So far, Amy Coney Barrett’s confirmation hearings have been delightfully boring.
Viewers have witnessed extension discussions about the Affordable Care Act and the concept of severability, the jurisprudential doctrines of originalism and textualism, and how those philosophies conflict with a more activist understanding of law. By and large, these hearings have been an enlightening affair. It was too good to last.
What had been absent from these confirmation hearings is what transformed Brett Kavanaugh’s ordeal into a must-watch spectacle: an identity-based grievance. That, not law or philosophy, is what gets progressive activists out of bed in the morning. There were some early efforts to manufacture such a claim. A critical evaluation of Judge Barrett’s religious affiliations and the allegation that she had adopted two black children only to play “white colonizer” briefly sufficed. But they did not derail her nomination, and Judge Barrett has only grown more popular.
And so, a new grievance has bubbled up from the progressive left: Judge Barrett, her critics now imply, is homophobic. But what began as a far-fetched attempt at character assassination has taken on a terrifying life of its own.
The episode began Tuesday morning when, after being questioned by Sen. Dianne Feinstein about her views on LGBTQ issues, Barrett replied that she had “never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference.” This, we are now instructed, was a slip—a tacit affirmation of her deep-seated prejudices.
At 10:15 am, MSNBC producer Kyle Griffin declared Barrett’s use of the phrase “sexual preference” to be “offensive and outdated” because it “implies sexuality is a choice.” Rhode Island Rep. David Cicilline followed suit 31 minutes later. “Did Judge Coney Barrett really use the 1970s term ‘sexual preference?’” he asked incredulously. At 11:02, the popular LGBTQ advocate Charlotte Clymer insisted that Barrett had, intentionally and by design, declined to “recognize or affirm trans people.” By 11:05, New York state House candidate Ritchie Torres expanded the terms of engagement by averring that his “sexual preference” was no more a choice than his race or ethnicity, thereby suggesting that Barrett’s bigotry knows no bounds.
By early that afternoon, this uproar was no longer exclusive to social media. A Slate article argued that the “archaic expression” Barrett deployed was “an anti-gay dog whistle to the religious right.” The post’s author, Mark Joseph Stern, made no allowances for ignorance. This cannot be “dismissed as a poor choice of words,” he wrote. Barrett had inadvertently revealed her plan to “condemn gay Americans to second-class citizenship once again.” By Tuesday evening, these sensational allegations found their way into the mouth of the reliably intemperate Sen. Mazie Hirono. She confronted Barrett with the charge that her use of this “outdated term” was no accident. “I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community,” Barrett replied. But Barrett’s contrition will not be allowed to defuse the issue her opponents so desperately need.
Those who defend the notion that “sexual preference” is a universally acknowledged slur have some supporting evidence. But that evidence is itself reflective of the politically motivated revisionism we’ve been forced to endure.
Webster’s dictionary notes that the term is “offensive,” though that caveat is at most 17 days old (and could be only hours old). Furthermore, as many sympathetic reporters observed, the LGBTQ advocacy group GLAAD notes that both the New York Times and the Associated Press have cautioned against using the term since 2013. The only problem with that is that neither institution, to say nothing of members of the gay community, followed that guidance.
The New York Times quoted a retail expert who used the phrase “sexual preference” to describe banal market research in 2015. Another 2015 Times piece profiling the fashion designer Marc Jacobs, who is gay, had no problem with the term. A 2016 essay on gays and lesbians’ experience in India deployed the phrase without qualification in the article’s copy. So, too, did a 2017 piece on “sapiosexuality” (the attraction to intellect regardless of gender or sexual identity). If this was all terribly offensive, the arbiters of such things didn’t seem to notice.
Nor did the AP observe its own guidelines. A 2015 dispatch quoted Harvard Law School Dean Martha Minow affirming that institution’s aversion to “expressions of hatred” of all kinds, including those based on “sexual preference.” Their 2016 obituary for the musical artist George Michael noted that he had become an icon within the gay community even “before he revealed his sexual preference.” In 2019, a university professor who specializes in psychiatric genetics used the phrase to reinforce Sen. Hirono’s contention that sexual identity is “immutable” when discussing a recent “study of the genetics of human sexual preference.” As recently as June of this year, an AP report quoted an elected official in Oklahoma who used the term to demonstrate his commitment to anti-discrimination and equality.
Media is not alone in its ignorance. Academia didn’t get the memo either. Academic institutions—a field that is by no means dominated by religious conservatives—have published and continue to publish studies on the sociological, biological, and psychological aspects of human “sexual preference.” “High School Musical” creator Kenny Ortega used the phrase proudly in an interview with the LGBTQ magazine the Advocate a mere 19 days ago. And, of course, some of the Democratic Party’s leading lights, including people such as Ruth Bader Ginsburg and Joe Biden, have used the term as recently as this year. And all to the sound of silence from Judge Barrett’s critics.
We should not mince words. What we’re witnessing is a concerted, perhaps even coordinated, effort to manufacture an allegation of bigotry from whole cloth and to force previously neutral language to comport with that accusation. And all to assault the character of one politically inconvenient woman.
This is retroactive conditioning on a grand scale. Before Tuesday, this was a term that most well-meaning people used within perfectly explicable context to convey their commitment to tolerance and egalitarianism. But now, with a Supreme Court seat on the line, it is being perverted to mean the precise opposite of tolerance.
If the goal here were a fuller understanding of the gay community’s sensitivities, we would not be witnessing an inquisition. Barrett’s critics would be educating her rather than accusing her. But this is not a good-faith display on the part of the theatrically incensed—it is a nakedly opportunistic fabrication. And we are all expected to subordinate what we know to be true to the party line. That is totalitarianism, and our moral obligation to oppose its encroachment on every facet of public and private life is as good an argument as any for Judge Barrett’s confirmation.
