Questions Surround Trump's Likely SCOTUS Pick on LGBTQ Issues

by Kilian Melloy

EDGE Staff Reporter

Monday September 21, 2020

In this May 19, 2018, file photo, Amy Coney Barrett, United States Court of Appeals for the Seventh Circuit judge, speaks during the University of Notre Dame's Law School commencement ceremony at the university, in South Bend, Ind.
In this May 19, 2018, file photo, Amy Coney Barrett, United States Court of Appeals for the Seventh Circuit judge, speaks during the University of Notre Dame's Law School commencement ceremony at the university, in South Bend, Ind.   (Source:Robert Franklin/South Bend Tribune via AP, File)

Uncertainty surrounds the views about LGBTQ issues held by possible Supreme Court nominee Judge Amy Coney Barrett, a 2017 Trump appointee to the federal bench.

President Donald Trump has indicated that he will nominate a replacement for late Supreme Court Justice Ruth Bader Ginsberg this week, and has said that his pick will probably be a woman, NBC News reports. Barrett is seen by many to be first among the possible candidates.

At age 48, Barrett could remain on the Supreme Court bench for thirty or forty years, media sources note. And her conservative views and Roman Catholic background have alarmed reproductive rights advocates. But there is little concrete evidence at this point about how Barrett might rule if, for example, the court were to reconsider Obergefell v. Hodges, the 2015 case that led to marriage equality becoming legal in all 50 states.

Forbes notes that Barrett is a self-described "originalist," meaning that she tends to look at the Constitution from the lens of how it's thought America's Founding Fathers viewed legal and social issues. Moreover, Barrett is a "textualist," which is to say that she takes the Constitution as it is written, rather than trying to interpret its meanings in a broader context.

Barrett added her name to a 2015 letter from Catholic women to church officials that stated "marriage and family [are] founded on the indissoluble commitment of a man and a woman," a rare instance in which her public remarks might lend some insight into how she could approach legal matters of concern to the LGBTQ community.

A 2017 letter from Lambda Legal to Senate Committee on the Judiciary chair Charles Grassley opposing Barrett's confirmation to the federal bench took note of that missive to church officials, and questioned whether Barrett "would be guided by the law or by her personal religious beliefs as a judge."

The Lambda Legal letter pointed out that Barrett has declined to specify which, if any, court rulings regarding LGBTQ Americans and their rights she would regard as "superprecedents" - that is, Supreme Court rulings that she would not wish to reverse even if she personally disagrees with them.

One the other hand, NBC News reports, when pressed about how her religious convictions might color her judicial reasoning, Barrett told Sen. Diane Feinstein in 2016, "It's never appropriate for a judge to impose that judge's personal convictions, whether they arise from faith or anywhere else, on the law."

Some insight might also be gleaned from statements Barrett has made about religious convictions potentially clashing with a duty to weigh cases from a strictly legal, rather than a personal, point of view. Heavy.com reports that a paper Barrett co-authored about a theoretical Catholic judge's moral dilemma when considering a case related to capital punishment (which Catholic dogma teaches is wrong), Barrett and her co-author reasoned that "Judges cannot - nor should they try to - align our legal system with the Church's moral teaching whenever the two diverge." However, the paper also suggested that a judge's Catholic convictions would not, in and of themselves, be grounds for recusal in such cases.

Lambda Legal also pointed to Barrett's having delivered a lecture under the funding auspices of Alliance Defending Freedom, a legal group known to be opposed to LGBTQ rights. Lambda Legal slammed what it called Barrett's "profound lack of judgment" in delivering the lecture.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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