Amy Coney Barrett, President Trump's pick for the now-vacant seat on the U.S. Supreme Court, fended off questions Tuesday during her confirmation hearing on whether she'd 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 Democrat 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 that Lyon was ineligible for Social Security survivor benefits because of the Defense of Marriage Act, 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 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. 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).
Shannon Minter, legal director for the National Center for Lesbian Rights, criticized Barrett in a statement for using the term "sexual preference," crediting such terminology with the prevalence of widely discredited conversion therapy.
"When Amy Coney Barrett used the term 'sexual preference' in her testimony before the Senate today, she perpetuated the dangerous and false stereotype that being LGBTQ is not a fundamental aspect of identity, but a mere 'preference,'" Minter said. "This is why so many people, including many parents who send their children to conversion therapy, think being LGBTQ is a choice. As judges know, language matters."
Upbraiding Barrett on the committee for use of the term sexual preference was Sen. Mazie Hirono (D-Hawaii), who said that was "offensive and outdated" language and "used by anti-LGBTQ activists to suggest that sexual orientation is a choice."
"It is not," Hirono continued. "Sexual orientation is a key part of a person's identity. That sexual orientation is both a normal expression of human sexuality and immutable was a key part of the majority's opinion in Obergefell, which by the way Scalia did not agree with. So, if it is your view that sexual orientation is merely a preference, as you noted, then the LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry."
Although Hirono continued in a tirade against Barrett she didn't allow the nominee to address those remarks. Sen. Joni Ernst (R-Iowa) at the start of her questioning, gave the nominee an opportunity to clarify and apologize.
"I certainly didn't mean to use a term that would cause any offense in the LGBTQ community," Barrett said. "So if I did, I greatly apologize for that. I simply meant to be referring to Obergefell as holding with respect to same-sex marriage."
The prospect of Barrett's confirmation leading the Supreme Court to reverse Obergefell v. Hodges, the 2015 ruling granting full marriage rights to same-sex couples, has emerged as a concern following 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 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 decisions 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 that same-sex couples have a right to marry, the nominee declined to say whether she 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 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 questioning from Leahy, however, Barrett affirmed she would not seek to overturn decisions just because a majority of the court supported it, saying "the doctrine of stare decisis requires that."
Leahy also brought up Barrett admitting to having taken 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 when 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 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 what my specialty was, which was constitutional law."
Barrett went on to defend the Blackstone fellowship despite having ties to the legal firm that has been at the 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 Blackstone were ever indicative of any kind of discrimination on the basis of anything," Barrett said.
Sharon McGowan, legal director for Lambda Legal, criticized Barrett for refusing to denounce ADF during the confirmation hearing.
"Clearly, Judge Barrett sees no inherent problem with her affiliation with ADF, which is deeply problematic to us and should be to anyone who cares about LGBTQ people and our families," McGowan said. "ADF is among the largest, best known, and most extreme of the many anti-LGBT legal organizations, so her claim that she isn't aware of their hostility toward LGBTQ people is disingenuous at best."
Coming to Barrett's defense on the committee was Sen. John Cornyn (R-Texas), who listed judges who ruled in unforeseen ways, pointing out U.S. Associate Justice Neil Gorsuch, a Trump appointee, ended up ruling anti-LGBTQ discrimination is prohibited under Title VII of the Civil Rights Act of 1964.
"I think about the attacks on Neil Gorsuch for his unwillingness to make a prior commitment on LGBT issues," Cornyn said. "He wrote the Bostock case extending Title VII of the Civil Rights Act to gay or transgender. Obviously, those predictions were wrong."
McGowan added Barrett's choice of the term "sexual preference" goes hand-in-hand with her past work with the anti-LGBTQ legal group.
"Her use of the term 'sexual preference' instead of 'sexual orientation' during today's hearing, as well as her prior misgendering of transgender people, come straight out of the ADF playbook," McGowan said. "Such language is not only dismissive of our identities, but also reveals a deep hostility to our entitlement to equal protection of the law. It is unreasonable to think that she would be able to administer fair and impartial justice to our communities if she can't even accept our basic humanity and dignity."
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.