Why Amy Coney Barrett's comments on "sexual preference" are ominous

It's even worse than you think. And her apology doesn't wash.

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During her Senate Judiciary Committee hearing on Tuesday morning, in response to Senator Dianne Feinstein’s questions about the Supreme Court’s 2015 Obergefell marriage equality ruling, Judge Amy Coney Barrett, President Donald Trump’s Supreme Court justice nominee, claimed that she has “no agenda" and that "I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.” This, even as she refused to say she wouldn’t overturn the landmark ruling.

The term “sexual preference,” rather than “sexual orientation,” prompted outcry on social media because it’s quite outdated and offensive, though it’s a term still used by anti-LGBTQ hate groups — like the legal group, Alliance Defending Freedom, which Barrett took money from in the past for lectures — who describe homosexuality as a “choice” and support “conversion therapy.” Senator Mazie Hirono of Hawaii zeroed in on the use of this loaded term during her time (but without asking Barrett for a response), prompting Barrett to apologize just before Iowa’s Senator Joni Ernst’s questioning:

I certainly didn't mean and would never mean to use a term that would cause any offense to the LGBTQ community. So, if I did, I greatly apologize for that. I simply meant to be referring to Obergefell's ruling with respect to same-sex marriage.

Barrett added later, under questioning from Senator Cory Booker, that she “did not mean to imply” that it’s “not an immutable characteristic” or that it’s “solely” a “preference.” When Booker sought for her to confirm that she was indeed saying sexuality was immutable, Barrett wouldn’t explicitly say that either.

None of this added up, and Barrett’s apology just doesn’t wash. It’s very strange that someone as young as Barrett — 48 years old — wouldn’t know that the term widely-used in media, politics and certainly in the legal world is “sexual orientation,” and that “preference” is offensive and outdated. It’s as if she hasn’t been living in the same culture we’ve seen evolve dramatically in a few short years. Conversely, her apology and further comments sounded like she’d been told what to say to try to tamp it all down.

And, curiously, Barrett still didn’t use the term “sexual orientation” even while apologizing “if” she offended “the LGBTQ community.”

Many anti-LGBTQ groups actually use the term “LGBTQ” — for example, in warning against the “LGBTQ agenda” or LGBT movement — but do not use the term sexual orientation except to mock it or quote LGBTQ advocates. So, using LGBTQ (while not using sexual orientation) doesn’t mean Barrett is any more accepting than her initial statement and her greatly concerning record on the issues would suggest.

It’s also noteworthy that when asked by Feinstein about Obergefell — and in particular, if she agreed with the position of the late, astoundingly homophobic Justice Antonin Scalia on the ruling, in which he dissented — Barrett didn’t respond by discussing her role as a judge and any legal positions past, present or future, but rather told Feinstein about her personal behavior: “I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”

It’s odd because Republicans have spent weeks trying to bait Democrats to discuss Barrett’s personal beliefs and behavior. Barrett was involved for years in a small, ultra-conservative sect of charismatic Catholics, People of Praise, in which women are subjugated to men, and according to the New York Times, “rejects openly gay men and women.” Republicans have thunderously warned against discussing this personal behavior and beliefs, claiming it’s an attack on her religious faith (even though Democratic lawmakers haven’t gone there at all.)

But now here is Barrett replying to a question about the fundamental legal protections of a group by telling the committee about her personal behavior toward that group, and thereby dodging the question.

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And what is Barrett really telling us about her personal behavior? Well, perhaps it’s that even if you believe sexuality to be a “preference” and thus a choice (and even a bad one), it’s wrong to personally mistreat those who have that preference. That’s the classic St. Augustine “love the sinner, hate the sin” dictum of the Catholic faith, which I’m certainly familiar with, having been raised within it. There are Catholic priests — some of whom Barrett may even know — who, in her lingo, would admit to having the “preference,” but who say they abstain from all sexual activity, adhering to their faith.

That brings us to virulently anti-LGBTQ Scalia, who, like Barrett, was a devout, orthodox Catholic, and whom Barrett calls her mentor, a justice for whom she clerked in 1998 and 1999. The term Scalia liked to use was “homosexual conduct,” which, though cruder, is not much different than “sexual preference” in that it negates identity — a people — and positions homosexuality as an act. And to Scalia, it’s an act comparable to polygamy and even murder.

While Feinstein asked Barrett if she agreed with Scalia’s position on the marriage equality ruling, it should be noted that Scalia joined Chief Justice John Roberts’ blistering dissent — which Barrett is on record as saying is correct, clearly believing that marriage for gays should be left to the states — and also wrote a separate dissent that, though it was totally off the wall, wasn’t his most homophobic rant, even as he said the ruling was “a threat to democracy.”

The most homophobic screeds written by Scalia were actually just before and after Barrett clerked for him, during the time she looked up to him and he shaped her legal views. In Romer v. Evans in 1996, in which the majority ruled that states can’t stop cities from banning anti-gay discrimination, Scalia wrote :

Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct ...

Two years later, Barrett began clerking for Scalia. She told the Senate Judiciary Committee on Monday:

I felt like I knew the justice before I ever met him, because I had read so many of his colorful, accessible opinions. More than the style of his writing, though, it was the content of Justice Scalia's reasoning that shaped me. ... A judge must apply the law as written, not as the judge wishes it were.

That last line reflects statements in all of Scalia’s anti-gay dissents: that the framers’ intention in writing the Constitution — following the philosophy of “originalism” that he and Barrett adhere to — was not to include rights based on “homosexual conduct,” and therefore it must be a matter left for the states.

In 2003, three years after Barrett clerked for Scalia — a man whom she continued to revere — the Supreme Court struck down sodomy laws in Lawrence v. Texas, and Scalia went on an anti-gay rampage in his dissent:

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Barrett has contorted herself a bit at the hearings, claiming now that she does have differences with Scalia, even though he’s a mentor (without explaining what those differences are). But it’s hard to see how her views are that different on LGBTQ issues since she agrees with the basic underpinning of Scalia’s arguments and she has already said she agreed with Roberts’ dissent in Obergefell, which Scalia joined. And how could anyone so revere a man who made such repugnant, bigoted remarks about a group under constant threat of violence and discrimination, unless that person largely agreed?

In Scalia’s 2013 dissent when the Supreme Court struck down the Defense of Marriage Act, he even appeared to invoke “love the sinner, hate the sin”:

[T]o defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.

That sounds pretty close to Barrett saying she personally wouldn’t discriminate — or condemn, demean or humiliate — anyone on the basis of “sexual preference.”

But, like Scalia, that doesn’t necessarily mean she believes such individuals are protected on that basis under the Constitution.