Column: Barrett confirmation will roll back social progress – Valley News

Published: 10/23/2020 10:10:19 PM

Modified: 10/23/2020 10:10:09 PM

She lost me at sexual preference. I refer to Supreme Court nominee Amy Coney Barrett, whose qualifications fall far short of supreme.

During her hearing before the Senate Judiciary Committee she may as well have invoked the Fifth Amendment, given the number of reasonable questions she dodged.

As to sexual preference, she used that phrase as naturally as a Proud Boy might drop the n word. Among the factors I find disqualifying, this semantic slip is glaringly revealing. Sexual preference is laden with homophobic bigotry and legal peril. It not merely implies that gay and lesbian citizens choose their sexuality, but it denies the biological realities of sexual and gender identity.

Particularly at the time Barrett was coming of age, choosing to be gay would be a mighty masochistic choice unless one enjoyed humiliation from peers, scorn from family members, secrecy, risk of physical harm and, too often, terrible loneliness. Now, despite magnificent legal progress and a more accepting society, gay students and teachers are denied enrollment and employment at schools Barretts religion supports. Gays and lesbians are beaten by marauding gangs of thugs in areas of major cities and benighted rural towns.

Society and the law more easily shortchange gay and lesbian citizens when they claim (inaccurately) the infallibility of scripture and the notion that homosexuality is a choice too often accompanied by haughty language about conversion or psychiatric intervention.

Too many people are intimidated by religion and fail to speak up. The National Association of Independent Schools has a diversity standard requiring no discrimination on the basis of sexual identity yet accredits religious schools that exclude gay students and teachers. Hypocritical much? I confronted the association, but the board and president wiggled uncomfortably and sided with explicit bigotry, inaccurately citing the so-called ministerial exception accompanied by some convoluted babbling about a big tent. I dont want homophobes in my tent even especially in splendid ecclesiastic garb.

More as to Barrett: She was unwilling to affirm that climate change is at least partially due to human behavior. She couldnt go out on a limb and say tobacco causes cancer. She merely acknowledged that cigarette packages have warning labels. She wouldnt deny the president the power to unilaterally delay an election. She couldnt state whether voter intimidation was illegal. Fortunately no one asked her about up or down, black or white.

Although it may have been strategically wise, it was absurd that no Democrat examined her religious views. The idea that there can be no religious test for public office is a joke. As an enthusiastic atheist, Ive long recognized that I am unelectable. We will have a gay or Muslim president long before we inaugurate a non-believer, and I wouldnt bet the ranch on gay or Muslim.

Even among those claiming a more popular religious affiliation, oughtnt there be some inquiry about how far a candidates or nominees beliefs stray from the rational and empirical bases of our laws and secular social contract? Barretts written record, life choices, and confirmation hearing stonewalling suggest a woman who will be unable to divorce her lifelong indoctrination from her judicial contemplation.

This is not meant as an insult. Many things about her and her life are admirable, but she is ill-suited to sit on the nations highest secular court.

Finally, a word or two about Barretts (and others) originalism or textualism.

Originalism is the judicial approach that limits constitutional consideration to the text of the Constitution as written by the founders and by interpreting what they meant in the 18th century. It is cited as a judicial philosophy. It is not. It is a political philosophy masquerading as a judicial philosophy. It is no coincidence that the conservative justices march in lockstep. They are conservative. By limiting the scope of argument to the bare text, they may reject arguments of petitioners and respondents because the original text makes no mention of the redress they seek. Any legal scholar will tell you that this is done selectively, nearly always in support of a conservative political position. Pure originalism would have precluded nearly every social advance in American history womens rights, reproductive rights, voting rights, civil rights, gay rights, union rights, to name a few.

Barrett will almost certainly be confirmed and, in many ways, our rights and social contract will be rolled back to an era when Barrett and her conservative colleagues will be more comfortable, exclusive religious beliefs included.

Steve Nelson lives in Boulder, Colo., and Sharon. He can be reached at stevehutnelson@gmail.com.

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Column: Barrett confirmation will roll back social progress - Valley News