Amy Coney Barrett winning Supreme Court seat would ‘be the final puzzle piece’ in overturning marriage equality, lawyers warn

Judge Amy Coney Barrett attends first day of her Senate confirmation hearing to the Supreme Court on Capitol Hill in Washington, DC on October 12, 2020.

Amy Coney Barrett, Donald Trump’s nominee to replace LGBT+ rights hero Ruth Bader Ginsburg on the Supreme Court, has been accused of cozying up to groups that “fan the flames” of anti-trans rhetoric and of posing a direct threat to equal marriage.

As the Senate Judiciary Committee began the process of confirming Coney Barrett on Monday (October 12), LGBT+ campaigners have reasserted their opposition.

They warned that her appointment would effectively abolish the fragile consensus in favour of LGBT+ equality on the court, by replacing Ginsburg’s reliably-liberal vote with a stalwart conservative who has a lengthy problematic track record.

A report by Human Rights Campaign released shortly ahead of the Senate hearings warns that Coney Barrett has “demonstrated hostility toward LGBTQ rights in her words and rulings”, signalling her closeness to the late anti-LGBT+ conservative Supreme Court justice Antonin Scalia, who opposed the decriminalisation of homosexuality.

Amy Coney Barrett called trans women ‘physiological males’

As detailed in the report, Amy Coney Barrett has previously misgendered transgender people, referring to a transgender women as “physiological males” as she questioned their basic rights.

Coney Barrett has also questioned landmark marriage equality ruling Obergefell v Hodges, which brought same-sex weddings to all 50 states, and signed a 2015 letter stating her support for “marriage and family founded on the indissoluble commitment of a man and a woman”.

She took an opposite view from the court on whether anti-discrimination protections extend to transgender Americans, claiming in a 2016 lecture that it’s a “strain on the text” to reach that interpretation.

The Transgender Legal Defense and Education Fund (TLDEF), meanwhile, cited her “multiple ties to fervently anti-transgender organizations” including the Heritage Foundation and Alliance Defending Freedom, the latter of which has argued in court that has argued it should be legal for employers to fire workers simply because they are transgender.

Judge Amy Coney Barrett attends first day of her Senate confirmation hearing to the Supreme Court on Capitol Hill in Washington, DC on October 12, 2020.

Judge Amy Coney Barrett attends first day of her Senate confirmation hearing to the Supreme Court on Capitol Hill in Washington, DC on October 12, 2020. (Erin SCHAFF / POOL / AFP)

TLDEF executive director Andy Marra said: “Amy Coney Barrett’s judicial record and public statements are clear. She has expressed opposition to basic protections for transgender people, and sought to undermine decades of case law protecting fair employment and access to health care.

“Judge Barrett has also misgendered transgender girls and women and perhaps most disturbingly, she has targeted transgender children. None of this comes as a shock when you consider her affiliations.

“Judge Barrett has cozied up to groups that fan the flames of anti-transgender rhetoric and aspire for transgender people to simply not exist.

“Judge Barrett’s record shows her to be a threat to the safety and well-being of transgender people and our families. Today, we remain steadfast in our opposition to her nomination for our nation’s highest court.”

Supreme Court nominee ‘poses a clear threat’ to LGBT+ rights

HRC president Alphonso David said: “Every American should be concerned by this nomination and its implications on the progress of equality for LGBTQ people and other marginalized groups.

“This upcoming term and beyond, we expect crucial cases about the future of LGBTQ rights to appear before the Court. Amy Coney Barrett poses a clear threat to any progress we can expect to see from the Court and her record shows she will take every opportunity to oppose us and scale back our rights. We vigorously oppose her nomination.”

HRC added: “Judge Barrett poses a direct threat to the constitutional rights of LGBTQ community and all Americans, and she should not be confirmed for a pivotal vote on the highest court in the land, especially under such extraordinary and troubling circumstances.”

Just one day after the election, the court will begin to hear a case that could drastically impact LGBT+ rights, as it decides whether taxpayer-funded foster care agencies should be permitted to discriminate against same-sex couples.

Meanwhile, two of the court’s existing conservative justices, Clarence Thomas and Samuel Alito, recently launched a broadside against equal marriage, signalling a desire to revisit the court’s 2015 ruling on the issue.

Lambda Legal CEO Kevin Jennings said: “The nightmare of a hostile Supreme Court majority is already here. The confirmation hearings for judge Amy Coney Barrett haven’t even started yet and justices Thomas and Alito are already creating a laundry list of cases they want to overturn. And unsurprisingly, marriage equality is first on the chopping block. Confirming judge Barrett would be the final puzzle piece they need in order to make it happen.

“Overturning our right to legally marry the person we love and to protect our families would only be the beginning; none of the hard-fought rights that we have won in the courts are safe. That includes the right to marry, to work, or to be recognized as the legal parents of our children.

“But we will not be forced back into the closet. Lambda Legal has taken on tough fights before, beginning in 1973 when we had to sue for our very right to exist under New York law, and we’re ready for this one, too. We have come too far in the 47 years since we were founded to turn back now.”

Meanwhile, anti-LGBT+ activists have mobilised in full support of her nomination.

Brian Brown of the National Organisation of Marriage told his supporters in an email: “Make no mistake about it – the confirmation of judge Amy Coney Barrett to the Supreme Court is essential to our continuing efforts to overturn Obergefell and restore marriage to our nation’s laws.”

Brown is among the figures who has spent years publicly detailing plans to stack the court with conservatives and overturn equal marriage, boasting in 2017 that “we are likely only one vote short of reinstating marriage in our nation.”