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Roberts helped gay-rights activists win landmark ruling

Court nominee had background role in decision

WASHINGTON -- Supreme Court nominee John G. Roberts Jr. worked behind the scenes for a coalition of gay-rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation.

Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay activists as part of his law firm's pro bono work. While he did not write the legal briefs or argue the case before the Supreme Court, he was instrumental in reviewing the filings and preparing oral arguments, according to several lawyers intimately involved in the case.

The coalition won its case, 6 to 3, in what gay activists described at the time as the movement's most important legal victory. The three dissenting justices were those to whom Roberts is frequently likened for their conservative ideology -- Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Roberts's role working on behalf of gay activists, whose cause is anathema to many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client, whoever it might be. There is no other record of Roberts being involved in gay-rights cases that would suggest his position on such issues. He has stressed, however, that a client's views are not necessarily shared by the lawyer who argues on his or her behalf.

The lawyer who asked for his help on the case, Walter A. Smith Jr., then-head of the pro bono department at Hogan & Hartson, said Roberts did not hesitate.

''He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job," Smith said.

Roberts did not mention his work on the gay-rights case in his 67-page response to a Senate Judiciary Committee questionnaire released Tuesday.

The committee asked for ''specific instances" in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them.

But Smith said yesterday that was probably just an oversight because Roberts was not the chief litigator in Romer v. Evans, which struck down a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing.

Jean Dubofsky, lead attorney on the case and a former member of the Colorado Supreme Court, said she came to Washington to prepare for the Supreme Court presentation and immediately was referred to Roberts.

''Everybody said Roberts was one of the people I should talk to," Dubofsky said. ''He has a better idea on how to make an effective argument to a court that is pretty conservative, and hasn't been very receptive to gay rights."

The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Activists across the country cheered the victory. Suzanne B. Goldberg, a staff attorney for Lambda, a legal services group for gays and lesbians based in New York, called it the ''single most important positive ruling in the history of the gay-rights movement."

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