My takeaway from last week’s Amy Coney Barrett hearings

By Jon Davidson • October 19, 2020 • 10:30 am

The message below is exclusive analysis from our Chief Counsel Jon Davidson, circulated to our Supreme Court Action Team when the Amy Coney Barrett hearings concluded. If you’d like to receive more updates like this, sign up here.

After four days of hearings, we don’t have much new information on how Judge Amy Coney Barrett will interpret constitutional provisions and laws, and apply precedents that protect LGBTQ people from discrimination.

There were a few notable moments. At one point she used the term “sexual preference” while assuring the committee she had never engaged in anti-LGBTQ discrimination. She later apologized. “Sexual preference” is offensive to many LGBTQ people because it implies our orientation is a choice, and therefore could be changed.

During the same exchange, she would not say whether she agreed with the dissenting opinions in two key marriage equality cases, Obergefell v. Hodges and US v. Windsor. Previously, she has said she opposes the outcome in Obergefell. She also refused to say whether she believed same-sex relationships could be criminalized again, something the Supreme Court rejected nearly 20 years ago in Lawrence v. Texas.

This uncertainty around whether LGBTQ issues will get a fair hearing before the Court makes it clearer than ever that we need a federal nondiscrimination law to explicitly and fully protect us from discrimination.

Every year, our basic freedoms are litigated before the Supreme Court. This year will be no different. If she is confirmed, Judge Barrett could be seated by November 4, in time to hear the next landmark case for LGBTQ freedom, Fulton v. City of Philadelphia. The case centers on a religious foster care agency that refuses to work with same-sex couples, violating a City contract into which the agency voluntarily entered and received taxpayer funds to carry out.

A bad decision could give private agencies across the country a broad license to discriminate—not just against LGBTQ people, but also against people of faith and others—while providing a wide range of government services with taxpayer money. It could even undercut the enforceability of ALL of this country’s existing nondiscrimination laws.

What little we know about Judge Barrett’s position on LGBTQ rights is concerning, and introduces even more uncertainty into how our rights will fare before the Court. This is just one more reason Congress must pass the Equality Act to protect LGBTQ Americans fully and explicitly from discrimination nationwide.

As we head into a final Senate vote on Judge Barrett, email your Senators and remind them how high the stakes are for LGBTQ freedom—and that they must make passing the Equality Act a priority.

No one should have to live with this kind of uncertainty about whether their basic rights will be respected. We need express federal protections—especially for the Black and Brown members of our community, who carry the burden of discrimination more heavily.

Thanks for speaking out.

Jon Davidson,
Chief Counsel

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