She Used the WRONG WORD!!!


More. Via National Review:

Joe Biden used the term “sexual preference” in May 2020, and the late Supreme Court justice Ruth Bader Ginsburg used it in 2017. Senators Richard Blumenthal and Dick Durbin — both Judiciary Committee members — have used the term in Senate floor speeches over the past decade.

7 Comments for “She Used the WRONG WORD!!!”

  1. posted by Tom Scharbach on

    Gee, Brad is so mad he’s spluttering! That’s an improvement. Usually he’s just disingenuous.

    If Brad could bring himself to get over it enough to actually speak rather than splutter, I’d probably agree with him. Judge Barrett’s use of the term “sexual preference” rather than “sexual orientation” signals nothing more or less than that she speaks and thinks in terms of conservative Christianity, almost certainly believing that “homosexuality is a choice”.

    That means nothing, because neither Lawrence nor Obergefell nor Bostock turns on the question of whether homosexuality is a “choice” rather than an “immutable trait”. The Court, in its various decisions about LGBT rights under the Constitution, did not rely on the distinction.

    I don’t think that there is any question that Judge Barrett, a devotee of Justice Scalia, would have voted against Lawrence, Obergefell and (in all likelihood) Bostock. In extrajudicial writing (notably the Jacksonville discussion), she made it clear that she thought Obergefell was wrongly decided, and has she has also made it clear enough that she does not believe that the Court is the proper venue for deciding questions of equal treatment under the law for gays and lesbians. (See discussion of “equality by sufferance” versus “equality by right” in the post “The Authoritarian Impulse“, by Stephen H. Miller on October 9, 2020)

    That means nothing, either, because Lawrence, Obergefell and Bostock are judicial facts on the ground at this point, legal precedent for the future. The relevant question is not whether Judge Barrett will vote to advance “equal means equal” in the future (she almost certainly won’t), but whether she will let Lawrence, Obergefell and Bostock stand if and when the cases are reconsidered by the Court. Will Judge Barrett respect that precedent as settled, or not?

    That is an open question, in my mind. In light of my concern about whether Judge Barrett will join Justices Alito and Thomas in an open call for reconsideration and overturning of those cases (see “Amy Coney Barrett and the Usual Scare-Mongering“, by Stephen H. Miller on September 27, 2020), I listened and read Judge Barrett’s discussions of stare decisis.

    I came away less than certain about her respect for precedent, but leaning toward the conclusion that Judge Barrett is cut of the same cloth as Justices Alito and Thomas, as well as the late Justice Scalia. I think that if push comes to shove, Justice Barrett will vote to reconsider at least Obergefell, and will, after consideration by the Court, vote to overturn Obergefell.

    I think that because Judge Barrett, in the hearings, made it clear that she considers very few decisions “settled” (she used the term “super precedent”). In her thinking, a decision is settled if and only if the public accepts the decisions with near universality**. I have no question at all that she considers neither Lawrence nor Obergefell settled decisions.

    So the question is going to turn on what weight Judge Barrett gives to protection of reliance interests (the theory that when judicial decisions have engendered significant reliance (a change in legal position by those affected by the decision), there should be a meaningful presumption against adjudicative change)***. The hearings did not touch on that issue and shed no light on Judge Barrett’s thinking in that regard.

    All in all, though, despite my thinking about Judge Barrett, I don’t expect her elevation to the Court to signal the end of Obergefell. Chief Justice Roberts is clearly an institutionalist who will think long and hard about protection of reliance interests, and i’m reasonably certain that Justice Gorsuch is an institutionalist, too. I’m not sure about Justice Kavanaugh, but even if he joins Justices Alito, Barrett and Thomas in voting to overturn Obergefell, the decision is likely to be 5-4 to uphold Obergefell.

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    ** Judge Barrett discussed this primarily in the context of Roe v. Wade, opining that the decision is does not meet her standard of near-universal acceptance, but her analysis applies directly to Lawrence and Obergefell. Americans support marriage equality 67% to 31% (Gallup 2020), and oppose overturning Roe 66% to 29% (NBC 2020). If (as Judge Barrett directly stated), Roe does not meet the standard, then neither does Obergefell, and Lawrence may not, either. Bostock may be in a different category because that decision turned on statutory definition, not the Constitution.

    *** In the case of Obergefell, the case for protection of reliance interests is very strong. Over a million gays and lesbians are now married, and to overturn Obergefell would render many/most of those marriages invalid, returning the couples involved to pre-Obergefell unmarried status. By the time a direct challenge reaches the Court (3-5 years, most likely) the number of married gays and lesbians will probably be a lot bigger than it is now. By the time the matter reaches the Court, the legal chaos that would result from overturning Obergefell is likely to deter all but the most determined judicial bomb-throwers.

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    • posted by Jorge on

      *** In the case of Obergefell, the case for protection of reliance interests is very strong. Over a million gays and lesbians are now married, and to overturn Obergefell would render many/most of those marriages invalid, returning the couples involved to pre-Obergefell unmarried status. By the time a direct challenge reaches the Court (3-5 years, most likely) the number of married gays and lesbians will probably be a lot bigger than it is now. By the time the matter reaches the Court, the legal chaos that would result from overturning Obergefell is likely to deter all but the most determined judicial bomb-throwers.

      I would look more to the impact of future decisions than on current disruptions when comparing Roe to Obergefell.

