Supreme Court nominee Amy Coney Barrett spent much of Tuesday’s confirmation hearing before the Senate Judiciary Committee trying to avoid stating how she would rule on marriage equality, abortion rights, and the Affordable Care Act.
She also used the outdated term “sexual preference” in saying she would not discriminate against LGBTQ+ people.
The ultraconservative Barrett, currently a federal appeals court judge and formerly a law professor, is Donald Trump’s choice to succeed Justice Ruth Bader Ginsburg, a liberal icon who died in September. Ginsburg was well known for defending the rights of women, LGBTQ+ people, and marginalized groups in general.
Barrett has criticized Obergefell v. Hodges, the 2015 Supreme Court ruling that established marriage equality nationwide. She has said the matter should have been decided by individual states through the legislative process — which would result in a patchwork of laws, with same-sex marriages legal in some states and not others. Two conservative justices on the high court, Clarence Thomas and Samuel Alito, recently said they would like to see Obergefell overturned.
Democratic Sen. Dianne Feinstein of California questioned Barrett about marriage equality Tuesday, noting the nominee’s admiration for the late Supreme Court Justice Antonin Scalia, for whom she worked as a law clerk. Feinstein mentioned Scalia’s dissents in Obergefell and in U.S. v. Windsor, the 2013 decision that struck down section 3 of the Defense of Marriage Act, which denied federal government recognition to same-sex marriages.
“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 replied, “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.”
She went on to cite the practice of Ginsburg and other nominees of not saying, during their confirmation hearings, how they would rule on specific cases. “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. … 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 said she understood why Barrett didn’t want to answer that question but added that Barrett had implied that she, like Scalia, “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, “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. Like racism, I think discrimination is abhorrent.” The term “sexual preference,” while accepted decades ago, is now considered inaccurate and offensive by LGBTQ+ people because of its implication that people choose their sexual orientation or gender identity.
Sen. Mazie Hirono of Hawaii checked Barrett on this usage later in the hearing. "Sexual preference is an offensive and outdated term. It 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," Hirono said. Barrett later apologized for her use of the term and said she meant no offense, the Associated Press reports.
Republican Sen. Lindsey Graham and Barrett discussed the possibility of the high court hearing a case on marriage equality, and Barrett said it is not likely, as “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.”
Sen. Patrick Leahy, a Vermont Democrat, asked Barrett about her association with the Blackstone Legal Fellowship, a program of the anti-LGBTQ+ legal nonprofit Alliance Defending Freedom. She has given paid speeches to Blackstone fellows — law students from around the nation — on five occasions.
Leahy mentioned that ADF had celebrated the recriminalization of gay sex in India, and told Barrett, “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.” Barrett said her Blackstone lectures were on constitutional law and had nothing to do with any type of discrimination.
Barrett declined to say how she would rule on abortion rights, although she has made her opposition to abortion clear. But she also declined to call Roe v. Wade, the 1973 ruling that established abortion rights nationwide, a super precedent, meaning it is too significant to overturn. That doesn’t mean, however, that she thinks it should be overturned, she added.
She further said she is “not hostile” to the Affordable Care Act, even though she has criticized Chief Justice John Roberts’s ruling upholding it. The court will hear a case on the ACA, which the Trump administration wants to invalidate, November 10. And she would not commit to recusing herself from cases involving the November election results but said she would not be “used as a pawn” to decide the election. Trump has indicated he may challenge the results in court if he loses.
The judiciary committee is expected to vote on Barrett’s nomination October 22. If the committee approves of Barrett, then the full Senate would vote on whether to confirm her to the court.