Two U.S. Supreme Court justices who effectively endorsed same-sex marriage by officiating at ceremonies will be ruling on whether or not the Constitution gives states the right to ban it.
A newly launched campaign, however, is raising questions about the justices’ controversial actions, contending they should recuse themselves from the case.
Arguments and legal briefs already are lining up against each other after the court announced it would review the 6th Circuit Court of Appeals decision that affirmed the right of residents of Michigan, Ohio, Tennessee and Kentucky to set limits on marriage.
The 6th Circuit opinion, written by Judge Jeffrey Sutton, so far has been the only one of five appellate decisions to affirm the right of states to set standards for marriage, which is not defined in the U.S. Constitution.
But now a campaign by the American Family Association is publicizing the fact that both Justice Elena Kagan, appointed by Barack Obama, and Justice Ruth Bader Ginsburg, the longtime leader for progressivism on the bench, have officiated at same-sex ceremonies.
“U.S. Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg should recuse themselves from any cases involving the homosexual marriage issue on the basis that they have conducted same-sex marriage ceremonies,” the campaign letter states.
Kagan performed a Sept. 21 same-sex marriage for her former law clerk, Mitchell Reich, and his partner, in Maryland. Ginsburg performed a same-sex marriage at the Kennedy Center for the Performing Arts in Washington, D.C., in August 2013, the campaign said.
“Both of these justices’ personal and private actions actively endorsing gay marriage clearly indicate how they would vote on same-sex marriage cases already before the Supreme Court,” AFA said.
But there’s a simple solution, AFA explains.
“Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Title 28, Section 455 of the United States Code states ‘any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’
“Both Kagan and Ginsburg have not only been partial to same-sex marriage, they have proven themselves to be activists in favor of it! … Urge your members of Congress to privately and publicly call on Justices Kagan and Ginsburg to properly and legally recuse themselves from cases involving same-sex marriage.
The Supreme Court did not reply to WND’s request for comment on the recusal issue.
Fox News reported Kagan, last September, officiated at the same-sex wedding in Maryland for former law clerk Reich and “husband” Patrick Pearsall.
At the time, Supreme Court spokeswoman Kathy Arberg said retired Justice Sandra Day O’Connor also had officiated at a same-sex ceremony. The event was held in 2013 in the lawyer’s lounge at the Supreme Court building.
NPR reported Ginsburg officiated in August at a ceremony for Michael Kaiser of the John F. Kennedy Center for the Performing Arts and government economist John Roberts.
Herbert Titus, of counsel to the law firm of William J. Olson, P.C., and a nationally recognized constitutional authority, said the concern is not about the retired O’Connor but about the sitting justices.
He said the issue of recusal usually comes up regarding financial conflicts of interest.
If a justice has a financial interest in a company or event involved in a case, he or she is not allowed to rule on it, he said.
However, he said, “I would think on an issue as filled with emotion and conflict as this … that a judge should not have put themselves in a position that either of these judges put themselves.”
Titus said the two justices must have known at the time that it was almost inevitable for the issue to be put to the Supreme Court, “yet they went ahead and put their official imprimatur on same-sex marriage.”
He said the likely response from the justices will be that they believe that they can be neutral on the issue of same-sex marriage.
“It tells you an awful law about the culture,” Titus said. “These people are immersed in the homosexual culture to the point they would step out of their role as a justice to officiate in a wedding that would put them in a position of lending their name and prestige to same-sex marriage when they had every good reason to believe the issue would be before the court,” he said.
He said if the court is able to follow its own precedent, it would rule against homosexual marriage.
“Same-sex relationships were universally condemned by common law as a crime against nature,” he said, describing the court’s position over the centuries.
But he said the current “revolution” in the law has changed that.
Among the dozens of groups that already have submitted legal arguments is the Thomas More Law Center.
Chief Counsel Richard Thompson said in a statement released to WND: “The 6th Circuit was the only court of appeals that sustained the will of the people expressed by their overwhelming votes in favor of traditional marriage. And if the Supreme Court strikes down these state laws defining traditional marriage, it will be the worst example of judicial activism since Roe v. Wade. It will lead to further persecution of Christians who oppose same-sex marriage on religious grounds, and over time, the ultimate the demise of marriage and Western civilization as we know it.”
He said the “notion of same-sex marriage has been foisted on our culture by well-planned and executed public relations campaigns and the tremendous influence of militant homosexual activists in the news media, entertainment industry and most of academia.”
The justices are expected to hear oral arguments in April, with a decision probably this summer.
The court already has scheduled two-and-a-half hours for oral arguments, up from the usual one hour.
Analysts have said that after previous rejections, the progressives on the court probably decided to take up same-sex marriage after determining they had the votes to affirm it.
But they say that to reach that conclusion, the court would have to find a state has no rational basis for laws defining marriage as a union of one man and one woman, potentially opening up a legal door the justices may not want to open.
For example, critics have noted that once the traditional marriage definition is killed, any other definition, such as “two people,” could likewise be killed with the same arguments. In fact, a justice on the California Supreme Court noted in one opinion it’s inevitable that approving same-sex marriage would lead to arguments for incest, pedophilia, polygamy and more.