Unlike some other candidates nominated to the federal bench by President Trump, Judge Amy Coney Barrett had no problem at her recent confirmation hearing endorsing Brown v. Board of Education, the Supreme Court’s famous 1954 desegregation decision.
Nor Loving v. Virginia, which 13 years later said states could not prohibit interracial marriages; Barrett declared that it “follows directly” from Brown.
But she hit the brakes when asked about Obergefell v. Hodges, the court’s 2015 decision saying same-sex couples have a right to marry.
Barrett’s refusal to say Obergefell was correctly decided frustrated Senate Democrats and alarmed LGBTQ activists, who worry about her elevation to a Supreme Court that has only three justices remaining from the five-member majority in the 2015 decision.
Additionally, Barrett declined to pass judgment on other court precedents that have been -instrumental in what has been a steady, step-by-step progression in the Supreme Court’s embrace of gay rights over the past -quarter-century.
“She defended the dissenters in the court’s landmark marriage-equality case,” said Human Rights Campaign President Alphonso David, who has called for the Senate to reject Barrett’s nomination.
“She refused to say whether the landmark case Lawrence v. Texas [decriminalizing homosexual intimacy] was correctly decided. She sidestepped questions about preserving LGBTQ nondiscrimination protections. And she refused to denounce prior writings and statements that, if implemented through the court, could result in a systematic regression of LGBTQ rights.”
If Barrett is confirmed Monday, it might not take long for her views to become more transparent.
The day after Election Day, the court will hear one of its most important cases of the term, and one that combines two issues prominent in Barrett’s confirmation hearings: religious rights and anti-discrimination laws.
The justices will take up a legal fight from Philadelphia, where city officials ended a contract with Catholic Social Services to provide foster care services because the agency said it would not accept applications from married same-sex couples.
The court accepted Fulton v. City of Philadelphia before Justice Ruth Bader Ginsburg’s death last month, and there might be enough votes to reverse the appeals court decision in favor of Philadelphia even without Barrett on the bench.
But it provides the court with the potential for a broad ruling about when religious organizations deserve exemptions from anti-discrimination laws that the groups say would cause them to violate deeply held beliefs, such as what constitutes a marriage.
It is a question the court left hanging in 2018, when it found other reasons to rule for a Colorado baker who cited his religious beliefs when he refused to design a wedding cake for a same-sex couple. Barrett mentioned Masterpiece Cakeshop v. Colorado Civil Rights Commission when Sen. Cory Booker (D-N.J.) questioned her about whether a hairdresser or florist could refuse wedding services to an interracial couple.
“It sounds like you’re on your way to talking about Masterpiece Cakeshop and some of the cases that are very hotly contested and winding their way through the courts,” Barrett said. “And so I want to make sure that I’m not in a position where I’m eliciting any views that would bear on litigation that’s very active.”
Republicans defended Barrett as simply being careful about controversies that are sure to come to the court, and compared her responses to those of Ginsburg, who declined at her confirmation hearing to give “previews” of her views on cases, and Justice Elena Kagan, who said it was improper to give “thumbs up or thumbs down” on the court’s precedents.
“Every time you ask me a question about whether a case was correctly decided or not, I cannot answer that question,” Barrett said at one point. As a judge on the U.S. Court of Appeals for the 7th Circuit, she is required to follow Supreme Court precedents regardless of whether she agrees with them, she said.
“And were I to be confirmed, I would be responsible for applying the law of stare decisis to all of them,” she added, referring to the court’s process of deciding whether precedents should be respected or overturned.
At the confirmation hearings, Barrett was constantly challenged about her views on the Affordable Care Act; a third challenge to the health-care insurance program is on the Supreme Court’s docket next month. And Democrats and Republicans sparred over whether Barrett’s personal opposition to abortion meant she would overturn landmark decisions guaranteeing abortion rights in Roe v. Wade and Planned Parenthood v. Casey.
But the questioning over gay rights was just as contentious. One reason was Barrett’s past writings as a constitutional law professor at Notre Dame, and another was her relationship with Justice Antonin Scalia, for whom she clerked.
“His judicial philosophy is mine, too,” Barrett said at the Rose Garden ceremony at which Trump announced her nomination.
By that, she said, she meant “a judge must apply the law as written. Judges are not policymakers and must be resolute in setting aside any policy views they might hold.”
But Senate Democrats noted that Scalia had dissented in each of the court’s gay rights cases, once referring to the “homosexual agenda.”
Barrett bristled when Sen. Christopher A. Coons (D-Del.) made the comparison.
“I hope that you aren’t suggesting that I don’t have my own mind, or that I couldn’t think independently, or that I would just decide, like, let me see what Justice Scalia had said about this in the past because I assure you, I have my own mind.” Barrett said. She added: “I share his philosophy, but I have never said that I would always reach the same outcome as he did.”
But Coons and Sen. Richard Blumenthal (D-Conn.) said the way Barrett chose the cases she would endorse is what raised questions. For instance, she would not comment on Griswold v. Connecticut, a case from 1965 that guaranteed a married couple’s right to contraceptives. Other nominees, including Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, said they agreed with the decision.
“It’s not just that Griswold was a landmark case.?.?.?. It anchors a lot of modern liberty interests and personal and family autonomy,” Coons said. “It was extended to the right for women to control their reproductive choices in Roe and in Casey. But it was also extended to support same-sex couple intimacy in Lawrence v. Texas, and ultimately that same-sex couples have an equal right to marry in Obergefell.”
Likewise, Barrett’s reluctance to engage on whether the right of people of different races to marry led to the right of same-sex couples to wed put her on the side of the court’s dissenters in that case.
Justice Anthony M. Kennedy, who retired from the court in 2018, cited Loving more than half a dozen times in his majority opinion in Obergefell, but dissenters in the case said the comparison was off, because Loving did not change the core structure of marriage as between a man and a woman.
“Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was,” Roberts wrote.
Blumenthal and Barrett had an intense interchange on her refusal to endorse Obergefell.
“Your honor, think of how you would feel as a gay or lesbian American to hear that you can’t answer whether the government can make it a crime for them to have that relationship, whether the government can enable people who are happily married to continue that relationship,” Blumenthal said.
“Well, senator, you’re implying that I’m poised to say that I want to cast a vote to overrule Obergefell, and I assure you I don’t have any agenda,” Barrett answered. She told Sen. Dianne Feinstein (D-Calif.): “I fully respect all the rights of the LGBT community. Obergefell is an important precedent of the court. I reject any kind of discrimination on any sort of basis.”
But circumstances beyond Barrett’s control made the issue more relevant.
Earlier this month, Justices Thomas and Samuel A. Alito Jr., two of the dissenters in the case, signaled a desire to revisit the decision.
“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix,” Thomas wrote.
When asked about that at her hearing, Barrett said that only the justices could explain what they meant.
But it was seen as ominous by others, including James Obergefell and Rick Hodges. Hodges was the named defendant in Obergefell’s challenge because of his role in Ohio government. He is a lifelong Republican who has said he hoped his side would lose the case.
The two, linked forever because of the case, came together at a news conference to urge the Senate to vote against Barrett.