Amy Coney Barrett and the Usual Scare-Mongering

Big-LGBTQ was wrong about Neil Gorsuch, as it turned out. We’ll see if they’re wrong about Amy Coney Barrett and if Guy Benson is right.

Walter Olson’s on the future of Obergefell.

Added: His update is below:

5 Comments for “Amy Coney Barrett and the Usual Scare-Mongering”

  1. posted by Tom Scharbach on

    Framing the concern about Judge Barrett in terms of the fate of Obergefell is a red herring. With a million or so gay and lesbian Americans now married, marriage equality is now a fact on the ground, and the Court will almost certainly not reverse the decision — the Court, no matter how hostile, is unlikely to be willing to create legal chaos throughout the country, which would be the result of overturning Obergefell and returning the country to the dark days when the status of our marriages depended on where we were from day to day So Obergefell will stand, however much the Court may chip away at the edges.

    What is more relevant is this: When Judge Barrett is elevated to the elevated to the Court (and I have no doubt that she will be), the Court wiil have a 5-4 majority — Roberts, Alito, Barrett, Kavanaugh, Thomas (and that assumes that Justice Gorsuch’s decision in Bostock wasn’t a fluke) — that is almost certain to be consistently hostile to any further advancement of LGBT constitutional rights through the courts.

    While this is important (because it effectively blocks the courts as a means of redress) it is not the end of the world. We’ve been there before.

    Gays and lesbians faced a hostile Court from the dawn of the modern LGBT rights movement in the 1950’s until Lawrence (2003), and we advanced our cause during that period, both politically and in the private sector, despite hostility from the courts.

    We are in a much better position now to continue that advance in the political and private sectors than we were during the earlier period of Court hostility, and all Judge Barrett’s elevation means, when you get right down to it, is that the battle will move from the courts to the legislatures and the private sector.

    We’ve fought in that arena, successfully (by the time Obergefell was decided, a strong majority of Americans favored marriage equality, a fact-on-the-ground of which the Court was not ignorant) and, if and to the extent we continue to win over the American people, we will continue to advance in both the political arena and in the private sector.

    As the battle moves from the courts to the political arena and private sector once again, I suspect that the anti-equality Christio-Republican coalition will become increasingly marginalized, as it should be. Justice Barrett may be a case of “be careful what you wish for” for anti-gay Christio-Republicans.

    • posted by Jorge on

      Okay. Let’s see who asks her those kind of questions and how she answers.

  2. posted by Tom Scharbach on

    Okay. Let’s see who asks her those kind of questions and how she answers.

    I agree, although I’m not under the illusion that the hearings will change the outcome. Nothing will. Conservatives have been working to achieve an an unassailable majority** of conservative jurists on the Court since the 1950’s, and the opportunity to elevate Judge Barrett, which will bring the Court to 6-3, is something akin to the Holy Grail among conservatives. Leader McConnell has the votes, and Judge Barrett will be confirmed, even if Kelly defeats McSally and is seated immediately after the election.

    I would like to see Judge Barrett’s views probed in three areas that may be shed light on LGBT issues going forward, each of which was touched in an hour-long apprearance at Jacksonville University in 2016:

    (1) Obergefell — Barrett defended the dissent in Obergefell, specifically Chief Justice Roberts’ dissent, in that appearance:

    [Chief Justice Roberts, in his dissent,] said, those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide. … So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”

    Based on that and a few other comments along the same lines, it is clear that if Judge Barrett had be on the Court in 2015, Obergefell would have been decided differently. That’s not important in itself (Justice Kennedy was an outlier among Republican-appointed Justices), but as a harbinger of Judge Barrett’s future decisions regarding “equal means equal”. It seems reasonably clear that Judge Barrett does not consider the Court a proper forum for deciding LGBT rights, constitutional rights included.

