The Corner

Law & the Courts

Democrats Smear Barrett for Saying ‘Sexual Preference,’ a Term Used by Biden and Ginsburg

Supreme Court nominee Judge Amy Coney Barrett speaks during the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., October 13, 2020. (Susan Walsh/Reuters)

To get a sense of how well Amy Coney Barrett did on the first day of her Supreme Court confirmation hearings, you have to appreciate the fact that the biggest “controversy” of the day was the fact that she uttered the words “sexual preference” rather than “sexual orientation” — something that Joe Biden did in May 2020 and Ruth Bader Ginsburg did in 2017. 

At the hearing on Tuesday, Barrett said she “would not discriminate on the basis of sexual preference.”

A tweet by an MSNBC producer calling the term “offensive and outdated” quickly went viral (it has now been retweeted 26,000 times). Senate judiciary committee member Mazie Hirono, a Democrat from Hawaii, later said the term was “offensive and outdated.” Barrett apologized: “I certainly didn’t mean and would never mean to use a term that would cause any offense to the LGBTQ community.”

Was the term actually offensive? Joe Biden used it in May 2020. Ruth Bader Ginsburg used it in 2017. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, also used it in 2017. Democratic members of the judiciary committee Dick Durbin and Richard Blumenthal have said “sexual preference” during speeches on the Senate floor in the past decade. You can find its more recent usage in the Huffington Post and The Atlantic.

A gay-rights advocate used the term in a September 25, 2020 interview with the gay-rights magazine The AdvocateAs far as I can tell, no one complained about any of this. But that didn’t keep a number of Democratic senators, Democratic activists, and reporters from suggesting Barrett was maybe some kind of a bigot for using the term on October 13, 2020. See the coverage and the complaints by Democratic senator Patty Murray, Democratic senator Cory Booker, Slate’s Mark Joseph Stern, Politico’s Matthew Choi, Vox’s Li Zhou, David Axelrod, Guy Cecil of Priorities USA, Lambda Legal, and GLAAD.

The story went from hypocritical to Orwellian when Merriam-Webster’s dictionary apparently updated its definition of the word “preference” in response to the controversy. It is now defined as “offensive” when used to refer to sexual orientation, but that was not Merriam-Webster’s definition as recently as September 28, 2020.

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