Disorder in the court

Amy Coney Barrett says she can’t comment on marriage equality, but she just did

Amy Coney Barrett’s nomination ceremony. Via Flickr.

The questioning of Supreme Court nominee Amy Coney Barrett continued Wednesday, when Senator Richard Blumenthal raised questions about Barrett’s views on marriage equality in regards to Obergefell v. Hodges, the court case which legalized marriage for same-sex couples. Barrett declined to answer the question or express her views on the subject, though she had no problem answering questions about interracial marriage.

“I’m asking your legal position judge,” Blumenthal said. “Not your moral position, not a policy position, not a religious faith position, a legal position. Correctly decided: Obergefell v. Hodges.”

“Senator Blumenthal,” Barrett answered, “every time you ask me a question about whether a case was correctly decided or not, I cannot answer that question because I cannot suggest agreement or disagreement with precedents of the Supreme Court. All of those precedents bind me now as a Seventh Circuit Judge, and were I to be confirmed, I would be responsible for applying the law of stare decisis to all of them.”

Related: Oh look, Amy Coney Barrett also thinks using the “n-word” isn’t hostile

“But your honor,” the senator pressed. “Think of how you would feel as a gay or lesbian American to hear that you can’t answer whether the government can make it a crime for them to have that relationship. Whether the government can enable people who are happily married to continue that relationship. Think of how you would feel?”

“Well Senator you’re implying that I’m poised to say that I want to cast a vote to overrule Obergefell and I assure you, I don’t have any agenda and I don’t, I’m not even expressing a view and disagreement of Obergefell, you’re pushing me to try to violate the judicial canons of ethics and to offer advisory opinions and I won’t do that,” Barrett obfuscated.

Barrett’s answer doesn’t mesh well with another answer she gave during testimony earlier that day. When asked about interracial marriage–the legality of which was affirmed by the court case Loving v. Virginia–the judge had no problem answering that she found the case correctly decided. That admission violates her own standard of not commenting on the validity of precedents set by the court.

Furthermore, as legal scholar Steven Maize of The Week points out, Barrett’s remarks on Loving–specifically that the court was correct in its decision under the Equal Protection Clause–also shows dubious reasoning.

“Barrett just told @SenBlumenthal that Loving v. Virginia (striking down mixed-race marriage bans) was based directly on Brown v. Board of Ed and was therefore correctly decided—but she can’t opine on Griswold or Obergefell. Her characterization of Loving is not quite right,” Maize tweeted. “Brown v. Board was based *only* the Equal Protection Clause: the idea that separate schools are inherently unequal. The Court explicitly declined to consider whether segregation is also unconstitutional under substantive due process. Loving, on the other hand, was based on *both* the Equal Protection Clause and the Due Process Clause, with *more* analysis devoted to the latter. It is a substantive due-process case, much like Griswold (right to contraception) and Obergefell (marriage equality). So there is no sound reason why she *can* affirm that Loving v. Virginia was correctly decided in her confirmation hearing but *decline* to opine on gay rights or contraceptive rights. Other than, of course, her belief that Griswold and Obergefell are up for reappraisal.”

The contradiction in Coney Barrett’s remarks doesn’t just illustrate her hypocrisy in her notorious deflection of questions during her testimony. It also hints–much like Justices Alito and Thomas wrote in an opinion earlier this month–that Coney Barrett believes Obergefell should be overturned, and that LGBTQ people should lose the right to marry.