Anti-LGBTQ+ Dog Whistles

During yesterday’s Senate confirmation hearings for Amy Coney Barrett, Senator Dianne Feinstein asked the nominee whether she shared her late mentor Justice Antonin Scalia’s hostility toward gay rights. During her nomination ceremony last month, Barrett stated that she has adopted the “judicial philosophy” of the Scalia, a conservative judge who delivered the dissenting opinion in the 2015 landmark decision requiring states to grant and recognize same-sex marriages. If confirmed, Feinstein asked, would Barrett, like Scalia, “be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community?” Barrett responded that she had “no agenda,” a line Scalia also used during his confirmation hearing. She then elaborated: “I do want to be clear that I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”  

It's not a "preference," Judge Barrett. #BlockBarrett #SCOTUSHearing #OurCourt pic.twitter.com/V2drHlRK9z

— National Women's Law Center (@nwlc) October 13, 2020

Barrett wouldn’t say whether she agrees with Scalia on the issue of same-sex marriage, adding that no one should “assume” she would make the same decisions Scalia did. “It’s rather a fundamental point for large numbers of people I think in this country,” Feinstein pressed her. She added: “You identify yourself with a justice that ... would be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community. And what I was hoping you would say is that this would be a point of difference, where those freedoms would be respected and you haven’t said that.”

Senator Mazie Hirono of Hawaii schooled Barrett on her use of “sexual preference” later in the hearing. "Sexual preference is an offensive and outdated term. It is used by anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not. Sexual orientation is a key part of a person's identity," Hirono said. "That sexual orientation is both a normal expression of human sexuality and immutable, was a key part of the majority's opinion in Obergefell." Hirono ended her remarks saying, "Which, by the way, Scalia did not agree with," without allowing Barrett to respond. After the next committee member, Senator Joni Ernst of Iowa, began, Barrett asked to speak directly to Hirono's comments. Barrett then attempted to clarify that she intended to suggest no hostility with her use of the term and offered an “apology.” "I certainly didn't mean and would never mean to use a term that would cause any offense to the LGBTQ community," Barrett said. "So, if I did, I greatly apologize for that. I simply meant to be referring to Obergefell's ruling with respect to same sex marriage." The problem with Barrett’s clarification is that she says she had not intended any hostility to the LGBTQ+ community; however, she did not apparently say sexual orientation is not a choice.

 

Even with this weak apology, Barrett’s use of “sexual preference” is alarming for good reason. The archaic phrase suggests that sexuality is a choice, that gay and bisexual people simply prefer to partner with people of the same sex—a preference that, with enough willpower, can be changed. This is an argument I have had for many years with my family. I did not choose to be gay. I love being gay because I have come to accept myself, but if there had been a choice, I would not have chosen it. I dated several women who would have loved to have had me as a husband, and the only choice I ever made was that I would not marry a woman because I would make her and me miserable. This may not be the case for everyone, but it was the case for me. I knew I would never be happy married to a woman. 

 

Journalist Kyle Griffin sums up the issue very well: 

"Sexual preference," a term used by Justice Barrett, is offensive and outdated. The term implies sexuality is a choice. It is not. News organizations should not repeat Justice Barrett's words without providing that important context.

— Kyle Griffin (@kylegriffin1) October 13, 2020

American psychologist, writer, and academic Jesse Bering explained in 2013 that the term “sexual preference” is similar to other expressions, like “the gay lifestyle” or “avowed homosexual,” that were once common but are now considered offensive. These phrases play into the anti-gay fabrication that sexual minorities are not a discrete and insular minority deserving of constitutional protections but rather deviants who should not be rewarded for their abnormal sexuality. Today, the term “sexual preference” has almost universally been replaced with “sexual orientation,” which acknowledges that sexuality is a fundamental human trait. But the religious right often refuses to use “orientation,” fearing that it will legitimize homosexuality. For instance, when Scalia dissented from the Supreme Court’s first ruling in favor of gay rights, he put the word “orientation” in scare quotes, speaking only of “homosexual ‘orientation.’ ” Scalia also refused to use the phrase “sexual orientation” in the court’s next three gay rights decisions. Instead, he deployed the term “homosexual conduct.” Like “sexual preference,” this expression implies that homosexuality isn’t something you are but something you do—and, by extension, something you can (and should) stop doing. Consider this passage from Scalia’s dissent in Lawrence v. Texas, which legalized same-sex intimacy:

 

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

 

Barrett’s use of “sexual preference” yesterday brought Scalia’s words to the mind of many LGBTQ+ activists and the news media. The term indicates that she might share the Alliance Defending Freedom (ADF) positions, which opposes LGBTQ+ nondiscrimination laws. They support the criminalization of homosexuality, and they consistently reject the validity of LGBTQ+ identities. Barrett has given paid speeches to the organization on five occasions. When Al Franken questioned her during the September 6, 2017 confirmation hearing for the Appellate Court about whether she supports the organization’s full agenda, she said she did not look into the group’s beliefs before agreeing to the speaking engagement: 

ADF regularly asks the Supreme Court to legalize discrimination against LGBTQ+ people and roll back our constitutional equality. The group is currently urging the Supreme Court to rule that Philadelphia must provide public funding to a foster care agency that refuses to work with same-sex parents. SCOTUS will hear the case in November—shortly after Barrett is confirmed if Republicans’ current timeline holds.

In yesterday's hearing, Senator Patrick Leahy of Vermont also brought up Barrett association with the ADF program, Blackstone Legal Fellowship. She has given paid speeches to Blackstone fellows, law students from around the nation, on five occasions. Leahy mentioned that ADF had celebrated the recriminalization of gay sex in India, and told Barrett, “Whether you believe being gay is right or wrong is irrelevant to me, but my concern is you worked with an organization working to criminalize people for loving a person that they’re in love with.” Barrett said her Blackstone lectures were on constitutional law and had nothing to do with any type of discrimination.

 

What’s more, Barrett’s claim that she has “never” discriminated based on sexuality drew scrutiny given her ties to Trinity Schools Inc., a group of private Christian schools that has spoken out against same-sex marriage. Barrett served as a trustee on the board of Trinity Schools from 2015 to 2017, and some of her children attend the Trinity School at Greenlawn in South Bend, Indiana. In 2014, Trinity Schools adopted an admissions policy that effectively excluded children of same-sex couples, former Trinity staffers told The New York Times. A person involved in Barrett’s confirmation process said Barrett did not participate in creating the policy, but former Trinity staffers said it was enforced during her tenure, according to the Times.

 

A “cultural statement” issued by the school during the 2018-19 school year stated, “the only proper place for human sexual activity is marriage, where marriage is a legal and committed relationship between one man and one woman,” reported Politico. It also defined “homosexual acts” as “at odds with Scripture.” According to Politico, a spokesperson for Trinity Schools said the language was changed around that time, suggesting it was in place during Barrett’s tenure on the board and well after the Supreme Court legalized same-sex marriage nationwide in 2015. 

 

In light of Barrett’s long affiliation with anti-gay organizations, we cannot dismiss her coded language as a poor choice of words. She knew exactly what she was saying. She strikes me as a woman who chooses her words very carefully. If there is any way that she didn’t know exactly what she was saying, she needs to withdraw her nomination for being a complete idiot and an insensitive human being, but I have no doubt she knew. Republicans selected her, in part, to reward the Christian right for its loyalty to Donald Trump. Eroding constitutional equality for LGBTQ+ people is a key priority of the Republican Party platform. Barrett has given us every reason to expect that she will shore up a conservative majority that is ready and willing to condemn gay Americans to second-class citizenship once again.