Over 150 Civil Rights and Public Interest Groups Urge Senate to Oppose Amy Coney Barrett’s Supreme Court Nomination

Read the full letter here

Excerpt below regarding Judge Amy Coney Barrett’s stance on LGBTQ rights:

Judge Barrett’s public comments demonstrate opposition to constitutional protection for marriage equality. In a talk she gave in November 2016, she appeared to be critical of Obergefell v. Hodges – the landmark decision that established marriage equality for same-sex couples in America – and supportive of the dissent, which said marriage equality should be determined on a state-by-state basis.

According to Judge Barrett, the Obergefell dissent “said that 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.”

Later in the speech, when asked about the impact of the upcoming presidential election on the courts, Judge Barrett said: “It is a consequential moment, and the who decides question just as a personal matter is really important to me. And so I guess I worry a lot about the who decides question, about our decisions, and my voice kind of getting taken away depending on what happens….”

But no one can “decide” to deny people their fundamental human rights, because we have a Constitution that protects everyone. A justice who does not recognize this would put LGBTQ people at the mercy of those who have long targeted them for discrimination and could adopt what Justice Ginsburg called a “skim milk” approach to marriage for same-sex couples as challenges to the rights, benefits, and obligations of marriage wind through the courts.

At the same 2016 event, Judge Barrett opined that the sex discrimination provisions of Title IX should not extend to transgender people. Discussing a case that had come before the Supreme Court about whether a transgender student should be permitted to use the restroom that correlated with his gender identity, Judge Barrett said “it does seem to strain the text of the statute to say that Title IX demands it.”

She said that if policymakers want to add gender identity to Title IX, they should amend the statute. Her position is in direct contradiction to the Supreme Court’s text-based interpretation of an analogous statute, Title VII, in Bostock v. Clayton County, where the Court ruled 6-3 that the prohibition of employment discrimination on the basis of “sex” should be read to include gender identity and sexual orientation.