “If John had felt that way about this case, given that he is a brilliant lawyer, he would have just said, ‘This isn’t my cup of tea’ and I would have said, ‘Fine, we’ll look for something else that would suit you,’” Smith said. The Lambda Legal Defense Fund, which helped move the case through the state and federal courts, said Roberts’ involvement raised more questions about him than it answered because of his “much more extensive advocacy of positions that we oppose,” executive director Kevin Cathcart said. “This is one more piece that will be added to the puzzle in the vetting of John Roberts’ nomination,” Cathcart said. The Rev. Lou Sheldon, founder of the Traditional Values Coalition, said his support for Roberts’ nomination has not diminished. “He wasn’t the lead lawyer. They only asked him to play a part where he would be Scalia in a mock trial,” Sheldon said. Focus on the Family Action, the political arm of the Colorado Springs-based conservative Christian ministry Focus on the Family, said Roberts’ involvement was “certainly not welcome news to those of us who advocate for traditional values,” but did not prompt new concerns about his nomination, which the group supports. “That’s what lawyers do — represent their firm’s clients, whether they agree with what those clients stand for or not,” the group said in a statement. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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