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posted Friday, October 16, 2020 - Volume 48 Issue 42
Red flag at Amy Coney Barrett hearing: Nominee says she won't discriminate against "sexual preference"
Section One
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Red flag at Amy Coney Barrett hearing: Nominee says she won't discriminate against "sexual preference"

by Mike Andrew - SGN Staff Writer

Supreme Court nominee Amy Coney Barrett used a suspect phrase when referring to marriage equality in Senate hearings on October 13.

In response to a question from California Sen. Diane Feinstein, a Democrat, Barrett initially refused to comment on how she might follow the lead of her judicial mentor, Antonin Scalia, on issues of same-sex marriage.

Scalia was one of the four conservative justices who voted not to recognize same-sex marriage rights in the historic Obergefell case in 2015.

In response to pressing questions from Feinstein, Barrett said she could not comment because cases derived from Obergefell might come before the court. She then added: "I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference."

The term "sexual preference" instead of "sexual orientation" is now considered outdated, if not pejorative. It is especially problematic in a legal context, because in the US legal system protections are afforded to immutable characteristics like race or sex, but not usually to preferences or choices.

Barrett's statement is also troubling because she says she foresees cases challenging or limiting Obergefell coming before the high court while she serves on it. It's well known that right-wing legal groups deliberately recruit clients to challenge rulings like Obergefell, hoping they can get a favorable ruling from judges who share their social philosophy.

In a recent ruling in the case of Kim Davis, the county clerk who defied the Obergefell decision by refusing marriage licenses to Gay couples, Justices Clarence Thomas and Samuel Alito wrote a scathing dissent challenging Obergefell on First Amendment religious-liberty grounds.

Barrett, a member of an extremist Catholic traditionalist organization, would certainly be sympathetic to such an argument should cases come before the Supreme Court.

Barret also refused to answer questions on her views of Roe v. Wade, the case that established women's right to reproductive choice. In past statements, Barrett has said Roe was wrongly decided.

In 2006, Barrett signed on to an advertisement that called the landmark decision "barbaric." The nominee also skirted questions on the Affordable Care Act, long a target of the Trump administration.

"I have had no conversation with the president or any of his staff in how I might rule in this case," Barrett said in response to questioning from Democrat Patrick Leahy.

"It would be a gross violation of judicial independence for me to make such a commitment," Barrett added.

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