Amy Coney Barrett, one of the front-runners to be Donald Trump’s next Supreme Court nominee, would be an “absolute threat” to LGBTQ+ rights, says the Human Rights Campaign.
Barrett, currently a judge on the U.S. Court of Appeals for the Seventh Circuit, which covers Illinois, Wisconsin, and Indiana, is one of three judges who are said to be the leading contenders to replace Justice Ruth Bader Ginsburg, who died Friday. The others are also federal appellate court judges, Barbara Lagoa from the Eleventh Circuit and Allison Jones Rushing from the Fourth Circuit. But Barrett has received the most scrutiny so far.
“Amy Coney Barrett’s history tells a story of anti-LGBTQ ideology, opposing basic rights thought to be settled law, and an anti-choice ideology out of step with popular opinion,” says an HRC press release issued Tuesday.
Barrett is a former law professor at the University of Notre Dame and was a clerk to the late, ultraconservative Supreme Court Justice Antonin Scalia. She was named to the appeals court in 2017. She does not have a large paper trail on LGBTQ+ issues, but she made some of her views known during a lecture at Jacksonville University in Florida in 2016, which is available on YouTube (see below).
Asked about the 2015 Obergefell v. Hodges decision, in which the Supreme Court brought marriage equality to all 50 states, she questioned whether it was the court’s role to establish this right. “[Chief Justice John Roberts, in his dissent,] said, those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide. ... So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”
Fighting for marriage equality in all 50 state legislatures would have taken much longer, and some in conservative states would probably never pass a marriage equality law, so this strategy would have resulted in a patchwork of laws around the nation.
Also in that lecture, she argued that Title IX of the Education Amendments of 1972, a federal law banning sex discrimination in education, should not apply to transgender people. “When Title IX was enacted, it’s pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result, at that time,” she said. “Maybe things have changed so that we should change Title IX, maybe those arguing in favor of this kind of transgender bathroom access are right. That’s a public policy debate to have. But it does seem to strain the text of the statute to say that Title IX demands it.”
Just this year, however, the current court, in a 6-3 decision written by Trump appointee Neil Gorsuch, no less, ruled that a similar federal law banning sex discrimination in the workplace — Title VII of the Civil Rights Act of 1964 — did apply to discrimination based on sexual orientation and gender identity.
In another remark in that lecture, Barrett referred to trans women as “physiological males,” saying, “People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present.”
Several other analyses of Barrett’s history have been circulating during the past few years; she was said to be a Supreme Court finalist in 2018, but Trump ended up nominating Brett Kavanaugh. It’s often noted that Barrett has said, “The Constitution does not expressly protect a right to privacy,” a statement that has implications for LGBTQ+ rights, abortion rights, and more. Of her stance on reproductive rights, “it would be hard to overstate the degree to which Barrett’s academic work has been tailored to dismantle Roe v. Wade,” the Alliance for Justice, a progressive group that monitors judicial nominees, once observed. Roe was the Supreme Court ruling that established the right to abortion nationwide.
Barrett in 1998 coauthored an article stating that Catholic judges, such as herself, might want to recuse themselves from cases involving abortion, euthanasia, or the death penalty, all of which the church opposes. She and collaborator John Garvey “noted that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by ‘the oath I took to support the Constitution and laws of the United States,’” SCOTUSBlog reports. “Barrett and Garvey observed that they did not ‘defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.’”
At her 2017 confirmation hearings for the appeals court position, some senators questioned whether Barrett would let her religious beliefs override the law. She responded that her stance on abortion “or any other question will have no bearing on the discharge of my duties as a judge.” However, there were those, such as Democratic Sen. Dianne Feinstein of California, who were not convinced. “The dogma lives loudly within you,” Feinstein said, a remark that was critiqued by some of her colleagues as an unconstitutional “religious test” for public office.
One thing that did not come up was Barrett’s membership in an interdenominational Christian group called People of Praise, something that “might have led to even more intense questioning,” The New York Times reported in 2017. “Some of the group’s practices would surprise many faithful Catholics. Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a ‘head’ for men and a ‘handmaid’ for women. The group teaches that husbands are the heads of their wives and should take authority over the family.”
Barrett declined to be interviewed for the Times story, but a leader of the group, Craig S. Lent, “said the group’s system of heads and handmaids promotes ‘brotherhood,’ not male dominance,” according to the paper. “He said the group recently dropped the term ‘handmaid’ in favor of ‘woman leader.’”
“We follow the New Testament pattern of asking men to take on some spiritual responsibility for their families,” he told the Times.
Barrett has also been praised by antichoice groups and has signed a letter criticizing the Affordable Care Act’s mandate for contraceptive coverage, finding the accommodation offered to religious employers — having the insurance company, not the employer, cover the cost — to be insufficient. On racial issues, Barrett once “sided against an African-American worker whose employer transferred him to another store through an alleged practice of segregating employees by race,” according to the Alliance for Justice. The AFJ has a lengthy analysis of her record here, and the SCOTUSBlog article is here. The Jacksonville University lecture is below.