The Supreme Court of the United States has upheld and expanded the rights of LGBTQ+ Americans in recent years, but President Trump’s nomination of Judge Amy Coney Barrett following the death of Justice Ruth Bader Ginsburg may threaten to reverse or overturn some of the Court’s pro-LGBTQ+ rulings.
Judge Barrett has served as a circuit judge in the U.S. Court of Appeals for the Seventh Circuit since November 2017. During the Senate’s confirmation process in September 2017, Judge Barrett pledged in writing to “apply the law faithfully and impartially in accordance with the judicial oath” regardless of her personal beliefs disavowing same-sex marriage. Despite her statement, Judge Barrett’s confirmation was formally opposed by 27 advocacy organizations representing the interests of LGBTQ+ individuals as well as people living with HIV.
More recently, during her 2020 Supreme Court confirmation hearings, some of Judge Barrett’s anti-LGBTQ+ views have come to light. According to a Vox article, Judge Barrett defended the dissenting justices in Obergefell v. Hodges, in which the Supreme Court guaranteed same-sex couples the right to marriage throughout the United States, in a 2016 lecture at Jacksonville University. In the same lecture, Judge Barrett questioned gender-affirming bathroom access afforded to transgender people by Title IX, suggesting it should be reviewed and updated by either the Supreme Court or Congress.
Judge Barrett’s homophobic beliefs slipped through during the 2020 Supreme Court confirmation hearings, where she used the words “sexual preference” rather than ‘sexual orientation’ in reference to Obergefell v. Hodges and same-sex couples. Many LBGTQ+ individuals take offense at the implication of choice in the phrase ‘sexual preference’ compared to the innateness implied by ‘sexual orientation.’ Judge Barrett later apologized, but only after Senator Mazie Hirono (D-Hawaii) called out the judge’s usage of the phrase as offensive. After this event, Merriam-Webster updated its online dictionary to identify ‘sexual preference’ as an offensive term.
The Supreme Court’s current right-wing leaning would grow to a 6-3 conservative majority with Judge Barrett’s confirmation. Beyond overturning current precedent, future cases concerning LGBTQ+ rights are also at stake. If Judge Barrett is confirmed before November 4, she will rule in the upcoming hearing for Fulton v. City of Philadelphia, which will determine whether private, taxpayer-funded agencies which provide government services, such as foster care or homeless shelters, can discriminate, on the basis of religious objection, against LGBTQ+ individuals as well as followers of Judaism, Islam, and Mormonism.
When it comes to LGBTQ+ rights, the Supreme Court only recently turned in support. In 1971, the Supreme Court dismissed an appeal to rule on Baker v. Nelson, a Minnesota Supreme Court case that ruled marriage statutes could be limited to people of the opposite sex. By dismissing this appeal “for want of a substantial federal question,” the Supreme Court upheld the decision of the Minnesota Supreme Court and created federal precedent against same-sex marriage.
That is, however, until 40 years later, when the Supreme Court overturned its ruling in Baker v. Nelson in the 2015 case Obergefell v. Hodges, explicitly upholding the constitutionality of same-sex marriage.
More recently, in June 2020, the Supreme Court ruled on Bostock v. Clayton County, declaring it unconstitutional for an employer to fire a worker based on sexual orientation or gender identity under Title VII of the 1964 Civil Rights Act. For the first time in American history, LGBTQ+ workers are federally protected against workplace discrimination.
Judge Barrett’s confirmation coincides with growing anti-LGBTQ+ sentiment on the Supreme Court. After the Supreme Court turned down an appeal from Kim Davis, a Kentucky clerk who was sued for refusing to issue a marriage license to a same-sex couple, Justice Clarence Thomas, joined by Justice Samuel Alito, issued a statement in which he criticized the Court’s ruling in Obergefell v. Hodges.
In the statement, Justice Thomas describes the Obergefell ruling as a threat to religious liberty in America that “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.” Justice Thomas calls the Court’s ruling “a problem that only it can fix,” suggesting that the Supreme Court should overturn its Obergefell v. Hodges ruling in order to protect religious freedom. While there is currently no action being taken to overturn Obergefell v. Hodges, the growing conservative majority on the Supreme Court has the power to do so.
While the Supreme Court has played a major role in expanding LGBTQ+ rights in America, its future is uncertain. Judge Barrett says she will interpret the law regardless of her own beliefs, but her past shows potential for homophobic, anti-LGBTQ+ rulings which will harm the rights of LGBTQ+ Americans.
Article Thumbnail: Philadelphia City Council and Tierney, Public domain, via Wikimedia Commons