ABOVE: Judge Amy Coney Barrett at the United States Senate Committee on the Judiciary hearing on Oct. 12 for her nomination to the Supreme Court. (Photo by Leah Millis/Reuters; POOL PHOTO used with permission)
Amy Coney Barrett, President Donald Trump’s pick for the now vacant seat on the U.S. Supreme Court, fended off questions during her confirmation hearing on whether she would undo same-sex marriage, declining to disavow dissents to historic rulings for marriage equality from her mentor Antonin Scalia.
Sen. Dianne Feinstein (D-Calif.), top on the Senate Judiciary Committee, invoked the memory of gay rights pioneers Del Martin and Phyllis Lyon in questioning Barrett, recalling their wedding in 2008 after the California Supreme Court ruled in favor of marriage equality.
Feinstein, recalling when Martin died two months later Lyon was ineligible for Social Security survivor benefits because of the Defense of Marriage Act (DOMA), asked Barrett about Scalia’s dissent to the 2013 ruling striking down the Section 3 of DOMA, which barred federal recognition of same-sex marriage.
“Now you said in your acceptance speech for this nomination that Justice Scalia’s philosophy is your philosophy,” Feinstein said. “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?”
Barrett insisted upon her confirmation “you would be getting Justice Barrett, not Justice Scalia.”
“I don’t think that anybody should assume that just because Justice Scalia decided decision a certain way that I would, too,” Barrett said.
Barrett, however, then invoked the rule associated with the late U.S. Associate Justice Ruth Bader Ginsburg, as is customarily done for judicial nominees, to avoid answering directly how she’d directly rule on same-sex marriage — which is consistent with her testimony and other judicial nominees seeking confirmation.
“No hints, no previews, no forecasts,” Barrett said. “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 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.”
Feinstein, however, wasn’t satisfied with that answer, calling marriage rights for same-sex couples “a fundamental point for large numbers of people, I think, in this country.”
“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 said. “And what I was hoping you would say is that this would be a point of difference where those freedoms would be respected and you haven’t said that.”
Barrett responded to Feinstein’s concerns by insisting she “has no agenda,” then went on to disavow discrimination on the basis of “sexual preference.”
“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 said. “Like racism, I think discrimination is abhorrent.”
The term sexual preference is considered inappropriate — and offensive — to describe whether or not a person identifies as LGBTQ because it implies being LGBTQ is a choice. Instead, the standard terms are sexual orientation and gender identity (and in some circles, the term sexual identity is emerging as a broader term to encompass all aspects of the LGBTQ community).
The prospect of Barrett’s confirmation leading to the Supreme Court reversing Obergefell v. Hodges, the 2015 ruling granting full rights marriage rights to same-sex couples, has emerged as a spectre amid concerns she’d move the court further to the right and an unexpected statement from U.S. Associate Justices Samuel Alito and Clarence Thomas last week declaring war on the decision.
Sen. Lindsey Graham (R-S.C.), chair of the Senate Judiciary Committee, sought to allay concerns the Trump-appointed nominee would overturn Obergefell — as well as other Supreme Court precedents — with questioning of his own, prompting Barrett to affirm the limited role of justices.
“Judges can’t just wake up one day and say, ‘I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett said.
Initially asking Barrett to identify the Supreme Court ruling in favor of same-sex marriage (which Barrett correctly identified as Obergefell), Graham asked if the process were for a state seeking to defy the decision would be the same for any legal challenge.
“It would and one thing I’ve neglected to say before that’s occurring to me now is that not only would someone have to challenge that statute … if they outlawed same sex marriage, there’d have to be a case challenging it, and for the Supreme Court to take it up, you’d have to have lower courts going along and saying we’re going to flout Obergefell,” Barrett said.
Barrett went on to downplay the prospect of the Supreme Court overturning same-sex marriage based on lower courts rejecting the challenge — flat-out ignoring the prospect of the Supreme Court reviewing those lower court decision and deciding to overturn Obergefell as precedent.
“The most likely result would be that lower courts, who are bound by Obergefell would shut such a lawsuit down, and it wouldn’t make its way up to the Supreme Court but if it did, it would be the same process I’ve described,” Barrett said.
Sen. Patrick Leahy (D-Vt.), attending the confirmation hearing virtually, asked Barrett whether she’d respect the principle of stare decisis — the idea the Supreme Court should keep with precedent to ensure consistency in the law — with respect to same-sex marriage.
After Barrett initially simply affirmed the holding in Obergefell same-sex couples have a right to marry, the nominee declined to say whether she’d agrees with that precedent consistent with her testimony in her response to other cases.
“Senator, for the reasons I’ve already said, I’m not going to as Justice [Elana] Kagan put it, give a thumbs up or thumbs down to any particular precedent,” Barrett said. “It’s precedent of the Supreme Court that gives same-sex couples a right to marry.”
Upon further from Leahy, however, Barrett affirmed she’d would respect as a Supreme Court and not seek to overturns decisions just because a majority of the court, saying “the doctrine of stare decisis requires that.”
Leahy also brought up Barrett admitting to having taken a speaking fees to address the Blackstone Legal Fellowship, which is a project of the anti-LGBTQ Alliance Defending Freedom, asking her if she was familiar with the law firm’s filings in support of keeping same-sex relations criminalized in the United States, and recriminalizing them abroad.
“They celebrated India restored a law punishing sodomy with 10 years in prison,” Leahy said. “Now I don’t — Whether you believe being gay is right or wrong is irrelevant to me, but my concern is you worked with an organization working to criminalize people for loving a person that they’re in love with. So, that’s what worries me.”
Barrett, however, said her experience with Blackstone “was a wonderful one,” saying it gathers “the best and brightest Christian law students from around — law students from around the country,” making a notable correction to describe the correction in her response.
“As you said, I gave a one-hour lecture on originalism,” Barrett said. “I didn’t read all the material that students were given to read. That had nothing to do with my lecture. I enjoyed teaching the students about my what specialty was, which was constitutional law.”
Barrett went on to defend the Blackstone fellowship despite having ties to legal firm that has been forefront of curtailing LGBTQ rights, most recently before the U.S. Supreme Court in the Bostock v. Clayton County case that affirmed firing workers for being LGBTQ was illegal.
“Nothing about any of my interactions with anyone involved in the Blackstone were ever indicative of any kind of discrimination on the basis of anything,” Barrett said.
