Sen. Mazie Hirono, D-Hawaii, said the LGBTQ community should be "concerned" about Judge Amy Coney Barrett's confirmation to the Supreme Court after she said she wouldn't discriminate against "sexual preference."
"Sexual preference is an offensive and outdated term, it is used by anti-LGBTQ activists to suggest that sexual orientation is a choice -- it is not," Hirono said.
The Hawaii Democrat said she was "disappointed" that the circuit court judge declined to weigh in on whether she agreed with the majority in Obergefell v. Hodges, the Supreme Court case that granted same-sex couples the right to marry.
"So even though you didn't give a direct answer I think your response did speak volumes," Hirono said. "Not once but twice you used the term 'sexual preference' to describe those in the LGBTQ community."
Hirono said such an "offensive and outdated term" is used by "anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not. Sexual orientation is a key part of a person's identity."
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"The LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry," Hirono concluded.
Sen. Joni Ernst, R-Iowa, later asked Barrett if she had any encounters from earlier she'd like to elaborate on and Barrett brought up her exchange with Hirono.
"I certainly didn't mean and would never mean to use a term that would cause any offense in the LGBTQ community. So if I did, I greatly apologize for that," the Supreme Court nominee said.
Later Sen. Cory Booker, D-N.J., asked Barrett about her use of the term again.
"In using that word I did not mean to imply that it is not an immutable characteristic or that it's solely a preference," she said. "I fully respect the rights of the LGBTQ community. Obergefell was an important precedent of the court."
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Barrett was repeatedly pressed on how she would rule on cases related to same-sex marriage. She declined to engage in hypotheticals, citing the "Ginsburg rule" all Supreme Court nominees have followed since Justice Ruth Bader Ginsburg in 1993.
Two Supreme Court justices, Clarence Thomas and Samuel Alito, came out earlier this month to say the case that mandated all states recognize same-sex marriages, is "found nowhere in the text" of the Constitution and threatens "the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman."
Booker pressed Barrett on the pair of justices' statement.
"Obergefell is an important precedent," the judge said. "As for why the justice have called for its overruling I don't know... You'd have to ask them."