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Judge Amy Coney Barrett is sworn in to begin her Supreme Court nomination hearing before the Senate Judiciary Committee on October 12, 2020. (Photo: Erin Schaff/Getty Images)

During testimony on Tuesday, Barrett falsely claimed to have "never discriminated on the basis of sexual preference," a statement which drew condemnation for its untruthfulness and for its use of an offensive term implying that being LGBTQ is a choice. (Photo: Erin Schaff/Getty Images)

'This Is a Dog Whistle': Barrett Condemned for Implying That Being LGBTQ Is a Choice and Saying Working With Anti-Gay Hate Group Was 'Wonderful'

"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."

Brett Wilkins

LGBTQ people and their allies condemned Judge Amy Coney Barrett during the second day of her Supreme Court confirmation hearings Tuesday after the nominee falsely claimed she never discriminated against LGBTQ people, implied that their sexual orientation is a choice, and described her experience with an anti-gay hate group as "wonderful."

LGBTQ rights loomed large during the second day of Barrett's contentious Senate Judiciary Committee confirmation. President Donald Trump's third Supreme Court nominee refused to say whether or not she would vote to roll back hard-fought civil rights while repeatedly dodging questions from Democrats on the committee about both her personal views on gay rights and how she might rule on the issue.

"My identity is not a preference or a choice, and that you don't know that proves you can't be trusted to determine our community's future."
—Alphonso  David, Human Rights Campaign

While Supreme Court nominees routinely invoke the principle of "judicial canon" to avoid disclosing their beliefs on issues and cases, Barrett recently said she espouses the same judicial philosophy as the late conservative Justice Antonin Scalia, who routinely ruled against civil rights for LGBTQ people, in cases ranging from the overturned Texas sodomy ban to the landmark 2015 marriage equality case Obergefell v. Hodges.

When pressed by Sen. Dianne Feinstein (D-Calif.) on her jurisprudential affinity for Scalia—for whom she clerked—Barrett replied that "you would not be getting Justice Scalia, you would be getting Justice Barrett."

"I have no agenda and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference," Barrett replied to questioning about Obergefell. 

However, civil rights advocates were quick to remind the world that she had indeed discriminated against LGBTQ people. She did so while serving on the board of trustees of Trinity Schools Incorporated, a network of private Christian schools in Indiana which during her tenure enacted a policy prohibiting students with unmarried parents. As same-sex marriage was illegal in the state at the time, the policy effectively discriminated against LGBTQ people.

Furthermore, Barrett's use of the term "sexual preference" raised eyebrows and ire, as the word "preference" implies that sexual orientation is something LGBTQ people can control at will. Feinstein—a former San Francisco mayor who represents the state with the nation's largest LGBTQ population—said nothing about Barrett's use of the offensive term. Others, however, quickly did.

"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,'" said Shannon Minter, legal director at the National Center for Lesbian Rights. "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." 

"This is a dogwhistle," the LGBTQ civil rights group Lambda Legal tweeted in response to Barrett's response. "The term 'sexual preference' is used by opponents of equality to suggest that being #LGBTQ is a choice." 

"My identity is not a preference or a choice, and that you don't know that proves you can't be trusted to determine our community's future," tweeted Human Rights Campaign (HRC) president Alphonso David.

To many LGBTQ observers, the most alarming part of Tuesday's hearing was when Barrett was asked about her links to Alliance Defending Freedom (ADF), a right-wing legal advocacy organization designated a hate group by the Southern Poverty Law Center, in part for its support for the criminalization of consensual sex between LGBTQ adults in the United States and abroad. 

In recent years, ADF also intervened in support of now-repealed European laws allowing forced sterilization of transgender people. The group has also argued in favor of permitting employers to fire workers solely for being transgender—a practice ruled unconstitutional by the historic 2020 Supreme Court decision Bostock v. Clayton County

Barrett, who has been paid to speak at the ADF's Blackstone Legal Fellowship program on five occasions, told the Judiciary Committee that her "experience with the Blackstone program was a wonderful one," and that she was "not aware" of ADF's efforts to criminalize LGBTQ people or repeal same-sex marriage equality. 

However, Sen. Patrick Leahy (D-Vt.) then noted that Blackstone Legal Fellowship reading materials referenced (pdf) ADF's defense of sodomy laws, and that ADF's website clearly states the group's opposition to same-sex marriage equality. 

A recent report (pdf) by HRC warned that Barrett has "demonstrated hostility toward LGBT+ rights in her words and rulings," and that if confirmed, "she would advance a legal philosophy that yielded reliably and rabidly anti-LGBTQ rulings and dissents during Justice Scalia's tenure."

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