U.S. Supreme Court nominee Amy Coney Barrett, whose confirmation hearing began Monday, predicted in 2016 that "religious exemption cases" were going to be big in the coming years, as well as cases deciding whether there can be "conscience exemptions" for doctors who don't want to perform gender transition surgery.
She made these remarks just days before the 2016 presidential election. Barrett was a professor of law at the University of Notre Dame. But the main concern she had was "who decides?" Would courts decide the nation's controversial issues or would legislatures?
Barrett was speaking to an audience at the Jacksonville University Public Policy Institute. Many different controversial issues came up, including a transgender bathroom ban in North Carolina, same-sex marriage, abortion, the right to die, and religious exemptions. Barrett was as careful and guarded in her remarks as any court nominee, even though she was not on the list of potential Supreme Court nominees that then-presidential candidate Donald Trump had released.
But Barrett was clearly well-informed about the sensitivity and complexity of the cases that would soon be pressing the Supreme Court, and she had a strong opinion about who should be nominated.
"We shouldn't be putting people on the courts that share our policy preferences. We should be putting people on the court who want to apply the constitution," said Barrett. "…When the constitution demands that minority rights be protected, that's what we want justices to do. That's their job."
The forum moderator asked Barrett to explain the Supreme Court's decision in Obergefell v. Hodges, the 2015 ruling that struck down state bans on same-sex couples to marry. Barrett briefly discussed the legal issues in the case then expressed a lament.
"People were presenting this as a vote for or against same-sex marriage," said Barrett. "That's not what the opinion was about. It was about who gets to decide whether we have same-sex marriage or not.
"The majority [in the Obergefell decision] said the right [to marry] was guaranteed by the constitution so the states were not free to say marriage had to be a man and a woman," said Barrett. "The dissenters weren't arguing against same-sex marriage but that it was not for the court to decide."
During her discussion of "who decides," Barrett brought up a case testing whether Title IX of the Education Amendments Act —which prohibits discrimination based on sex in education — might be read to require that a transgender person be able to use a bathroom designated for the gender with which they identify. At the time of the discussion, there was a national spotlight on a controversial new state law in North Carolina that barred transgender people from using a public restroom for the gender they are living.
Barrett said the Obama administration's position on the issue, that Title IX prohibits discrimination against transgender people, was a "huge shift" from prior interpretations of the statute.
"When Title IX was enacted, it's pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result at the time. Maybe things have changed so that we should change Title IX. Maybe those arguing in favor of this kind of transgender bathroom access are right," said Barrett. "That's a public policy debate to have. 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 kind of update it and pick sides in this public policy debate…or should we go to Congress….and say, if this is the policy we want to have now, [we need] new recognition of the rights of transgender people."
As part of a 2008 symposium at Notre Dame on the doctrine of "stare decisis," the legal principle that courts decide disputes based on prior decisions, Barrett said it is "not a hard and fast rule." The "trick" for those who want to reverse a Supreme Court decision, she said, "is offering the Court an opportunity to do so." One way of doing this, she said, could be by "acting in a way that contradicts the Court's then-existing jurisprudence."
The Human Rights Campaign posted a 12-page paper on the first day of Barrett's confirmation hearing, expressing concern that Barrett has "specifically questioned the result and role of the Supreme Court in Obergefell."
"Unfortunately, we still face a concerted effort not only to roll back existing civil rights protections, but also to enact laws and policies that actively target LGBTQ people and seek to make it impossible for them to participate safely or openly in the shared civic life of this country."
"If confirmed, she would advance a legal philosophy that yielded reliably and rabidly anti-LGBTQ rulings and dissents during Justice Scalia's tenure, including in Lawrence v. Texas, Romer v. Evans, and Obergefell v. Hodges," said the HRC report.
Barrett served as a clerk to Justice Antonin Scalia from 1998 to 1999, and she has expressed admiration for his legal approach, one of interpreting the U.S. Constitution as it was understood by the original authors.
"We should take Barrett at her word: she would mirror Justice Scalia, and thereby attempt to regress constitutional law and roll back basic rights for the LGBTQ community and beyond," said the HRC report.
Barrett comes to the Supreme Court nomination after serving just two years as a judge on the Seventh Circuit U.S. Court of Appeals. She did not weigh in on any LGBT-related cases during that time. The Senate confirmed her nomination to the Seventh Circuit on a vote of 55 to 43. Senator Lindsey Graham, chairman of the Senate Judiciary Committee, said he expects to have two more days of hearings on Barrett's confirmation and a committee vote on October 22. Senate Majority Leader Mitch McConnell has reportedly set October 29 for a floor vote on Barrett's confirmation.
"I think it is outrageous that the Republicans are using brute political power to force her onto the Court in the middle of an election, and after stealing an appointment from President Obama," said Shannon Minter, legal director for the National Center for Lesbian Rights. "I think she is an extremely conservative judge whose presence on the Court will likely pose a threat to many vulnerable groups, including LGBTQ people."
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