President Donald Trump nominated federal Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court Saturday, a choice LGBTQ rights groups are concerned could lead to a reduction in the rights of LGBTQ Americans.
The Supreme Court has historically been important for the advancement of LGBTQ rights, with its rulings giving gay and lesbian people marriage equality and recently, protecting queer and trans people from employment discrimination under federal law.
And there are a number of important cases soon to come before the court; for example, Fulton v. City of Philadelphia is set to be heard the day after Election Day. That case, in which a religious adoption agency is seeking the right to turn away LGBTQ couples, will determine whether taxpayer-funded organizations are allowed to discriminate against LGBTQ people.
Senate Republicans have already promised a speedy confirmation process to install Trump’s nominee before the election, suggesting Barrett will soon be on the Supreme Court.
Barrett is a Catholic and former Notre Dame law professor; she has not said how she would rule in cases about LGBTQ rights, but she has spoken and written extensively about her conservative view on reproduction and sexuality.
And these past remarks have some of her critics concerned that she will swing the balance of the court toward a more conservative agenda on issues of LGBTQ rights.
What we know about Barrett’s record on LGBTQ rights
As Vox’s Ian Millhiser has explained, while Barrett has not served long as a federal judge, and thus does not have as long a judicial record as many Supreme Court nominees. However, as a law professor at the University of Notre Dame, “she frequently weighed in on many of the cultural fights that animate religious conservatism.”
One of these is the issue of LGBTQ rights, which has been a long and evolving debate for conservatives, many of whom have fought against policies such as trans people using the bathrooms that align with their gender identity and transition care for trans teens.
Some of Barrett’s most notable comments on the issue came during a lecture she gave at Jacksonville University ahead of the 2016 presidential election, while she was a professor at Notre Dame. In that lecture, she defended the dissenters in Obergefell v. Hodges, the landmark Supreme Court ruling which made marriage equality the law of the land, as well as suggesting the Title IX rights afforded to transgender people ought to be reviewed by lawmakers.
“Maybe things have changed so that we should change Title IX,” Barrett said during the lecture. “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?”
Also concerning LGTBQ advocates is that Barrett — who is Catholic — signed a letter in 2015 addressed to Catholic bishops that detailed her personal beliefs, and that included a statement about “marriage and family founded on the indissoluble commitment of a man and a woman.”
This, Millhiser notes, would seem to “suggest that Barrett personally opposes marriage equality — and potentially opposes extending other rights to LGBTQ people.”
In her Jacksonville University lecture, Barrett similarly deployed language suggesting an adversarial stance toward trans issues by misgendering transgender women, calling them “physiological males.”
This is one statement, but to many advocates her words seem ominous for the nascent transgender rights movement, which scored a big win at the high court this June in Bostock v. Clayton County, which determined that trans people are protected from employment discrimination under federal civil rights law.
The Human Rights Campaign, for instance, took issue with Barrett ahead of her official nomination, highlighting her Jacksonville University speech. In a statement Friday, Alphonso David, president of the Human Rights Campaign, said, “If she is nominated and confirmed, Coney Barrett would work to dismantle all that Ruth Bader Ginsburg fought for during her extraordinary career.”
Of concern to activists like David is that Bostock isn’t the only trans rights case that will hit the Supreme Court under the next justice’s tenure. The court will be called upon to rule on several big legal battles brewing for years, over issues such as transgender student bathroom rights, or trans women participating in women’s sports.
Should Barrett be confirmed, her work on the court may depart from her personal views. However, as Millhiser writes, her personal and professional thinking has aligned in the past:
Barrett’s limited judicial record suggests that her approach to constitutional interpretation aligns with her conservative political views. In Planned Parenthood v. Box (2019), Barrett joined a brief dissent arguing that her court should rehear a case that blocked an anti-abortion law before that law took effect.
That opinion argued that “preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure” — suggesting that Barrett would have prevented her court from blocking the anti-abortion law at the heart of that case if given the chance.
And it is this judicial record, limited though it is, that has led activists to express concern Barrett’s appointment could limit LGBTQ rights in future rulings.
Source: vox.com, Katelyn Burns, September 26, 2020
Trump has nominated anti-LGBTQ advocate Amy Coney Barrett for the Supreme Court
Trump has announced his nominee for the Supreme Court – Amy Coney Barrett, a darling of conservatives and the anti-gay, anti-abortion right.
Following Justice Ruth Bader Ginsburg’s death last week, President Donald Trump wasted no time in nominating a replacement. With the presidential election looming, Trump hopes to fill his third seat on the highest court in the land as it may be his last opportunity if Joe Biden is elected on November 3.
If Barrett is confirmed, it would give the 9-judge court a six to three conservative majority. That will have major impacts on the future of LGBTQ equality, which Ginsburg championed and helped usher in during her 25 years on the court.
Trump, who is languishing badly among female voters, clearly hopes his choice of Barrett will boost his standings in the polls. But the staunchly anti-abortion and anti-gay jurist is unlikely to do more than solidify his standing with his right-wing base. Polls show a majority of Americans believe the next president should determine Ginsburg’s replacement.
Barrett, considered an “originalist” who claims to strictly interpret the Constitution as she thinks it intended in 1787, was confirmed to the U.S. Court of Appeals in 2017. At that time, she came under fire for signing onto a 2015 letter opposing marriage equality by the Ethics & Public Policy Center for Catholic Women, in response to the Obergefell v. Hodges Supreme Court ruling that made it the law of the land. If confirmed by the Senate, Barrett will be the sixth Catholic on the high court.
Her conservative interpretation of the Bible, which she uses in interpreting the Constitution, came up in her Senate confirmation hearings, with Sen. Dianne Feinstein charging that “the dogma lives loudly within you.”
A former clerk of anti-gay Supreme Court Justice Antonin Scalia, Barrett’s opposition to marriage equality, Obamacare, and abortion rights are redeeming qualities for conservatives but not so much for the majority of the nation, which overwhelmingly supports all three.
In preparation for Barrett’s nomination, Lambda Legal CEO Kevin Jennings said in a statement that “it is impossible to overstate how much is at stake, not only for LGBTQ people and everyone living with HIV, but for our entire country.
“If confirmed, Judge Amy Coney Barrett will unleash a Supreme Court majority that is hostile to all of our basic civil rights, and the impact will be felt for decades,” Jennings continued, noting that Barrett’s “personal belief that marriage is between a man and a woman, coupled with her unwillingness to affirm that the Supreme Court’s decision making marriage equality the law of the land is settled law, should sound the alarm for anyone who cares about LGBTQ people and their families.”
Lambda also pointed to her role in refusing to hear a case involving the segregation of Black workers at the company AutoZone and her speeches at the Alliance Defending Freedom (ADF), a SPLC-designated hate group, as red flags that should be explored at her confirmation hearings.
The senate GOP majority’s eagerness to approve a new justice comes in contrast to President Barack Obama’s futile attempt to get a Senate hearing for Merrick Garland in 2016, following the death of Justice Antonin Scalia. At that time, Republicans refused to vote on Garland’s nomination and kept it off the Senate floor until Trump came into office 10 months later, claiming that the new president should decide the fate of the court.
This time, Republicans have already made it known that they will vote on Trump’s nominee – which is being made 38 days before the 2020 election. Some have even voiced support for the nominee before hearings on her qualifications and her claim to be able to interpret the will of the authors of the U.S. Constitution verbatim.
Only 51 Senate votes are needed to confirm a Supreme Court pick and Vice President Pence can cast the deciding vote if necessary. There are currently 53 Republican senators. Two Republicans have said they will decline to vote before the election determines the next president.
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