Supreme Court nominee Amy Coney Barrett on Tuesday claimed during her confirmation hearing that she has “never” discriminated based on “sexual preference,” prompting backlash from LGBTQ advocates who denounced her statement as offensive and inaccurate.
Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, had asked Barrett whether she believes the Constitution affords same-sex couples the right to marry.
Barrett stated during her nomination ceremony last month that she has adopted the “judicial philosophy” of the late Justice Antonin Scalia, a conservative judge who delivered the dissenting opinion in the 2015 landmark decision requiring states to grant and recognize same-sex marriages.
But Barrett on Tuesday 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.”
Barrett, whom President Donald Trump nominated last month to replace Justice Ruth Bader Ginsburg, went on to claim that she has “no agenda.”
“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 said. “You know, like racism, I think discrimination is abhorrent.”
LGBTQ advocates were quick to point out that “sexual preference” is an inaccurate way to describe sexual orientation.
“‘Sexual preference,’ a term used by Justice Barrett, is offensive and outdated,” tweeted Kyle Griffin, a senior producer at MSNBC. “The term implies sexuality is a choice. It is not.”
Ritchie Torres, a member of the New York City Council and a 2020 Democratic candidate for the House, called Barrett’s views on sexuality “a relic of the past.”
“As a gay man, I do not have a ‘sexual preference’ any more than I have a racial preference or an ethnic preference,” Torres tweeted. “I have a sexual identity.”
Several hours later during Tuesday’s hearing, Sen. Mazie Hirono (D-Hawaii) confronted Barrett about her use of the term “sexual preference.”
“Sexual preference is an offensive and outdated term,” Hirono said. “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.”
Barrett apologized and stated she “didn’t mean” to offend anyone.
“I certainly didn’t mean ― and would never mean ― to use a term that would cause any offense in the LGBTQ community,” Barrett said. “So if I did, I greatly apologize for that.”
As for Barrett’s claim that she has “never” discriminated based on sexuality, it 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.”
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, according to Politico.
The story has been updated to include Barrett’s later exchange with Sen. Mazie Hirono on the term “sexual preference.”