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 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.”
“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.”