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Washington Blade: Gay News, Politics, LGBT Rights: Barrett: ‘I have never discriminated on the basis of sexual preference’


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Judge Amy Coney Barrett at the United States Senate Committee on the Judiciary hearing on Oct. 12, 2020 for her nomination to the Supreme Court. (Photo by Leah Millis/Reuters; POOL PHOTO used with permission)

Amy Coney Barrett, President Trump’s pick for the now vacant seat on the U.S. Supreme Court, fended off questions during her confirmation hearing on whether she undo on same-sex marriage, declining to disavow dissents to historic rulings for marriage equality from her mentor Antonia Scalia.

Sen. Dianne Feinstein (D-Calif.), top 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 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 decision, 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.

“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.”

Feinstein, however, wasn’t satisfied with that answer, calling marriage rights for same-sex couples “a fundamental point for large numbers of people, I think, in this country.”

“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 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).

The prospect of Barrett’s confirmation leading to the Supreme Court reversing Obergefell v. Hodges, the 2015 ruling granting full rights marriage rights to same-sex couples, has emerged as a spectre amid concerns she’d move the court further to the right and an unexpected statement from U.S. Associate Justices Samuel Alito and Clarence Thomas last week declaring war on the decision.

More to come…

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Washington Blade: Gay News, Politics, LGBT Rights