Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion articles on CNN.
Barring the sudden emergence of a collective conscience, Senate Republicans will confirm Judge Amy Coney Barrett to the Supreme Court on Monday. They have told the public – and reiterated with a 12-0 vote of her nomination out of the Senate Judiciary Committee – that this is a perfectly legitimate path forward, and that Barrett is a highly qualified judge who will follow the law. What they have not mentioned is her extreme ideology.
Those claims are also an insult to our intelligence. This confirmation, which breaks both well-established norms and formal Senate rules, is highly unusual, and profoundly disrespectful.
Barrett’s Catholic faith in particular has been the subject of much conservative defensiveness – leading Republicans claim, often citing an inartful comment from Sen. Dianne Feinstein during Barrett’s 2017 confirmation hearing for the 7th Circuit, that she’s being targeted by liberals for being religious, and that any question of how her faith may impact her jurisprudence is akin to an unconstitutional religious test. But it’s Barrett herself who brought religion into it, making clear in her writings that her personal religious views also shape her professional ones. Her academic work has reflected her view that Roe v. Wade is not good, settled law – even though she told the Judiciary Committee another story.
Most revealingly, she co-wrote a law review article suggesting that Catholic judges are not able to fairly decide death penalty cases that conflict with their religious beliefs and should therefore recuse themselves in some cases – which raises a number of troubling questions (that were not satisfactorily addressed by her during her confirmation) about potential cases involving abortion, contraception or LGBTQ rights, which are all also issues the Catholic Church takes a strong stance on. “Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” Barrett wrote. Catholic judges, the article says, must abide by their oath of office, but also by the church’s moral teachings. And tellingly, Barrett argues that the church’s moral teachings on abortion are even stricter than those on the death penalty: “The prohibitions against abortion and euthanasia (properly defined) are absolute; those against war and capital punishment are not.” She has said since her nomination that judges are not policymakers and must set aside their own policy views. Yet questions remain.
I’ll be honest: I hope Barrett will exercise her moral compass on the Supreme Court when it comes to capital cases. The death penalty is a moral outrage, and the fact that America executes so many of its citizens should be a deep shame on our nation. But the case Senate Republicans are making for Barrett is that she’s a judge who follows the law, not her religious beliefs. The truth is her answers to Congress and own writings tell a totally different story.
Some of her beliefs, statements and omissions, if made law, could do tremendous damage to millions of Americans. For instance, unlike Justice John Roberts who during his confirmation hearings affirmed the 1965 case Griswold v. Connecticut which established privacy rights for married couples to use contraception and paved the way for Roe v. Wade, Judge Barrett declined to endorse it. She dissented from a 7th Circuit Court ruling that let stand a temporary block on the Trump administration’s policy to disadvantage green card applicants who apply for any public assistance. In a 2017 law review essay, Barrett criticized the rationale Roberts used to vote to save the Affordable Care Act, saying he pushed the law “beyond its plausible meaning to save the statute.” In 2006, she added her name to a “right to life ad” sponsored by a group that opposes abortion that called for “an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” Ten years later, Barrett said in a speech that while she believed that while Roe wouldn’t be overturned, abortion access could eventually be limited.
Meanwhile, the United States is in trouble. Many of the rights that LGBTQ people and women hold are not just up for debate – an indignity that is maddening, but not new – but now, truly under immediate threat. On LGBTQ rights, Barrett is poised to join a conservative majority on the Supreme Court, some of whose members have already expressed hostility to the Obergefell v. Hodges decision legalizing marriage equality. And yet, those justices seem to be more conservative than the Pope himself on questions of same-sex relationships. The Pope’s recent comments about the dignity of LGBTQ people and the Catholic obligation to treat all people as children of God aligns with how a great many Catholics actually live – and, according to a recent report from the Associated Press that elicited a strong defensive response from Senate Republicans, stands in sharp contrast to Barrett’s own choice of school for her children and of organizations she joined.
Millions of Catholics the world over have refused to discriminate against their LGBTQ brothers and sisters, despite the church’s discriminatory teachings about homosexuality. Now, Pope Francis has gently encouraged Catholic people and institutions to be kinder and less judgmental. That timing should not be treated as a coincidence; his words underscore to Americans, Catholic or not, that devout faith need not be synonymous with judgment or discrimination.
While Pope Francis advocated for and modeled greater acceptance of LGBTQ people in the church – at least saying the church should treat gay people like children of god and respect same-sex civil unions, just not marriage – Barrett has, according to the AP, been a member of groups – Trinity Schools, “affiliated” with People of Praise – that go out of their way to exclude and stigmatize not just LGBTQ people, but their children. She voluntarily joined People of Praise, which according to former members of the group cited by AP holds hostile views toward LGBTQ people and is known for a patriarchal interpretation of Catholic doctrine. And she sat on the board of Trinity Schools, a network of private Christian schools that also according to the AP, not only barred LGBTQ teachers from employment but refused to admit the children of same-sex couples. The school denies they discriminate, but if this reporting is true, Barrett sent several of her own children to a Trinity school where they would be segregated by school policy from children of LGBTQ families. Trinity Schools, Inc. has not returned repeated requests from CNN for comment.
Trinity Schools have the right by the First Amendment to exclude LGBTQ kids and kids of LGBTQ parents. But Barrett wasn’t forced to send her kids there, nor to support and shape the school’s mission by sitting on the board. That was a choice. If the reporting is true, that choice is not one a person who affirms the rights and dignity of LGBTQ people would have made.
Barrett’s views on abortion rights are also clear. Her defenders say those views are personal, and she will rule according to the law of the United States. But Barrett herself has written that orthodox Catholics are obligated on the most “absolute” of church teachings to follow the demands of their faith.
Barrett will be confirmed. She said the right things during her confirmation hearings, and surely she will wrap it up in the language of originalism. But let’s not kid ourselves: Her beliefs are precisely why President Donald Trump nominated her to the court. Once she’s on the bench, we will all see the defenses of her for the big lies they are. But by then, it’ll be too late.