ST PAUL, Minn. — When Amy Coney Barrett was confirmed to the U.S. Court of Appeals for the Seventh Circuit in 2017, 27 LGBTQ organizations co-signed a letter opposing her confirmation.
In the letter, concerns were cited about a number of things Barrett has said about LGBTQ people and marriage, and speaking arrangements she had through an organization that has been called a hate group by the Southern Poverty Law Center.
This record, according to Erin Maye Quade, a former state lawmaker and Advocacy Director at Gender Justice, is reason for LGBTQ people to worry now that President Donald Trump has nominated her to the Supreme Court. Gender Justice is a nonprofit that offers equity-focused legal assistance.
“Her philosophies and the way she has spoken about LGBTQ people— misgendered trans people, not having sex discrimination protect trans people— based on those things, I don’t see how one could then sit as a judge and not be informed by their view of the world," Maye Quade said
Her ultimate concern is that that apparent view will put the rights of LGBTQ people into question.
“The rights that so many people enjoy in this world are not always automatically granted to LGBTQ people,” she said. “We often have to prove that we are full humans deserving of humanity and recognition under the law. We have notched some wins, but it doesn’t ever feel secure. Even with marriage equality, there are always people thinking, ‘OK, how can I undo this?’ They want to tilt the court against people like myself.”
Jess Braverman, Legal Director at Gender Justice, agreed. Her concern primarily rests with Barrett’s judicial philosophy.
Though Barrett has not been a judge for very long, based on her writings, this philosophy appears to be one of textualism, sometimes referred to as originalism, which interprets the Constitution as-written. This is opposed to those who believe in a “living Constitution,” interpreting it as it relates to current events.
In her 2017 article “Congressional Originalism,” she took the position that the original “public meaning” of the Constitution is law, and said that super precedents, which are decisions that become the foundation for later judicial lines of thought that greatly affect the public, should not be undone. She also stated that “originalist” justices and legislators can undo the precedent created by “non-originalist Constitutional errors.”
In a questionnaire she responded to when being confirmed to the Court of Appeals, Barrett did say that she would follow the precedent set by several landmark LGBTQ rights cases. When asked how she could reassure LGBTQ people she would rule fairly in cases concerning their rights, she stated that she “did not think it lawful for a judge to impose personal opinion” on the law. She also said that the view of the church is irrelevant to the legal question of same-sex marriage.
Still, Braverman is worried.
“Some judges have a more expansive view of what civil rights guarantees there are in the Constitution than other judges,” Braverman said. “And my understanding is she takes a very narrow view when it comes to civil rights based on things like sex and sexual orientation.”
A number of protections for LGBTQ people existed in Minnesota before they existed at a federal level, including the recognition of same-sex marriage in 2013 and protection from workplace and housing discrimination in 1993. However, Braverman said that these state-level protections are not a guarantee that LGBTQ Minnesotans would not feel the impact of future Supreme Court decisions that deny them rights.
“Our courts look to federal case law when deciding how to interpret our own laws,” she said. “If judges are constantly looking to a federal court that’s narrowing and narrowing the rights of LGBTQ people, I think that could create problems for us down the line. And then anyone in the state of Minnesota has federal constitutional protections, so if there are certain rights that are under the federal Constitution that are seen as more important than a state-level civil rights law, that will potentially have an impact locally.”
At least one Supreme Court case regarding LGBTQ rights is imminent. Fulton v. City of Philadelphia is set to be heard in November, and could have implications for whether or not religious adoption or foster care agencies can refuse to place children in the care of LGBTQ people.
Another, Grimm v. Gloucester County School Board, regarding transgender students’ right to use the bathroom that aligns with their gender identity and not the gender they were assigned at birth, has been moving through the court system for five years.
At 48, Barrett would likely serve on the Supreme Court for decades, so her impact on cases like these could be multi-generational, Maye Quade said.
That kind of lasting effect worries her.
“We deserve a court, as Americans, that can see our humanity and is willing to grant rights that some enjoy to everybody,” she said. “I always say, if everyone doesn't have it, it’s not a right, it's just a privilege. And the question is, do we have a court that is OK with some people having rights and others not, or are they capable, able and willing to see what is unjust and then work to undo that? It’s a nomination that lasts a lifetime, so it’s for generations to come. We’re not just talking about ourselves and a short period of time. It’s for a really, really long time and we have seen what bad Supreme Court decisions can do for our country and how long it takes to undo those. There are real people who are harmed; this is not an academic exercise, this is not about ‘judicial philosophies.’ There are real people who experience harm, and until that stops, they’re continuing to experience harm.”