    (2) Bostock — Judge Barrett echoed that “rights should be decided in the legislature” view in her comments on Title IX in the same Hesburgh appearance:

    “When Title IX was enacted, it’s pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result, at that time. Maybe things have changed so that we should change Title IX, maybe those arguing in favor of this kind of transgender bathroom access are right. That’s a public policy debate to have. But it does seem to strain the text of the statute to say that Title IX demands it.”

    Based on that comment, it seems probable that Judge Barrett would have sided with the dissent in Bostock (at least in part), but again, that is not the important issue. The important thing, though, is that Judge Barrett seems to be again signalling that the Court is not a proper forum for deciding controversial issues involving LGBT rights, in this case by statutory interpretation.

    (3) Stare Decisis — In the Hesburgh appearance and elsewhere, Judge Barrett stated (in varying ways) the obvious: The Court is not bound by its own precedent unless the Court wants to be bound by that precedent.

    That is not a bad thing. We owe Brown v. Board and Lawrence, among other important decisions, to the Court’s willingness to overturn its own prededent. The Court has been historically careful about doing so, however, typically pinning decisions overturning prior decisions on a change in fact or circumstance that mandates overturning a prior decision (a mountain of evidence that school segregation was harmful to Black students in overturning Plessy, for example, and similar changed circumstances in overturning Hardwick).

    The question for Judge Barrett is not whether she would be willing to overturn prior decisions (all Justices should be willing to do so if an earlier decision turns out to be unsound in light of changed circumstances), but where Judge Barrett is positioned along the spectrum of judicial caution when it comes to abandoning precedent is important, and not just to LGBT-related decisions.

    Justices Scalia and Thomas both made extra-judicial remarks during their tenure on the Court making it clear that both would have, given the opportunity, wiped away Griswold and its progency (e.g. Lawrence, Obergefell and any number of other decisions, including, specifically, Rowe v. Wade), allowing legislatures to determine constitutional rights based on moral approbation and other temporal considerations of majority opinion, as that changes from time to time. Justice Alito seems to lean in that direction, although he has been less blunt about it. Chief Justice Roberts appears to be an institutionalist, reluctant to overturn precedent, and it is not clear where Justice Kavanaugh is positioned along the spectrum.

    Judge Barrett was asked about her views on precedent during her 2017 hearings, but her answers to the questions (essentially, Appellate Court judges follow Supreme Court precedent) aren’t relevant to her future behavior on the Court, where Justices are not bound to follow precedent. So where she stands in the spectrum of judicial caution is important, and I would like to see her views carefully examined.


    ** That is, a majority so strong that the existence of a maverick like Justice Kennedy will not change the outcome of important cases like Lawrence and Obergefell. A 6-3 majority is a big step toward that goal; reelection of President Trump, and Justice Breyer’s death or resignation during his second term, moving the majority from 6-3 to 7-2, will seal the deal.

  3. posted by Tom Scharbach on

    My view is that the only legitimate inquiry into the religious views of a Supreme Court nominee is whether or not the nominee’s religious views will control the nominee’s decision-making on the Court. I think that Judge Barrett resolved that issue (i.e. “No.”) in the 2017 hearings.

    However, in light articles like this, which are beginning to surface all over the place in the conservative press, another question needs asking: “Will your husband’s instructions affect your decision-making?”

    The Federalist (October 5), Matthew Cochran – How Strong Women Like Amy Coney Barrett Submit To Their Husbands With Joy: Leftists are attacking Supreme Court nominee Amy Coney Barrett for having a view of marriage entirely in keeping with a proper reading of scripture.

    Admittedly, Cochran is something of a religious fringer (other articles he’s authored recently in the Federalist include “If You’re Complaining About How Little Housework Your Husband Does, You’re Doing Marriage Wrong”, “We Need Christian Nationalism Because Religious Neutrality Has Failed”, “You’re Not Following The Golden Rule If You’re Not Having Children”) but I’ve been seeing too much of this sort of thing in the last couple weeks not to wonder whether Judge Barrett should be asked so that she can answer “No”.

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