Sen. Lindsey Graham (R-S.C.), committee chair, noted Barrett’s “pledge” on the previous day to “set aside” the Catholic Church’s teaching when making decisions from the bench.
“I hope people also understand that you have made a pledge to the committee and to the country at large that you will set aside whatever religious views you have when it comes time to decide the law,” he said.
Barrett is a Catholic judge on the Seventh Circuit Court of Appeals, and was formerly a law professor at the University of Notre Dame.
Although she repeatedly declined this week to opine on Supreme Court rulings on abortion, contraception, and other cases, some senators still tried to get her to agree that Griswold v. Connecticut—the Court’s striking down of contraception bans for married couples—was correctly decided.
On Monday, Sen. Chris Coons (D-Del.) had implied that Barrett’s confirmation could lead to Griswold “being struck down.” On Wednesday he brought up Griswold, but Barrett told him that the ruling is in no danger of being overturned.
“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” Barrett said emphatically.
She added that the questions about Griswold were merely for senators “to lay a predicate” for other questions about Roe v. Wade, the Court’s legalization of abortion.
“Griswold does lie at the base of the doctrine that very much is challenged in federal court,” she later told Sen. Josh Hawley (R-Mo.).
Senators also broached the topic of “super-precedent” on Wednesday in relation to abortion cases.
Democratic senators have cited the legal theory to argue that Roe v. Wade has “super-precedent” and thus is even more protected from reversal than a normal Court decision would be.
Barrett on Wednesday affirmed that the abortion cases Roe v. Wade and Planned Parenthood v. Casey, as well as the gun rights case D.C. v. Heller, are not “super-precedent” as they are the subject of active litigation. According to some legal scholars, she has said, cases that are “super-precedent” are those that are so well-established, they are challenged by virtually no one.
When asked how she would rule on a late-term abortion legal case, Barrett told Sen. Thom Tillis (R-N.C.) that she review previous abortion rulings “and their application to particular contours of the law.”
Although she did not opine on certain religious freedom cases, Barrett did explain the Court’s reasoning behind multiple church-state rulings.
When Sen. Mike Lee (R-Utah) asked her about the freedom of churches to access public benefits, she said that the Supreme Court “has been very clear that religious institutions can’t be discriminated against” and barred from public benefits simply on account of their religious status. She was referring to cases involving state prohibitions on religious groups getting public benefits.
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Barrett also explained another religious freedom case decided by the Court this summer, the ministerial exception case of Our Lady of Guadalupe School v. Morrisey-Berru.
In that case, the Court ruled that two Catholic grade school teachers qualified as religious ministers; thus, the schools were protected from employment discrimination lawsuits when they terminated the teachers’ contracts due to performance.
The case was significant, as religious schools could face an increase of employment discrimination lawsuits in the future by teachers fired for contracting same-sex marriages.
Barrett on Wednesday acknowledged that courts could have difficulty determining just who qualifies as a minister of religion; a teacher might not teach religion at a school, but might still be expected as part of his or her job to lead students in prayer and attend religious services with them—both possibly “ministerial” activities.
The Court’s decision, Barrett said, “gives a lot of deference to the schools” in these cases.
Barrett was also asked about the distinction of religious freedom in the First Amendment, as detailed in a Sept. 3 majority opinion she joined on the Seventh Circuit.