Amy Coney Barrett will destroy marriage equality

Her regard for LGBTQ rights and her views on the Obergefell decision are quite clear

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Judge Amy Coney Barrett photo: Rachel Malehorn

This is a five-alarm fire for LGBTQ Americans.

Donald Trump’s pick for the Supreme Court justice to fill the seat left by the death of Ruth Bader Ginsburg is Amy Coney Barrett. A judge on the 7th U.S. Circuit Court of Appeals — put there by Donald Trump — Barrett’s legal views have been quite transparent when it comes to LGBTQ equality. And let’s be clear: This is about her professional actions and legal opinions, not her personal beliefs.

The fact that Barrett’s faith derives from ultra-conservative Catholic doctrines that most mainstream Catholics don’t follow of course shouldn’t in and of itself disqualify her. It’s true that Barrett belongs to a small religious sect called Praise of People. Per The New York Times:

Some of the group’s practices would surprise many faithful Catholics. Members of the group swear a lifelong oath of loyalty, called a covenant, to one another, and are assigned and are accountable to a personal adviser, called a “head” for men and a “handmaid” for women. The group teaches that husbands are the heads of their wives and should take authority over the family.

Current and former members say that the heads and handmaids give direction on important decisions, including whom to date or marry, where to live, whether to take a job or buy a home, and how to raise children.

But that’s her life, and she’s welcome to lead it any way she wants — as long as her religious beliefs don’t dictate her legal decisions. Anyone who says that Democrats criticizing Barrett’s views are engaging in “anti-Catholic” attacks is being deceptive and flat out ridiculous, as the Democrats’ own presidential candidate, Joe Biden, is an observant Catholic, as is the Speaker of the House, Nancy Pelosi. And of course, Supreme Court Justice Sonja Sotomayor, now the most liberal member of the court, is Catholic.

Barrett appears to describe herself as an orthodox Roman Catholic (small “o,” not to be confused with the Orthodox Catholic Church) in a paper she co-wrote in 1998 in which she concludes some Catholic judges may have to recuse themselves in death penalty cases. And she appears to recognize the range of beliefs and practices among observant Catholics.

No, the big problem with Barrett is that she is very hostile to LGBTQ equality in both the professional actions she’s engaged in and legal positions she’s put forth. She signed a letter with other Catholic professional women in 2015 written to Catholic bishops asserting that marriage “is founded on the indissoluble commitment of a man and a woman” and — this is the important part — the letter vowed, quoting the pope’s wishes, that the signers will be “an ‘incisive presence’ in the Church, and an ‘effective presence’ in the culture, the workplace, and wherever ‘the most important decisions are taken.’”

Barrett, while a professor at Notre Dame Law School before she was on the appeals court, took money from a legal group determined to overturn same-sex marriage, re-criminalize homosexuality in the the United States and around the world, equates homosexuality with pedophilia, and backs forced sterilization of transgender people abroad.

In giving that lecture to the Alliance Defending Freedom, a legal group that has been the greatest threat to LGBTQ equality in the Trump era, defending those who’ve desired to legally discriminate based on their religious beliefs, she exhibited her animus and her goal. Her claim before the Senate in 2017 that she didn’t know the group’s true agenda when she gave the lecture shows she’s a liar and has a profound lack of judgement, or doesn’t engage in much scrutiny about groups she speaks before, either of which should disqualify her from the Supreme Court. (If you have some time, watch the full clip here of Senator Al Franken effectively exposing this, even if you have to come back. It’s quite illuminating.)

Barrett also has little if any regard for precedents if the precedent doesn’t comport with her beliefs.

