Amy Coney Barrett, President Donald
Trump's pick for the U.S. Supreme Court, on Tuesday declined to
answer questions about Obergefell, the 2015 ruling that found
gay and lesbian couples have a constitutional right to marry.
California Senator Dianne Feinstein,
the top Democrat on the Senate Judiciary Committee, asked Barrett
whether she was in agreement with the late Justice Antonin Scalia on
the issue of marriage equality. Barrett clerked for Scalia and during
Monday's hearing said that “his judicial philosophy is mine too.”
“In 2013, as you probably know,
because you know so much about this, U.S. v. Windsor, the
Supreme Court struck DOMA down,” Feinstein said. “Two years
later, in Obergefell v. Hodges the Supreme Court recognized
that the fundamental right to marry could not be denied to LGBT
Americans. Both decisions were decided by a 5-4 margin. Justice [Ruth
Bader] Ginsburg was in the majority; Justice Scalia dissented in both
cases.”
“Now 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?” Feinstein asked.
“Senator Feinstein, as I said to
Senator [Lindsey] Graham at the outset, if I were confirmed, you
would be getting Justice Barrett, not Justice Scalia,” Barrett
replied. “So I don’t think that anybody should assume that just
because Justice Scalia decided a decision in a certain way that I
would too. But I’m not going to express a view on whether I agree
or disagree with Justice Scalia for the same reasons that I have been
giving.”
“Well, that’s really too bad
because it’s rather a fundamental point for large numbers of people
I think in this country,” Feinstein said. “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 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 by saying that she
“has no agenda” and has “never discriminated on the basis of
sexual preference.”
Later in the hearing, Hawaii Senator
Mazie Hirono, a Democrat, described the term sexual preference as
“offensive and outdated” language “used by anti-LGBTQ activists
to suggest that sexual orientation is a choice.”
“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,” Hirono explained,
“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.”
Barrett later apologized for using the
term, saying that she “didn't mean to use a term that would cause
any offense in the LGBTQ community.”
Vermont Senator Patrick Leahy, a
Democrat, questioned Barrett's ties to the Blackstone Legal
Fellowship, a project of the Alliance Defending Freedom (ADF), which
is best known for representing Christians opposed to LGBT rights.
Barrett, who gave a lecture on
originalism to the group, said: “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.”
Sharon McGowan, legal director for LGBT
legal group Lambda Legal, questioned Barrett's statement.
“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.”
“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.”