Supreme Court nominee Amy Coney Barrett sought to dodge a question Tuesday about her view of the high court's historic 2015 ruling striking down same-sex marriage bans nationwide.
While refusing to answer the question directly, Barrett offered, "I have never discriminated on the basis of sexual preference and would never discriminate on the basis of sexual preference."
That may have seemed anodyne enough to many viewers, but her use of the term sexual preference rather than sexual orientation says everything we need to know about Barrett's social circles and her approach to legal doctrine concerning the rights of lesbian, gay, bisexual, and transgender Americans.
From a social standpoint, only someone stuck in the mindset of last-century anti-LGBTQ dogma would embrace use of the term “preference.” Gay individuals don't wake up one day and decide they prefer dating people of the same sex like they prefer chocolate chip cookies to oatmeal raisin. Did Barrett wake up one morning and decide dating men was a choice for her?
No. But the notion that anyone chooses to be gay or date people of the same sex is not only antiquated, it's the also the baseline that anti-LGBTQ activists have used for decades to advance and defend laws expressly discriminating against gay, lesbian, and transgender Americans. It's the verbiage of someone who lives in a highly conservative social bubble and traffics in anti-gay legal doctrine. The bigoted legal group Alliance Defending Freedom (ADF) was no doubt over the moon with the wink from Barrett.
Indeed, Barrett noted in her financial disclosures for her 7th Circuit nomination that she spoke twice at ADF's Blackstone Legal Fellowship for law students. Reporting by Sarah Posner further clarifies that, in order to get those speaking gigs, Barrett would have been sent the ADF's dos and don'ts for speaking about LGBTQ rights, starting with the notion that they're not constitutionally protected rights, rather they're "demands." Here's Posner writing for Rolling Stone:
But a paper trail shows Barrett would have not only known about ADF’s policy positions, but would have had to agree with them to speak at the seminar. Documents obtained by Type Investigations since that time show that Barrett, while a professor at Notre Dame Law School, spoke twice at Blackstone seminars, in 2013 and 2015, delivering a speech titled, “Construction and/or Interpretation: Navigating the Scylla & Charybdis.” ADF sent faculty emails regarding rules and logistics for the gathering, and thanking them for “your commitment to the Lord’s Kingdom work through Blackstone.” The materials included a confidential “lexicon” containing a list of phrases participants should and should not use when speaking. Participants were told to use the phrase “defending biblical, religious principles, convictions,” but not “bigotry, anti-tolerance;” and to use “demands of/by the homosexual legal agenda, demands of/by advocates of homosexual behavior, special privileges,” but not “homosexual/gay rights, hate-crimes legislation, anti-discrimination laws,” noting that Alan Sears, one of the co-founders of ADF, has written that “the goals and agenda of advocates of homosexual behavior are not ‘rights,’ but ‘demands.’” Similarly, ADF’s lexicon called for using “homosexual behavior,” not “homosexuality or gay,” because “homosexuality is a personal struggle” and “the word ‘gay’ was conceived by advocates of homosexual behavior to destigmatize their behavior and advance their agenda.” Because ADF frequently litigates Supreme Court cases, taking positions against abortion, LGBTQ rights, and church-state separation, it is likely that if Barrett, who is only 48, is confirmed, she will be hearing arguments from ADF attorneys for many years to come.
The ADF is very specific about its framing of LGBTQ issues (i.e., confidential lexicon) precisely to avoid legitimizing the struggle of queer Americans to gain equal rights under the law.
If you believe sexual orientation is a preference, why grant same-sex marital rights to people who could choose otherwise?
And if you believe sexual orientation is a preference, then conversion therapy becomes a legitimate remedy. In fact, perhaps all these state bans on the traumatizing and inhumane use of conversion therapy then infringe on religious liberties.
But Barrett's embrace of anti-gay bigotry isn't just theoretical. A New York Times report on Barrett's faith revealed that she has actually practiced that bigotry while serving on the board of Trinity School—the private school in South Bend, Indiana, that some of her children attend—from 2015 to 2017.
In 2014, the board of trustees of Trinity Schools Incorporated, which also runs two other schools, adopted a policy not to accept children of unmarried couples. Indiana was then in the middle of an intense legal battle to overturn its ban on same-sex marriage.
Jon Balsbaugh, the organization’s president, said the school’s position then and now was that marriage should be between a man and woman, and ex-Trinity staff members said the admissions policy effectively excluded students of gay parents.
Barrett doesn’t appear to have been involved in the inception of the anti-gay policy, but she sat on the board that actively enforced it and explicitly chose to send her children there. So while Barrett may not have directly answered the question about her view of the 2015 Obergefell decision that cemented same-sex marriage rights nationwide, she said everything we need to know.
Preference was not only a dog whistle to anti-LGBTQ conservatives, it's also the legal basis on which they have sought to deprive gay and transgender Americans of numerous constitutional protections and will continue to do so moving forward.
