Update, Oct. 13, 2020, at 6:27 p.m.: During further questioning, the judge apologized for using the term “sexual preference,” and said she “did not mean to imply that it was not an immutable characteristic or that it’s solely a matter of preference.” She continued, “I honestly did not mean any offense or to make any statement by that.”
During Tuesday’s Senate confirmation hearings for Amy Coney Barrett, Sen. Dianne Feinstein asked the nominee whether she shared her mentor Justice Antonin Scalia’s hostility toward gay rights. If confirmed, Feinstein asked, would Barrett, like Scalia, “be a consistent vote to roll back hard-fought freedoms and protections for the LGBT community”? Barrett responded that she had “no agenda,” a line Scalia also used during his own confirmation hearing. She then elaborated: “I do want to be clear that I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”
Barrett’s use of “sexual preference” alarmed many viewers, myself included, for good reason. The archaic phrase suggests that sexuality is a choice, that gay and bisexual people simply prefer to partner with people of the same sex—a preference that, with enough willpower, can be changed. As Jesse Bering explained in 2013, the term is similar to other expressions, like “the gay lifestyle” or “avowed homosexual,” that were once common but are now considered offensive. These phrases play into the anti-gay canard that sexual minorities are not a discrete and insular minority deserving of constitutional protections but rather deviants who should not be rewarded for their aberrant sexuality.
Today, the term “sexual preference” has almost universally been replaced with “sexual orientation,” which acknowledges that sexuality is a fundamental human trait. But the religious right often refuses to use “orientation,” fearing that it will legitimize homosexuality. For instance, when Scalia dissented from the Supreme Court’s first ruling in favor of gay rights, he put the word “orientation” in scare quotes, speaking only of “homosexual ‘orientation.’ ” Scalia also refused to use the phrase “sexual orientation” in the court’s next three gay rights decisions. Instead, he deployed the term “homosexual conduct.” Like “sexual preference,” this expression implies that homosexuality isn’t something you are but something you do—and, by extension, something you can (and should) stop doing. Consider this passage from Scalia’s dissent in Lawrence v. Texas, which legalized same-sex intimacy:
Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
Barrett’s use of “sexual preference” on Tuesday brought Scalia’s words to mind. It indicates that she might share the position of the Alliance Defending Freedom, a law firm that opposes LGBTQ nondiscrimination laws and supports the criminalization of homosexuality, and consistency rejects the validity of LGBTQ identities. (Barrett has given paid speeches to the organization on five occasions. When she was questioned about whether she supports the organization’s full agenda, she said she did not look at all of the materials it gave students attending her speeches.) ADF regularly asks the Supreme Court to legalize discrimination against LGBTQ people and roll back their constitutional equality. The group is currently urging the Supreme Court to rule that Philadelphia must provide public funding to a foster care agency that refuses to work with same-sex parents. SCOTUS will hear the case in November—shortly after Barrett is confirmed, if Republicans’ current timeline holds.
In light of Barrett’s long affiliation with anti-gay organizations, her coded language on Tuesday should not be dismissed as a poor choice of words. Republicans have selected her, in part, to reward the Christian right for its loyalty to Donald Trump. Eroding constitutional equality for LGBTQ people is a key priority for this bloc. Barrett has given us every reason to expect that she will shore up a conservative majority that is ready and willing to condemn gay Americans to second-class citizenship once again.
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