Columnist Ruth Marcus in the Washington Post notes “no nominee has openly endorsed views as extreme as Barrett’s on the doctrine of stare decisis, the principle that the court should not lightly overrule its precedents.” In a 2013 law review, Barrett wrote, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

That is enormously disturbing considering what Barrett said about Chief Justice John Robert’s hostile dissent in the Obergefell marriage equality decision of 2015: “[Chief Justice Roberts, in his dissent,] said, those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide...So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”

Prior to being on the Supreme Court, Justice Neal Gorsuch expressed this opinion too, long before the Obergefell decision. It’s a “states rights” stance about a national civil rights issue grounded in the Equal Protection Clause of the Constitution, and is the same stand hardline conservatives take on abortion and would like to see happen when they overturn Roe V. Wade: Send it back to the states, where a slew of states will outlaw all abortions immediately.

How would that work with marriage equality now, when so many gay and lesbian couples are married in every state across the country and with those marriages, like heterosexual marriages, being recognized across state lines? It seems preposterous, but to anti-LGBTQ conservatives, those are nitty gritty details to work out later. They already tried to do this early on in the marriage equality movement — before the Supreme Court ruling brought marriage equality to every state — attempting to contain it to states that passed equality laws or had pro-equality court rulings, and not really figuring out the rest.

Gorsuch, since joining the court, has already opened up a pathway for states on this, in a dissent he wrote in 2017. The U.S. Supreme Court overturned an Arkansas Supreme Court ruling that allowed the state to keep both parents in a same-sex couple off of a birth certificate for their child, unlike in the case of a heterosexual couple, where a married woman’s husband would be on the birth certificate even if he were not the biological father or the couple had conceived using a sperm donor.

In his dissent, joined by Clarence Thomas and Samuel Alito, Gorsuch, according to Harvard law scholar Noah Feldman, invited a challenge to Obergefell:

…Gorsuch -- with two more votes on his side -- wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality.

It’s notable that John Roberts, who wrote the stinging Obergefell dissent, sided with the liberals in this case. He believes Obergefell is the law of the land — precedent — even if he dissented in the original case. But Amy Coney Barrett clearly disagrees with that. Brett Kavanaugh has joined the court since that 2017 case, and he hasn’t shown deference to precedent (and Kavanaugh was staff secretary in George W. Bush’s White House and played a role in Bush’s push for a federal marriage amendment.)

It’s easy to see how, next time, Gorsuch will have Barrett and Kavanaugh on his team, and the five votes he needs. Gorsuch’s majority opinion this year in the case that decided LGBTQ people are protected from employment discrimination in Title VII of the 1964 Civil Rights Act shouldn’t confuse anyone or give comfort. He was being consistent with his adherence to “texualism,” believing the text of a statute should be followed no matter what the writers of the law intended. (The Civil Rights Act says discrimination based on “sex” is outlawed, and that term, today, applies to sexual orientation and gender identity even if the writers of the law didn’t intend that).

It was laudable that Gorsuch was consistent in that case (unlike other anti-LGBTQ justices who are textualists, like Alito), but he did put a caveat in the decision that will allow for exemptions based on “religious liberty”:

We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society…[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases, too.

Gorsuch has long been a “religious liberty” fanatic, and in fact this is how a variety of protections for LGBTQ people will be stripped as well as how many of the Trump administration actions against equality for gay people and transgender people in particular will be upheld by the high court: As religious exemptions.

So marriage equality will be hollowed out — made into second class marriage — while transgender people will be treated with hostility and derision. The Human Rights Campaign notes Barrett doesn’t believe Title IX protections apply to transgender people and she has referred to transgender women as “physiological males,” misgendering them:

People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present.

It’s not hard to see how, with Barrett joining the court’s other religious conservatives, Americans who are anti-LGBTQ who couch their views as religious beliefs will have special rights afforded to them to discriminate against LGBTQ people and others. That’s the ultimate goal of the religious right — the agenda for decades — and it will have profound and disastrous effects on equality for queer Americans, lurching the court to an extreme that is totally out of step with the majority of Americans.

It’s a complete hijacking of the Supreme Court by Trump and the GOP — and a clear majority of Americans also believe the next president should be filling this seat. It’s another reason why Democrats must win back the Senate and the White House, and end the filibuster and expand the Supreme Court.