      Overturning Roe v. Wade wouldn’t impact too many people right now (not that many women are pregnant at once), but it would have a big impact economically and socially as women have to structure their lives and practices around the knowledge that an unwanted pregnancy carries starkly fewer options than usual. It would, frankly, change the entire culture. Roe is also fraught in my view because while it embodies a view of separation of powers that I have a very hard time abiding. I also see it the argument for having the courts enter the picture as fundamentally a freedom from religion issue. Obergefell has a different set of issues.

      Anyway, you say overturning Obergefell would cause legal chaos, and that’s probably true. But what would be the impacts on people’s lives? Obergefell would change the financial futures of a number of people in the future and it would have disruptive effects in real time, but I’m not convinced it would be to the point that it would threaten poverty. I’m not convinced it would change behavior. I wouldn’t be. That’s always been my problem with the gay marriage decisions: the stakes have either been abstract, or diffuse. With abortion, the stakes are concrete, focused, prominent.

      I say all this primarily to suggest the difficulty in getting a conservative justice to understand, much less agree with, the reliance interests in Obergefell.

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  2. posted by Kosh III on

    There is no outrage over Biden’s use because he has proven to be a supporter and ally of equal rights for LGBT people.
    The judge–not so much. She is a devout follower of a sect which condemns LGBT people and her religious OPINION may trump her fidelity to the Law.

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  3. posted by Tom Scharbach on

    Kosh, based on her testimony before the Judiciary Committee about stare decisis, I think that we can fairly conclude that Judge Barrett will join Justices Alito and Thomas in voting to overturn Obergefell if and when the case comes to the Court for reconsideration.

    For me, that is all that we need to know about her. The fact that she belongs to an oddball conservative Christian religious cult (People of Praise) that condemns gays and lesbians is irrelevant, as is the fact that her view of precedent is cockeyed** even when viewed in the most favorable light.

    We can count on her to oppose our fight for equal treatment under the law at every turn going forward.

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    **Judge Barrett cited Brown v. Board as super-precedent because, in her opinion, it is more-or-less universally accepted 65+ years after the decision. Her view is cockeyed because it ignores entirely the fact that the decision was hotly contested for two or more decades after the case was decided and gave rise to a conservative Christian political movement (Falwell, Robertson, et. al.) that spawned “segregation academies” all over the South and forms a significant part of the base of the Republican Party, a base sufficiently dominant that the party has opposed equality for gays and lesbians at every turn over the past two decades.

    By Judge Barrett’s cockeyed reasoning, Brown v. Board would have been ripe for reconsideration through the 1970’s while segregationists stood in active opposition, but not after. By her lights, Obergefell (with 67% support from the American people at this time) is ripe for reconsideration and being overturned, and will be until support for the decision rises to — what, 75%, 80% 90%? As Judge Barrett apparently views judicial precedent, what is settled precedent and what is not is a matter of polling rather than judicial reasoning. That makes no sense at all.

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    • posted by Jorge on

      The fact that she belongs to an oddball conservative Christian religious cult…

      Not knowing anything about how religiously conservative people or communities live, I’d be interested to know what gives you the impression she is in a cult.

      Reply
  4. posted by Tom Scharbach on

    I’d be interested to know what gives you the impression she is in a cult.

    At the outset, let me state clearly that I am not talking about the group’s conservative belief-set. People of Praise seems to align theologically with conservative Christian theology, more or less, and the group’s theology is not what leads me to believe that the group is a cult.

    People of Praise exhibits three characteristics of a cult (in the modern sense, not the traditional Catholic sense of a particular form of worship) — secrecy, insularity, control.

    Secrecy – People of Praise appears to be remarkably secretive about the group’s practices and membership. Judge Barrett, for example, has spoken at great length about her Catholic faith and application of her faith to public life. She has not, however (as far as I know) discussed the People of Faith at all. Not once, to my best knowledge. That seems to be typical. The media has contacted a number of current members of the group, without result. Members don’t talk about the group. Almost all knowledge that we have about the practices of the People of Faith comes from men and women who have left the group for one reason or another. That is not common among small-group faith communities in general. Most are more than willing to discuss their faith communities, and use the opportunity to evangelize. Not so People of Praise.

    Insularity – People of Praise appears to be highly insular. Former members have described the group as a very tight-knit, largely self-contained community of believers, who meet together, often live together, socialize together to the exclusion of others and patronize each other’s businesses when possible. The level of insularity seems to be much greater than can be explained by “Christian fellowship” or the natural tendancy to seek out and socialize with others like yourself.

    Control – People of Praise appears to exert an abnormal level of control over its members. Former members have described top-down spiritual direction and control of members’ life decisions, including career choices, dating and marriage. Members often are assigned to live with spiritual leaders during formative years (both Judge Barrett and her husband lived in the homes of older members during their college years), leaders from whom the members presumably receive instruction. The group’s lack of transparency, and the apparent fact that practices are passed down orally from leadership to members, makes it nearly impossible to get a clear picture of the level of control. But the level of control does appear to be abnormal for small-group faith communitiesl.

    Secrecy, insularity and control are the characteristics of People of Praise that lead me to describe the group as a cult. I am not, however, suggesting that People of Praise is a destructive cult, in the sense that the People’s Temple and Branch Davidians were destructive cults. My characterization of People of Praise as a cult is descriptive, not pejorative.

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