Amy Coney Barrett Saying Sexual Preference Matters
Social conservatives understand that dog whistle regarding her LGBTQ rights thinking
BY PAUL SCHINDLER
When Donald Trump’s
Supreme Court
nominee, in her
Senate confi rmation
hearings on October 13, responded
to California Democrat
Dianne Feinstein’s question about
whether she shared her mentor
the late Antonin Scalia’s hostility
to LGBTQ rights, her response
— “I have never discriminated on
the basis of sexual preference and
I would never discriminate on the
basis of sexual preference” — set
off alarms on Twitter and LGBTQ
listserves nationwide.
Sexual preference — a term
widely used a generation or two
ago — has in recent decades come
to be understood by the precise
meaning of the word “preference”
— something one chooses. For
many people not paying close attention,
the distinction between
sexual orientation and sexual preference
may be lost on them.
Barrett, however, like Scalia,
bases her entire judicial philosophy
on the original text of the Constitution.
Specifi c words hold great
import for her and they are interpreted
with very specifi c meanings.
What is meant and intended
— politically and legally — by the
term sexual preference is not lost
on her.
Sexual preference is the term of
choice, as it were, for opponents
of LGBTQ rights who argue that
homosexuality and gender identity
are choices — perhaps choices
people are free to make — but being
choices, they are not necessarily
characteristics that deserve legal
and constitutional protections.
Anti-LGBTQ legal groups, such
as the Alliance Defending Freedom,
are careful to use the term sexual
preference and never sexual orientation.
They likely took their cue
from Scalia. In his 1996 dissent
from the fi rst LGBTQ rights victory
handed down by the Supreme
Court — in Romer v. Evans, concerning
a Colorado voter initiative
that barred the state or localities
Seventh Circuit Court of Appeals Judge Amy Coney Barrett appearing before the Senate Judiciary Committee
considering her Supreme Court nomination on October 13.
from enacting gay rights protections
— he repeatedly put the word
orientation in quotes.
Even if many Americans are
vague on the issue at stake in this
semantic debate, Christian and
other social conservatives who
spend their free time worrying
about scary LGBTQ people, the
distinction is clear. It’s all a choice.
And, most dangerously, one that
can be changed.
Matt Shurka, the co-founder
and chief strategist of Born Perfect,
a group that works to ban conversion
therapy, particularly as practiced
on minors, explained the implications
of this assumption.
“Conversion therapy preys on
vulnerable families and youth by
promoting the deadly lie that being
LGBTQ is a choice,” Shurka said in
a written statement today. “Believing
that lie has caused incalculable
damage to LGBTQ young people,
who urgently need to know that
they are born perfect. We hope that
Judge Amy Coney Barrett and all
people in positions of visibility and
infl uence will consider the impact
of their words on these vulnerable
youth.”
REUTERS/ SAMUEL CORUM
Shannon Minter, the legal director
of the National Center for Lesbian
Rights, where the Born Perfect
program is housed, added, “When
Amy Coney Barrett used the term
‘sexual preference’ in her testimony
before the Senate today, she perpetuated
the dangerous and false
stereotype that being LGBTQ is
not a fundamental aspect of identity,
but a mere ‘preference.’ This
is why so many people, including
many parents who send their children
to conversion therapy, think
being LGBTQ is a choice. As judges
know, language matters.”
In addition to the impact that
the concept of sexual preference
has on the culture and the legality
of conversion therapy, it also has
signifi cant constitutional implications.
When LGBTQ Americans make
claims for equal protection rights
guaranteed by the 14th Amendment,
the courts must evaluate
whether those claims are owed the
required heightened scrutiny by
the courts. In general terms, claims
of alleged racial discrimination are
subjected to strict scrutiny, while
gender discrimination claims are
POLITICS
typically viewed using what is
known as intermediate scrutiny.
In both cases, the government has
the responsibility to demonstrate a
stronger than typical justifi cation
for a policy that singles Americans
out based what are known as “suspect
classifi cations,” such as race,
or “quasi-suspect classifi cations,”
such as sex.
A variety of factors going into
that analysis, but one of them is
the “immutability” of the characteristic
that triggers disparate
treatment. Race is immutable — a
Black person will never not be a
Black person, so any racially disparate
treatment can only be justifi
ed on the strongest, most compelling
possible grounds.
By defi nition, something that
is immutable cannot be a choice,
and something that is a choice is
clearly not immutable.
Until this year, the Supreme
Court had never made an explicit
ruling on whether sexual orientation
or gender identity was a “suspect”
or “semi-suspect classifi cation”
— like race or sex — subject to
heightened scrutiny when it comes
to equal protection claims.
In the Bostock employment ruling
in June, however, discrimination
based on sexual orientation
and gender identity were found to
fall under the defi nition of sex discrimination
in Title VII of the 1964
Civil Rights Act.
That was a good start on the
path toward discrimination claims
by LGBTQ people being held to an
intermediate scrutiny standard.
But it is just a start.
Though other federal nondiscrimination
laws are typically interpreted
using precedents established
by Title VII litigation, there
is a lot more work in the courts to
be done to achieve broad-based
nondiscrimination protections regarding
LGBTQ people in all areas
of our lives.
A committed “textualist” who
starts from an understanding that
being gay is a preference certainly
seems unlikely to be a vote in favor
of broadening the victory the LGBTQ
community won in Bostock.
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