LGBT issues were front and center in Day Two of the confirmation hearing for U.S. Supreme Court nominee Amy Coney Barrett, with Democrats and even a few Republicans attempting to clarify how she might approach such issues on the high court.
And though Barrett betrayed little on Tuesday of what she might be expected to do on same-sex marriage or transgender access, she caught the attention of many when she referred to LGBT people as having a “sexual preference.”
When U.S. Senator Mazie Hirono (D-Hawaii) criticized her later in the hearing, noting that “sexual preference is an offensive and outdated term,” Barrett apologized.
The term “sexual preference,” said Hirono, “is used by anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not. Sexual orientation is a key part of a person's identity."
Barrett said she “certainly didn't mean and would never mean to use a term that would cause any offense in the LGBTQ community."
Senator Patrick Leahy (D-Vt.) questioned Barrett’s association with the Alliance Defending Freedom, a national group that has mounted numerous lawsuits seeking to reverse legal protections for LGBT people, many of which have been appealed to the Supreme Court. Barrett accepted five invitations to speak before the organization.
“Whether you believe being gay is right or wrong is irrelevant to me,” said Leahy, “but my concern is that you worked with an organization that is working to criminalize people for loving a person that they are in love with.”
Barrett said her presentations concerned “regionalism” and she was speaking to a group of Christian law students.
“I did not read all of the materials the students were given to read,” said Barrett.
Leahy asked Barrett whether she feels same-sex marriage should be a crime. Barrett replied that the Supreme Court’s decision in Obergefell “clearly says that there is a constitutional right to same-sex marriage.”
Obergefell v. Hodges was the Supreme Court’s 2015 decision that struck down state bans on same-sex couples from marrying.
“And you agree with that stare decisis?” asked Leahy. Stare decisis is a legal principle that says courts should decide disputes based on prior decisions. Barrett said it would be inappropriate for her to “give a thumbs up or thumbs down on a particular precedent.”
The Obergefell decision came up time and time again during Tuesday’s hearing.
Senate Judiciary Committee Chairman Lindsey Graham (R-SC) was the first to bring it up as he led off the first round of questions. After questioning Barrett about abortion and guns, he asked her, “What’s the case that established same-sex marriage as the law of the land?”
"Obergefell," said Barrett.
Graham asked Barrett what would happen if a state “tried to outlaw same-sex marriage” now. She said that, if a case challenged Obergefell, it would have to go through the lower courts first.
“And the most likely result,” said Barrett, “would be that the 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.”
U.S. Senator Dianne Feinstein (D-Calif.), the committee’s ranking minority member, talked about a well-known activist couple in San Francisco — Del Martin and Phyllis Lyon — and noted that Lyon had been denied Social Security survivor benefits when Martin died in 2008 because of DOMA. Feinstein noted that Barrett has said that the legal philosophy espoused by then-Supreme Court Justice Antonin Scalia (for whom Barrett clerked) “is your philosophy.”
“Do you agree with Justice Scalia’s view that the U.S. Constitution does not afford gay people the fundamental right to marry?” asked Feinstein.
Barrett reiterated a remark she made earlier, with Graham, that if she is 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,” said Barrett. Then she tried to side-step the question, saying that it would be inappropriate for her, as a nominee, to “embrace or disavow Justice Scalia’s position … on any point of law.”
Feinstein, in uncharacteristic form, did not let Barrett off the hook.
“Well, it’s a rather fundamental point for large numbers of people,” Feinstein said. “I understand you don’t want to answer these questions directly, but you identify yourself with a justice that [was] a consistent vote to roll back hard-fought freedoms and protections for the LGBT community. 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.”
“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 said.
Even Senator John Cornyn (R-Tex.) brought up LGBT issues, noting that President Donald Trump’s first Supreme Court nominee, Neil Gorsuch, had been attacked during his confirmation hearing for his “unwillingness to make a prior commitment on LGBT issues.”
“He wrote the Bostock case extending Title VII of the Civil Rights to gay or transgender individuals,” Cornyn said. “Obviously, those predictions were wrong.”
Cornyn then brought up Obergefell, noting that it allowed same-sex marriage but then adding that “part of that struck down the Defense of Marriage Act, correct?”
Barrett replied, “Yes, I believe so.” (It didn’t. The Defense of Marriage Act was struck down in 2013 with U.S. v. Windsor.)
“That was a bill that Joe Biden voted for?” asked Cornyn.
“I don’t know,” said Barrett.
“I do,” said Cornyn. “Joe Biden voted for it.”
Cornyn was not the only senator trying to score a political point for the Republican side. Nearly every senator did, including the Democrats.
Senator Sheldon Whitehouse (D-RIs.) spent all of his 30-minute time allotment to lay out evidence of “an orchestrated campaign by conservative Republican groups to influence the selection of justices with the stated objective and plan” to seek reversal of Obergefell, Roe v. Wade, and the Affordable Care Act.
Throughout the day, Barrett dodged questions seeking to determine her willingness to overturn Roe v. Wade or the ACA. She also said she can set aside her Catholic beliefs in deciding cases. And when it came to questions about whether she would recuse herself from any upcoming case that might decide a conflict in the presidential election, Barrett had a well-prepared answer. She said she would “fully and faithfully” apply laws relating to recusal and will “apply the factors that other justices have before me in determining whether the circumstances require my recusal or not.”
“But I can't offer a legal conclusion right now,” said Barrett, “about the outcome of the decision I would reach.”
Lisa Keen is the Chief Correspondent for Keen News Service, a professional news organization specializing in national political and legal news that involves or affects gay, lesbian, bisexual, and transgender people.