Trouble’s coming after same-sex couples and might make its way to the Supreme Court Building.
Earlier today, October 13, Supreme Court Justice nominee Amy Coney Barrett went through another day of hearings to determine her candidacy for the high court. For LGBTQ Americans, the hearing didn’t end with a promising tone.
The topic of LGBTQ rights first started when Senator Dianne Feinstein (D-California) asked Barret about the DOMA and Obergefell rulings. The 1996 Defense of Marriage Act, which was signed in by Bill Clinton, defined marriage as between one man and one woman and allowed states to refuse to recognize same-sex marriages granted under the laws of other states. The 2015 case of Obergfell v. Hodges then was a landmark case that legalized same-sex marriage throughout the United States of America and undid DOMA.
“Both decisions were decided by a 5-4 margin,” Feinstein recapped to Barrett. “Justice Ginsburg was in the majority. Justice Scalia dissented in both cases. You said in your acceptance speech for this nomination that Justice Scalia’s philosophy is your philosophy. Do you agree with this particular point of Justice Scalia’s view that the U.S. Constitution does not afford gay people the fundamental right to marry?”
And Barrett’s reply? She said that while she can’t say she would vote like Scalia on a similar case, she wouldn’t put it out of the question either.
“If I were confirmed, you would be getting Justice Barrett not Justice Scalia so I don’t think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would too,” Barrett reasoned. “But I’m not going to express a view on whether I agree or disagree with Justice Scalia for the same reasons that I’ve been giving. Now, Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing. No hints, no previews, no forecasts. That had been the practice of nominees before her but everybody calls it the Ginsburg rule because she stated it so concisely and it’s been the practice of every nominee since. So I can’t, and I’m sorry to not be able to embrace or disavow Justice Scalia’s position but I really can’t do that on any point of law.”
Senator Feinstein then pushed the SCOTUS nominee further to directly answer the question.
“I understand you don’t want to answer these questions directly but you identify yourself with a Justice that you, like him, would be a consistent vote to roll back hard fought freedoms and protections for the LGBT community,” Feinstein pushed. “And what I was hoping that you would say is that this would be a point of difference where those freedoms would be respected and you haven’t said that.”
This is when Barrett may have unconsciously shown her bias against LGBTQ people. In her follow-up to Feinstein’s words, Amy Coney Barrett stated that she never discriminated on the basis of “sexual preference.”
“Senator, I have no agenda and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference,” Barrett replied. “Like racism, I think discrimination is important. On the questions of law, however, I just, because I’m a sitting judge and because you can’t answer questions without going through the judicial process, can’t give answers to those very specific questions.”
After hearing Barrett call sexual orientation, “sexual preference,” many complained on social media.
The correct term is sexual orientation. "Sexual preference" is a term often used by anti-LGBTQ activists to imply that sexual orientation is a choice. https://t.co/rT6g95gsG1
— GLAAD (@glaad) October 13, 2020
Right: “Sexual preference” the kind of language used by Alliance Defending Freedom, a law firm that opposes equal rights for LGBTQ people (including basic non-discrimination protections) and supports the criminalization of homosexuality.
It’s frightening to hear Barrett use it. https://t.co/BhMlDm1EAs
— Mark Joseph Stern (@mjs_DC) October 13, 2020
Barrett used "sexual preference" (not "sexual orientation") when discussing her views on marriage equality.
— Lambda Legal (@LambdaLegal) October 13, 2020
“This is a dogwhistle,” LGBTQ Rights and legal-advocacy group Lambda Legal tweeted. “The term ‘sexual preference’ is used by opponents of equality to suggest that being #LGBTQ is a choice.”
Later on Tuesday, Democratic Sen. Mazie Hirono criticized Barrett for saying “sexual preference.” The SCOTUS nominee then apologized and stated that she didn’t realize it was offensive.
“I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community,” Barrett said. “If I did, I greatly apologize for that.”
According to Business Insider, critics then pointed out that Barrett’s claims are possibly false. It turns out, the judge may have discriminated against LGBTQ people before. Between 2015 to 2017, Barrett served on the board of trustees of Trinity Schools Incorporated. The school system is a group of Indiana private schools that in 2014 adopted a policy barring children with unmarried parents from attending the school, according to The New York Times. Many LGBTQ advocates believed this system-wide policy was an act of banning children of same-sex couples, as same-sex marriage was not recognized in Indiana at the time.