A day after questioning Amy Coney Barrett, President Trump’s nominee for the U.S. Supreme Court, U.S. Sen. Mazie Hirono (D-Hawaii) said that the appeals court judge’s confirmation to the nation’s highest court will threaten rights and values that progressive communities deeply care about.
“The president made two things really clear when he picked his Supreme Court nominee: He said, ‘I want someone who will strike down the Affordable Care Act. And I want someone who will repeal will go against Roe v. Wade.’ So he’s got that person in Amy Barrett,” Hirono, a member of the Senate Judiciary Committee, said in a call with representatives from the Human Rights Campaign and NARAL Pro-Choice America.
Hirono was critical of Barrett’s approach to questions about important yet controversial issues — which mirrored the behavior of past nominees, liberal and conservative alike — accusing her of hedging on questions that would reveal her judicial ideology.
“She basically wouldn’t answer any questions. And so what we are left with are her stated positions regarding the Affordable Care Act and her anti-choice stance, not to mention that she used the term ‘sexual preference’ twice in response to another question,” Hirono said. “So I brought that up to raise the issue of whether or not she would join two of the really conservative justices — that would be Alito and Thomas — who have already signaled that they would like to have a shot at undoing of Obergefell, which is, of course, the case that authorized gay marriage.”
Casting Barrett as a “clear and present danger” to the fate of the Affordable Care Act, LGBTQ rights, and abortion rights, Hirono also expressed skepticism around Barrett’s views on what decisions constitute precedent. Barrett said in her confirmation hearings on Tuesday that she believes there are seven cases that constitute “super-precedent,” which she defines as decisions concerning views on issues that are “so widely established and agreed upon by everyone, calls for its overruling simply don’t exist.” But neither Roe v. Wade, the landmark abortion case, nor Obergefell v. Hodges, the landmark marriage equality case, are in that canon of cases.
“Her view of precedent, which makes us very nervous about Obergefell, in addition to so many other rights, is that it is a duty of the justice to determine what the Constitution requires or what the Constitution says. And if her assessment of the Constitution is in clear conflict with precedent, she will overturn precedent,” Hirono told LGBTQ advocates on the press call. “So that puts Obergefell right in her sights, in my opinion. She also aligned herself with Scalia, who over the last decade or so has written all of the major dissents on every single gay rights case, the latest being, of course, Obergefell. So she is a danger to all of us on so many fronts.”
Alphonso David, the president of the Human Rights Campaign, blasted Barrett for feigning ignorance about the anti-LGBTQ views of Alliance Defending Freedom, a group to which Barrett has ties, having previously lectured to the organization’s Blackstone Legal Fellowship Program on constitutional law.
“Judge Barrett is fully aware [of ADF’s views] because she was asked on the record about these anti-equality positions three years ago and she’s been paid by this organization,” David said, referring to an verbal altercation Barrett had in 2017 with then-Sen. Al Franken (D-Minn.) regarding her ties to ADF during her confirmation hearing for a seat on the 7th U.S. Circuit Court of Appeals.
“She’s defended the Supreme Court dissenters on the marriage equality case, or Obergefell v. Hodges, questioning the role of the court in deciding the case, a decision that hinged on the constitutional rights of LGBTQ people,” he added. “She’s criticized the ruling that upheld the Affordable Care Act, which has helped millions of people attain a quality, affordable health care. And she’s expressed opinions that suggest she would strike down the law, which would effectively mean millions of people could lose health care in the middle of a pandemic.
“She has said that Title IX protections do not extend to transgender people, claiming that it is a, quote, ‘strain on the text’ to reach that interpretation. She has misgendered transgender people, referring to transgender women as, quote, ‘physiological males,’ which is effectively denying transgender people even the most basic of human dignity, all the while casting out on their on their rights,” David said.
David noted that Barrett’s views on LGBTQ issues are particularly important to assess in light of an opinion from Justices Clarence Thomas and Samuel Alito calling on the court to revisit the Obergefell case to “fix” alleged “problems” that the court’s decision poses with respect to the religious freedom of people opposes to same-sex marriage.
“[Thomas and Alito’s] comments made clear that there is a war on marriage equality against the lives of same sex couples, and if Amy Coney Barrett is confirmed to the court, we would unfortunately be one step closer to that reality,” David said. “We as LGBTQ people remember what life was like before same-sex couples could legally marry nationwide. We were able to have, at most, what Justice Ginsburg called ‘skim-milk marriages, where, depending on which state you lived in, we weren’t recognized as families.
“We could not file taxes jointly. We could not make medical decisions for one another, or even after death. We could not be legally treated as surviving spouses,” he noted. “We remember when we could be evicted from our apartments or fired from our jobs for being who we are, and arrested for loving our same-sex partners. We fear with good reason, a far-right Supreme Court could undermine the rights of marginalized communities and the LGBTQ community for decades. And I just want to say we’re not going back. We’re not going back into the closet. … Our love is just as valid as anyone else’s. Our love is equal and our rights have to be as well.”
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