Amy Coney Barrett Refuses to Say Whether She Would Uphold Marriage Equality
Supreme Court nominee Amy Coney Barrett declined to say if she would uphold the legalization of same-sex marriage during her confirmation hearing on Tuesday, casting serious doubt on the future of civil rights for LGBTQ Americans.
The Supreme Court in 2013 and 2015 ruled in two 5-4 decisions that the Constitution’s equal protection clauses must be extended to same-sex couples. Barrett’s mentor, Justice Antonin Scalia, dissented with the minority both times.
Senator Dianne Feinstein (D-CA) asked Barrett if she believed that LGBTQ individuals should be afforded the same legal protections against discrimination as all other Americans:
Both decisions were decided by a 5-4 margin. Justice Ginsburg was in the majority. Justice Scalia dissented in both cases. 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?
Barrett, who has been identified as having close ties with several well-known hate groups, delivered a disturbing response:
If I were 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. But I’m not going to express a view on whether I agree or disagree with Justice Scalia for the same reasons that I’ve been giving. Now, Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing. No hints, no previews, no forecasts. 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. 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.
Judge Amy Coney Barrett: "Justice Ginsburg…used this to describe how a nominee should comport herself at a hearing 'No hints, no previews, no forecasts'…everybody calls it the Ginsburg Rule."
— CSPAN (@cspan) October 13, 2020
“Too bad,” Feinstein fired back. “I understand you don’t want to answer these questions directly,” Feinstein continued, “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 that 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 not only danced around the question a second time; she implied that sexual orientation is a “preference,” which it is not:
Senator, 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. Like racism, I think discrimination is abhorrent. On the questions of law, however, I just, because I’m a sitting judge and because you can’t answer questions without going through the judicial process, can’t give answers to those very specific questions.
Despite her vague platitudes, Barrett’s well-documented record as an appellate court judge speaks for itself.
Marriage equality – and civil rights more broadly – are in mortal danger of being gutted if Barrett is confirmed to the Court.