Amy Coney Barrett, concluding her confirmation hearing for a seat on the U.S. Supreme Court, continued to have no comment Wednesday on whether she’d overturn LGBTQ rights decisions, including the milestone Lawrence v. Texas ruling decriminalizing same-sex relations or the Obergefell ruling in favor of same-sex marriage.
Under questioning from Sen. Richard Blumenthal (D-Conn.) before the Senate Judiciary Committee, Barrett refused to say whether or not the decisions were correctly decided, consistent with her other responses before the Senate Judiciary Committee.
“I’ve said throughout the hearing that I can’t grade precedent, in the words of Justice Kagan, give it a thumbs up or a thumbs down,” she replied.
Interrupting her response, Blumenthal said, “You give can’t give me a ‘yes’ or ‘no’ answer? Again, forgive me for interrupting you, but my time is limited.”
Barrett continued: “Well, Sen. Blumenthal, I can’t give a ‘yes’ or a ‘no,’ and my declining to give an answer doesn’t suggest disagreement or agreement.”
Blumenthal wasn’t having it, saying he was asking her legal position as a nominee for a seat on the Supreme Court “not your moral, not a policy position, not your religious faith position, a legal position.”
Next on Blumenthal’s list was Obergefell v. Hodges, the 2015 decision that extended marriage rights to same-sex couples nationwide, but Barrett held firm.
“Sen. Blumenthal, every time you ask me a question about whether a case was correctly decided or not, I can’t answer that question, because I cannot suggest agreement or disagreement with precedents of the Supreme Court,” Barrett said.
Pointing out she remains a judge on the U.S. Seventh Circuit Court of Appeals, Barrett continued, “All of these precedents bind me now as a 7th Circuit judge, and were I to be confirmed, I would be responsible for applying the law of stare decisis to all of them.”
Barrett didn’t mention that as a Supreme Court justice, it would be in her power to overturn the precedent despite the principle of stare decisis, which compels justices to allow a previously settled legal question to stand.
Blumenthal said he didn’t think that response was satisfactory, urging the Trump nominee to imagine herself in the place of an LGBTQ person.
“Think of how you would feel as a gay or lesbian American to hear that you can’t answer whether the government can make it a crime to have that relationship, whether the government can enable people who are happily married to continue that relationship,” Blumenthal said.
Barrett, however, said Blumenthal was reading too much into her inability to comment, criticizing him for suggesting she’d strike down Obergefell.
“Implying that I’m poised to say I want to cast a vote to overrule Obergefell, and I assure you, I don’t have any agenda, and I’m not even expressing a view of disagreement with Obergefell,” Barrett said. “You’re pushing me to try to violate the judicial canon of ethics and to offer advisory opinions, and I won’t do that.”
It should be noted Barrett has made her religious views on same-sex marriage known. In 2015, Barrett co-signed a letter with other Catholic women to bishops affirming marriage is between a man and a woman and the sexual difference between men and women was significant.
If Barrett were confirmed to the Supreme Court as a replacement to the late Ruth Bader Ginsburg, she may provide the crucial vote needed to overturn Obergefell, especially in the wake of the unexpected statement last week from U.S. Associate Justices Clarence Thomas and Samuel Alito declaring war on the decision.
Previously in her confirmation hearing, Barrett dodged questions related to the Obergefell decision and downplayed her ties to the anti-LGBTQ Alliance Defending Freedom, from which she has admitted taking speaking fees. Barrett said she’d never discriminate on the basis “sexual preference,” later apologizing for using a term implying being LGBTQ is a choice.
Barrett’s confirmation hearing concluded Wednesday. Sen. Lindsey Graham (R-S.C.), chair of the Senate Judiciary Committee, said he would hold a committee vote on her nomination next week, followed shortly by a vote of the full Senate.