What are Amy Coney Barrett’s views on gay marriage and LGBTQ rights? Will having her on the Supreme Court affect the future of gay rights and LGBTQ laws in the United States? Some viral social media posts about her views are spreading false information.
Here’s what we know so far about her viewpoints.
Barrett only became a judge in October 2017, so there aren’t a lot of rulings to give a strong idea of how she would rule over gay rights, although she’s known to be a conservative in her viewpoints. She was confirmed as a judge on the Seventh Circuit Court of Appeals on October 31, 2017. Prior to that, she was a professor of law at the University of Notre Dame from 2002 to 2017 and clerked for Justice Antonin Scalia.
During her time on the 7th Circuit Court of Appeals, she’s authored quite a few majority opinions and dissents, but nothing that gives a clear view on how she would rule on gay rights’ questions.
She Signed a Letter Indicating the Church Taught That Marriage Is for a Man & Woman but Did Not Indicate if She Would Rule Based on That Belief
In October 2017, Lambda Legal sent a letter to Charles Grassley and Dianne Feinstein, asking them to oppose Barrett’s nomination. This letter was based, in part, on Barrett’s signing a letter from October 2015 written to the “Synod Fathers from Catholic Women.” This letter read, in part, “We give witness that the Church’s teachings … on marriage and family founded on the indissoluble commitment of a man and a woman … provide a sure guide to the Christian life…”
The letter also talked about the importance of protecting the poor, along with a number of other issues. But some have expressed concern on whether her personal beliefs regarding marriage might bleed into her rulings.
The Lambda Letter went on to point out that in 2017, she was asked if any landmark LGBT decisions would count as “superprecedents.” (She has said that “no serious person would propose to undo (superprecedents) even if they are wrong.”) She said she had “not undertaken an independent analysis of whether any particular case qualifies as superprecedent.” This caused some people in the LGBT community to express concern that she might not be opposed to the possibility of undoing the Supreme Court’s decision on gay marriage, for example. However, she’s made no indication how she would rule in such a situation.
Barrett also once gave a lecture that was paid for by the Alliance Defending Freedom, which Lambda Legal states is “arguably the most extreme anti-LGBT legal organization in the United States.” However, Barrett later said during her federal confirmation hearing that she had not vetted the group and, although she was aware in general that they supported traditional marriage, she didn’t inquire into whether they were trying to end same-sex marriage, HuffPost reported.
She Never Said ‘Gays Have a Right to Be Discriminated Against’ — That Was a Social Media Hoax
A social media post was circulating that claimed Barrett said “gays have a right to be discriminated against because they are against God’s wishes.”
Politifact reported that this was a hoax and not a quote from Barrett. In fact, the posts were flagged by Facebook as false.
She Said It Was a ‘Strain on the Text’ to Say Title IX Protection Extended to Transgender Americans but Also Said ‘Maybe Those Arguing in Favor of This … Are Right’
In a 2016 lecture at Jacksonville University, Barrett said that it was a “strain on the text” to say that Title IX protections extended to transgender Americans, HRC reported in an article that said she was a threat to LGBTQ rights. In the same quote, Barrett also said that it was a public policy debate we need to have and that those arguing in favor of transgender bathroom access “maybe…are right.”
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 that 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. 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.
In the same lecture, she said it might not be the Supreme Court who should decide questions on gay marriage, but rather states.
[Chief Justice Roberts, in his dissent,] said, 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.
She Has Said in Some Cases, the Supreme Court Can Overrule Previous Supreme Court Decisions
In a journal article that she wrote in 2013, Barrett said that a Supreme Court ruling could be overruled if it doesn’t match current Justices’ interpretation of the Constitution.
Does the court act lawlessly—or at least questionably—when it overrules precedent? I tend to agree with those who say that a justice’s duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it. That itself serves an important rule-of-law value.
This was not a statement about gay marriage, but a general statement about overruling previous decisions.
Barrett Co-Authored a Paper That Says ‘Judges [Should Not] Align Our Legal System With the Church’s Moral Teachings Whenever the 2 Diverge’
It’s unclear how Barrett would rule in LGBT cases. She co-authored a paper titled “Catholic Judges in Capital Cases,” which explored the dilemma Catholic judges may face in capital death cases that run against their own religious beliefs. The paper argued that merely identifying a judge as Catholic isn’t enough for recusal, but Catholic judges might find it “morally impossible” to enforce capital punishment in cases such as sentencing. In those situations, it might be better for them not to participate.
The paper concluded:
Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot-nor should they try to-align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect.
From that paper, at least, it appears that she might not try to conform her legal opinions to her religious beliefs if they diverged. However, she might step back and recuse herself if she felt a legal decision conflicted with her religion.
She said during her confirmation hearing that if a judge’s morals run against a potential ruling, he might want to step back and recuse himself.
Were I confirmed as a judge, I would decide cases according to the rule of law beginning to end. In the rare circumstance that might ever arise, I can’t imagine one sitting here now, where I felt some contentious objection to the law, I would recuse. I would never impose my own personal convictions upon the law.
In her Senate confirmation hearing when asked about a report that implied she didn’t believe a judge should faithfully apply the Constitution when she disagrees with them, Barrett said that was not accurate. She said: “I totally reject and have rejected throughout my entire career the proposition that the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.”
She addressed this yet again during the hearing when she said: “If you’re asking whether I take my Catholic faith seriously, I do, though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”