Story at a glance

  • Amy Coney Barrett has been nominated for Supreme Court justice by President Trump.
  • In a hearing, Barrett used the term “sexual preference,” which LGBTQ+ advocates say is incorrect.
  • The response falls within the broader context of whether or not Barrett would defend the right to marriage for same-sex couples.

In response to a question about the Supreme Court’s decision in Obergefell v. Hodges, Amy Coney Barrett, the nominee for Supreme Court Justice to replace the late Justice Ruth Bader Ginsburg, said: "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."

It’s impossible to know what Barrett intended by her choice of words, but her response betrayed what is either ignorance or willful disregard of the correct term, which is “sexual orientation.”

Why does it matter? “Sexual preference” implies that sexuality is a choice, which allows for the anti-LGBTQ+ argument that gay, lesbian, bisexual, pansexual people and all other sexual orientations could change their preference — and are making the wrong choice. The more precise term, “sexual orientation,” has been adopted by many, but conservatives who are staunchly against LGBTQ+ rights tend to use the former language. 

Perhaps it wouldn’t matter as much to those who criticized her response online if there wasn’t a concern over Barrett’s position on the case and LGBTQ+ rights as a whole. Barrett did not answer whether she agreed with the landmark 2015 Supreme Court ruling in Obergefell v. Hodges that same-sex marriage is a constitutionally protected right. 


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But LGBTQ+ advocates are concerned Barrett, who was nominated by President Trump, will be biased towards the Republican platform, which was adopted in 2016 and endorses legislation to protect those who believe "marriage is the union of one man and one woman.” Sarah Kate Ellis, the president and CEO of GLAAD, called Barrett's nomination "an attack on our community.” 

With five of the nine seats nominated by Republicans, Barrett's nomination is perceived to cement a Republican majority on the highest court in the nation. It’s again impossible to say whether or not this will prove true, but Barrett’s record suggests she may be conservative on LGBTQ+ and women’s issues.  


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In 2015, Barrett, who is Catholic, signed a letter to Catholic bishops including a statement about “marriage and family founded on the indissoluble commitment of a man and a woman” — suggesting her personal opinion mirrors that of the Catholic Church, which does not recognize same-sex marriages and characterizes "homosexual acts" as "intrinsically immoral." But during the hearing, Barrett said her personal and religious views would not affect her rulings.

In a 2019 decision of the 7th Circuit Court, Barrett joined a dissent arguing that the court should rehear a case blocking an anti-abortion law before it took effect. The Supreme Court later reversed the decision and Justice Ginsburg — whose now-vacancy might be filled by Barrett — issued an opinion concurring in part and dissenting in part. 

"I would not summarily reverse a judgment when application of the proper standard would likely yield restoration of the judgment," Ginsburg wrote. She continued, "This case implicates ‘the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State...so heightened review is in order."


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Published on Oct 13, 2020