Spartacus's "Immutable" Recusal Trap
Late in the day, Senator "Spartacus" Booker asked Judge Barrett to take a position about facts that are disputed in many religious freedom v. LGBT case: whether sexuality is immutable?
The cultural war has been raging for decades - illegitimately - in the judicial branch. Presently, it burns hottest over questions of when religious freedom rights (grounded in the very text of the constitution) must fall before the LGBT agenda (which is not grounded in the text of the constitution).
JAG is presently advising a small family business that has been targeted by the Goliath LGBT groups who demand that all Christian business owners deny the clear text of Scripture and instead take an oath to affirm the ever expanding LGBT-Infinity agenda.
Thankfully, Barrett has been clear in her writings that questions impacting the LGBT agenda are "who decides" questions. This simply means that legislators - not judges - decide these matters.
For example, in a 2016 speech, then Professor Barrett correctly stated:
"whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present ….[I]t’s a 'who decides' question."
"So, I think Obergefell [litigation creating homosexual marriage through judicial fiat] and what we’re talking about for the future of the Court, it’s really a who decides question.”
Amy Coney Barrett, Justice Scalia and the Future of the Court, Nov. 3, 2016, Jacksonville University Public Policy Institute (emphasis added); available at https://www.youtube.com/watch?v=7yjTEdZ81lI at 25:42 – 28:19, and 30:32 - 32:26 (Emphasis added.)
Despite Barrett's clear record and constitutional delegation of legislative matters to legislators, Senator Booker - never one to take "no" for an answer - bullied her more and more. Surely Booker had two goals in this "Catch 22" trap: (1) force Barrett to agree with his political position, or (2) force her to disagree and take a position on "facts in dispute" that are endowed by LGBT litigators in many of their cases.
If Barrett takes a position on Booker's agenda, then Barrett might have to recuse in most, if not all, LGBT cases. Perhaps that Booker's real goal.
However, for the limited purpose of this hearing, Judge Barrett need not pick a side. After all, it's a "who decides" question.