On only the second day of Supreme Court confirmation hearings, Amy Coney Barrett is already sounding many people’s alarms. After Barrett refused to comment on her position regarding Roe v. Wade and abortion access, a more clear picture of the SCOTUS nominee's views came to light. But one jarring moment may have flown under the radar. On Tuesday, when Senator Dianne Feinstein pressed Barrett on same-gender rights, she refused to answer again and again.
Then, when asked if she agrees with Judge Scalia’s criticism of the same-sex marriage ruling in Obergefell v. Hodges, the case which legalized gay marriage, Barrett finally gave an answer. “I have never discriminated on the basis of sexual preference and would never discriminate on the basis of sexual preference.” While the answer might seem straight-forward, the language Barrett uses is inherently homophobic and speak to her understanding of LGBTQ+ rights.
Shortly after Barrett's use of “sexual preference” in her response, LGBTQ+ organizations began to call out her comments as a dog whistle. “The term 'sexual preference' is used by opponents of equality to suggest that being #LGBTQ is a choice,” LAMBDA Legal tweeted. GLAAD’s media reference guide also refers to “sexual preference” as an incorrect way to refer to orientation.
According to LAMBDA Legal, using words like “choice” and “preference” have long been the cries of hate groups who seek to denounce the rights of LGBTQ+ people. Not only is the term “sexual preference” dismissive, but “sexual orientation” is a legal term under many anti-discrimination laws, while “sexual preference” is not. Barrett, who has practiced law for over two decades, undoubtedly knows this.
Language like this is famously referenced by Alliance Defending Freedom (ADF) — a law firm that not only opposes equal rights for LGBTQ+ people but also fully supports the criminalization of homosexuality. Gillian Branstetter of National Women's Law Center, explained that ADF "distinctly tells its staff to avoid using 'sexual orientation' and instead use 'sexual preference,'" just like Barrett. A law professor at Georgia State University, Anthony Kreiss, weighing in on the language choice, also tweeted, “ACB using the phrase ‘sexual preference’ is telling on herself.”
While Barrett claims she would never discriminate, her history around LGBTQ+ issues says otherwise. From 2014 to 2017, Barrett sat on the board of trustees of Trinity Schools Incorporated, a school that refused to accept the children of unmarried couples, which also targeted same-sex couples. Moreover, Barrett was a legal fellow at ADF, but when asked by Senator Patrick Leahy if she was aware of their decades-long fight against marriage equality at today’s hearing, Barrett responded that she wasn’t. Alan Sears, the former leader of ADF is infamous for openly comparing gay and lesbian activists to “Nazis,” and likened the social recognition of gay and lesbians to a “new promotion of pedophilia.” In 2017, she was also questioned by Al Franken on her ties to the group, and pleaded ignorance of their homophobic work then, too.
LGBTQ+ advocates may have even more of a reason to fear Barrett's views on larger rights issues, given a lecture she gave at Jacksonville University prior to the 2016 election. During her talk, she said it would be an interpretative “strain” to extend Title IX to protect trans people. “Maybe those arguing in favor of this kind of transgender bathroom access are right. But it does seem to strain the text of the statute to say that Title IX demands it, so is that the kind of thing that the Court should interpret the statute to update it to pick sides on this policy debate? Or should we go to our Congress?”
Ultimately, while there’s still much left to be desired from Barrett in the way of explicit stances on same-gender marriage, trans rights and more, she's signaling her views to all the right people during this hearing. And currently, the only people she’s finding favor with in her choice of words is those on the far right.