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Amy Coney Barrett’s Apology Over ‘Sexual Preference’ Just A Second Blow of the Same Dogwhistle

The following piece was originally posted in October, 2020.

Supreme Court nominee Judge Amy Coney Barrett is now on an apology tour for using the term “sexual preference,” instead of the updated, “sexual orientation.” During her confirmation hearing Tuesday, Judge Barrett responded to Sen. Dianne Feinstein’s (D-Calif.) question about her plans to dismantle same-sex marriage by declaring that she has, “never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”

First, let’s cut the crap. Judge Barrett did not simply mis-speak. She prepared extensively for this hearing — which, by the way, was not her first federal judicial confirmation hearing. The question to which she’d been responding was as predictable as the others about abortion had been. She used the phrase “sexual preference” purposefully, knowingly, and intentionally, and with malice aforethought — if we’re going to use legal lingo.

What’s the difference, you may wonder. Isn’t “orientation” just a 2015 update, to coordinate with “BiPoc” and “cisgender” as they came on the scene?

Well, not really.

Language has evolved such that “sexual preference” is an outdated term — but there’s more to it than simply a revamp of the syntax. And the people who should understand that most clearly are those who have studied constitutional law.

Here is a very basic explanation why it matters. Under current interpretation of the U.S. Constitution, certain groups of people are entitled to heightened legal protection from discrimination; others are still protected, but on a far lesser scale. When a law separates people based on classifications of race, religion, national origin, or gender, that law rarely survives constitutional scrutiny. Those classifications are considered “suspect,” meaning that we require the related laws to serve an important purpose, and to be crafted in a way that is closely tailored to meet their objectives.

By contrast, laws that separate people based on their occupation (requiring, for example, that doctors pass a licensing exam), their age (such as child labor or other child-protective laws), or their income level (such tax brackets) are viewed with a far more accepting eye. Those laws, too, must be at least ostensibly well-intentioned — but we’re a lot looser with the requirements.

I won’t go into the nuances here — but I’ll say this: the system makes sense. There are very few contexts in which it would ever make sense to treat people of different races differently, but the same isn’t true for people of different occupations or income levels.

The rules for getting onto that near-sacred list of “suspect classes” are also complex, but one big factor is “immutability.” When something is immutable — or unchangeable — it’s part of you. It’s who you are, as opposed to what you do. These are the things that the law is most committed to protecting, because they are most closely tied to your identity. [And yes, for those following along at home, it’s also why “Black Lives Matter” makes sense, but “Blue Lives Matter,” does not.]

You may have noticed that sexual orientation and gender identity are not on the “suspect” list. The Supreme Court is the body that sets the rules for which classes are suspect and which are not — and thus far, neither sexual orientation nor gender identity has made the cut. What the Court has done, however is to protect LGBTQ+ rights in some other important ways.

SCOTUS has chosen to protect LGBTQ+ people from discrimination in the workplace — a decision surprisingly penned by conservative Justice Neil Gorsuch. Not long ago, the Court also ruled that the right to marry someone of the same sex was a fundamental. Gay people are getting married, having children, and creating families; for the most part, society has gotten over the drama of it all.

As time passes, SCOTUS inches closer and closer to acknowledging what most of us have come to know: that sexual orientation is an immutable characteristic — an unchangeable part of every person that is no more a choice than is the color of their eyes or their dominant handedness. [I won’t go into gender identity now, because it’s not quite the same as sexual orientation, and not directly relevant to Judge Barrett’s comments.]

By incorrectly terming “sexual orientation” as “sexual preference,” Judge Barrett signaled those who were listening. She alerted them that if given the choice, she’d rule that being gay is a choice. She may well think it’s a valid and acceptable choice. But she still thinks it’s a choice. And when it comes to constitutional interpretation, that’s the real problem, especially given that she gave that answer in response to a question about the future of Obergefell v. Hodges, which solidified same-sex marriage in Constitutional rock.

Barrett’s unconvincing apology for her choice of words came only after an epic scolding by Sen. Mazie Hirono, (D-Hawaii), who pointed out, “if it is your view that sexual orientation is merely a ‘preference,’ as you noted, then the LGBTQ community should be rightly concerned whether you will uphold their constitutional right to marry.”

Judge Barrett’s words will ring comfortable with an entire swath of America that pines for yesteryear, when political correctness was a punchline instead of a prerequisite, and when sexuality was something absent from polite conversation. She’s their ally, she’s told them. She’ll fight for their right to choose — so long as we’re talking about choosing which people are deserving of dignity and which are not.

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