The Threats a Justice Amy Coney Barrett Poses
Trump’s Supreme Court choice would move bench’s balance sharply to the right
BY PAUL SCHINDLER
During a lecture at Florida’s
Jacksonville University
just days before
the 2016 presidential
election, Amy Coney Barrett, who
was then a law professor at the
University of Notre Dame, argued
that Obergefell v. Hodges, the landmark
Supreme Court ruling from
the year before that acknowledged
the right of same-sex couples to
marry, was misunderstood by the
public.
The question, she asserted, was
not who was in favor of marriage
equality and who was opposed, but
rather “who gets to decide” — the
courts or the legislative branch of
the government.
The public’s confusion about
what happened on June 26, 2015,
Barrett asserted, was a “New York
Times headline problem.”
In remarks largely focused on
the late Justice Antonin Scalia,
for whom she had clerked in the
late 1990s and whom she revered,
Obergefell was a classic example,
in Barrett’s view, of how the liberal
wing of the Supreme Court
had taken the concept of “substantive
due process” rights under the
14th Amendment far beyond where
“originalists” like Scalia believed
was merited.
While Scalia believed that both
constitutional and statutory language
must be interpreted based
on the original text and meaning
of the words when written, justices
embracing “substantive due
process” allow the high court to
say “for itself what it thinks those
rights are, based on what it thinks
contemporary values are at the
time,” Barrett told her audience.
At the conclusion of her talk
in Jacksonville, Barrett — whom
President Donald Trump announced
September 26 as his
choice to fi ll the late Ruth Bader
Ginsburg’s seat on the Supreme
Court — said that in looking at the
presidential election the following
week, “The who decides question is
a really important question to me.”
She added that she worried “about
President Donald Trump with Seventh Circuit Court of Appeals Judge Amy Coney Barrett, the president’s
nominee to fi ll the late Ruth Bader Ginsburg’s seat on the Supreme Court.
my voice being taken away.”
Just what was Barrett’s voice on
marriage equality?
An October 2015 open letter, to
which she was among nearly 1,400
Catholic women signatories, stated
that “marriage and family founded
on the indissoluble commitment
of a man and a woman — provide
a sure guide to the Christian life,
promote women’s fl ourishing, and
serve to protect the poor and most
vulnerable among us.”
Signing this letter three months
after the high court had ruled
that the Constitution guarantees
the rights of same-sex couples to
marry is clearly an indication that
Barrett felt that, at least on the issue
of marriage equality, her voice
had been taken away.
The letter was posted on the
website of the Ethics & Public Policy
Center (EPPC), an interdenominational
group based in Washington
that touts itself as “defending
American ideals” and has strong
support among leading conservatives.
Barrett’s affi liation with the
EPPC is not her only link to religious
conservatives. She is also
a member of People of Praise, a
South Bend, Indiana-based group
of Christians that grew out of the
REUTERS/ CARLOS BARRIA
Catholic Charismatic Renewal,
which in the 1960s emphasized
tradition in reaction to some of the
liberalizing that took hold in the
Church during that decade. People
of Praise emphasizes strict gender
roles, and for a time women in the
group were labeled “handmaids,”
a fact that has led some Barrett
critics to simplistically tie her faith
practice to the dystopian world described
in Margaret Atwood’s 1985
novel “The Handmaid’s Tale.”
A deep dive into Barrett’s faith
practices, however, is not necessary
to raise alarms about the policy
implications of her ties to the religious
right. In 2017, when Barrett
won her seat on the Chicago-based
Seventh Circuit Court of Appeals,
Lambda Legal cited a lecture she
delivered that was paid for by the
Alliance Defending Freedom, a litigation
group that doggedly fi ghts
LGBTQ advances in federal and
state courts nationwide.
In a release this past week, the
Human Rights Campaign charged
that Barrett’s remarks at Jacksonville
University amounted to a
defense of those Supreme Court
justices who dissented in the
Obergefell marriage equality case.
HRC also noted that, in the same
lecture, she challenged the Obama
CIVIL RIGHTS
administration’s conclusion that
Title IX of the 1972 Education
Amendments, which prohibits sex
discrimination in schools receiving
federal funding, requires that
the gender identity of transgender
students be respected.
“It does seem to strain the text of
that statute to say that Title IX demands”
that policy position, Barrett
said.
In talking about the issue, she
seemed insistent on misgendering
transgender students who have
claimed Title IX protections, referring
to them several times as
“someone who was physiologically
a boy but identifying as a girl.”
Barrett’s views on Title IX have
since been severely undermined
by the Supreme Court, which in its
June ruling in the Bostock case,
found that employment discrimination
based on gender identity
and sexual orientation is prohibited
sex discrimination under Title
VII of the 1964 Civil Rights Act.
Interpretations of other federal
nondiscrimination laws — in areas
like housing, public accommodations,
and education — typically
rely on the high court’s view of Title
VII, but even though federal courts
have begun to do exactly that, the
question of the breadth of the Bostock
ruling has not yet been decided
by the high court.
If confi rmed by the Senate, Barrett
would likely be among the conservative
votes on that issue.
In predicting back in 2016 what
would be big issues to come before
the Supreme Court, Barrett mentioned
not only Title IX but also religious
exemptions.
In fact, the day after the presidential
election, the Supreme Court
will review a Third Circuit Court of
Appeals ruling that rejected claims
by the Catholic Social Services
agency in Philadelphia that lost its
foster care services contract with
the city by refusing to work with
same-sex couples. The Third Circuit,
relied heavily on a 1990 decision,
authored, ironically, by Scalia,
that found there is no religious
➤ AMY CONEY BARRETT, continued on p.16
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