The calls for Supreme Court Justices Elena Kagan and Ruth Ginsburg to recuse themselves from the same-sex marriage case are intensifying as the court prepares to hear arguments April 28.
Many defenders of traditional marriage believe the case will impact virtually every facet of American life and cast a shadow larger than the 1973 Roe v. Wade decision that created a right to abortion and so far has cost some 50 million lives.
Fox News reports Kagan and Ginsburg are being urged to recuse themselves because they both have tacitly endorsed same-sex marriage by performing ceremonies. Also cited is Kagan’s prior work to promote homosexual rights and Ginsburg’s public commentary on the issue.
See the Fox News report:
The American Family Association launched a campaign urging citizens to explain to their representatives in Congress why the two justices shouldn’t participate in the case.
“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.
Fox News reported Kagan performed a Sept. 21, 2014, same-sex marriage for her former law clerk, Mitchell Reich, and his partner, in Maryland. NPR reported 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 contended.
“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 campaign said.
Those actions alone should be reason enough for recusal, according to Brian Camenker, whose Mass Resistance organization has released a detailed report on Kagan’s pro-homosexual activism while she was at Harvard.
“Federal law is clear, if there’s a perception of bias,” he told WND. “There is no question there is a question of bias [here].”
He said the case shouldn’t even be at the court, since it’s a claim under the 14th Amendment’s equal protection requirements. All people in the United States already are being treated equally, he said, in that they can marry a person of the opposite sex.
His report, which he compiled with Amy Contrada of Mass Resistance and Peter LaBarbera of Americans for Truth About Homosexuality, originally was published when Kagan was a candidate for the court.
It’s been updated now and re-released.
The report is blunt: “Kagan is committed to the radical campaign pushing acceptance of homosexuality and transgenderism as ‘civil rights.’ Her unprecedented activism supporting that view as dean of Harvard Law School (2003-2009) calls into question her ability to judge fairly and impartially on same-sex ‘marriage’ and other homosexuality- or transgender-related issues that may come before the nations’ highest court.”
The report continued: “There should be grave concern over Kagan’s issues advocacy concerning ‘sexual orientation.’ Even before her nomination to the court, her enthusiastic and committed pro-homosexuality activism at Harvard (including her recruitment to the faculty of radical ‘gay’ activist scholars like former ACLU lawyer William Rubenstein and elevation of radical out lesbian Professor Janet Halley) was highly significant for the nation. Now, it is imperative that senators and the U.S. public gain an accurate understanding of the radical, pro-homosexual environment that was Kagan’s home at Harvard – and the GLBT legal agenda that Kagan herself helped foster as dean.”
- Kagan recruited former ACLU lawyer (and former ACT-Up activist) William Rubenstein, an expert on “queer” legal issues.
- Kagan promoted and facilitated the “transgender” legal agenda during her tenure at Harvard, including a “Transgender Law” course.
- She “encouraged Harvard students to get involved in homosexual activist legal work.”
- She “engaged in ongoing radical advocacy opposing ‘Don’t Ask Don’t Tell’ and demanding an end to the ban on homosexuals serving in the military. Her highly partisan actions are unbecoming a future judge – especially one who would be called upon to adjudicate such weighty and divisive matters.”
- She continued to encourage students at Harvard to “come up with ideas of how to harass” military recruiters even after she had lost a legal fight that tried to keep them off campus. “Kagan’s actions blatantly disrespected our military and exposed her as the out-of-touch, socially leftist academic that she is.”
Kagan also moderated a panel on “LGBT law” that was promoted as “A Celebration of LGBT Life at Harvard.”
The report said: “In her role as dean, Kagan oversaw the HLS curriculum and new faculty appointments. Thus, she must have endorsed the following HLS offerings as legitimate subjects and viewpoints (i.e., ‘gay rights’ and ‘transgender rights’ are true civil rights; any disagreement or disapproval is therefore illegal discrimination). One of her major efforts as dean was ‘modernizing’ the curriculm including eliminating a required Constitution course, and instead requiring international law courses.”
Kagan also attended the first reunion of the Harvard Law School LGBT alumni, the report said. “Reportedly it was the first event of its kind in the nation.”
Ginsburg, meanwhile, apparently has not been involved in public advocacy, but she has voiced her opinion, as WND reported.
See the comments:
The 81-year-old, far-left justice revealed her preferences in a Bloomberg News interview when she said it “would not take a large adjustment” for Americans “should the justices say gay marriage is constitutional.”
“How can Ginsburg possibly think that it’s proper judicial conduct for her to speak out on this issue while the marriage case is pending before the court?” asked National Review columnist Ed Whelan. “If she had any sense of her duty to maintain both the appearance and the reality of impartiality, she would recognize that she is now obligated to recuse herself from the case.
“But of course she won’t.”
WND contacted the Supreme Court for comment, but messages left for both Ginsburg and Kagan were not returned.
Supreme Court staffers also declined to respond to WND requests for copies of or references to any code of ethics that the justices would follow. Most courts stipulate that even the “appearance” of partiality on an issue should be avoided by all judges.
In the Bloomberg article, Ginsburg said: “The change in people’s attitudes on that issue has been enormous. In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor – we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”
Her arguments appear to bear out a warning from a member of the Supreme Court of California, who wrote a dissent when that court, in 2008, created same-sex marriage in the state.
It was Justice Marvin Baxter who warned of the consequences of basing a court’s opinion on perceptions of social changes. He noted the decision overturned a “deeprooted” standard defining marriage as the union of one man and one woman.
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?” Baxter wrote.
The National Organization for Marriage agreed with Whelan.
“Even the attempt to posture that as a judge you’re obeying a code of ethics is now gone,” Brian Brown, the group’s president, told WND when the push for recusal first arose.
“They do whatever they want. She should recuse herself. It’s embarrassing for the judiciary.”
Brown said basic judicial ethics “that any judge should follow would clearly advise against commenting on a case currently coming up before you.”
Herbert Titus, of counsel to the law firm of William J. Olson, P.C., and a nationally recognized constitutional authority, earlier told WND the issue of recusal usually comes up regarding financial conflicts of interest.
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 justices likely would say 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.”
WND reported that two members of the Supreme Court, Justices Clarence Thomas and Antonin Scalia, issued a statement that justices should not be commenting about such cases.
In an interview with WND, longtime conservative commentator Pat Buchanan, the author of “Suicide of a Superpower: Will America Survive to 2025?” and other bestsellers, spoke on the controversy of redefining marriage.
Buchanan dismissed arguments that “gay”-rights activists are simply asking for political freedom or the same rights as any other citizen.
“The LGBT militants are not asking to be left alone,” he said. “They are demanding that we accept the morality of homosexuality and same-sex marriages, and manifest that acceptance, under pain of law and sanctions, in our daily lives.”
Buchanan added: “As the Romans demanded of the Christians, the LGBT fanatics want us to burn incense to their gods. The answer is no. If it comes to civil disobedience, so be it.”
WND also reported a team of prominent Christian leaders worked on a statement to inform the public – including justices on the U.S. Supreme Court who soon will hear arguments on the issue – that they will engage in civil disobedience rather than follow a ruling that establishes homosexual marriage in the United States.
Among those leading the charge are James Dobson of Family Talk Radio, Rick Scarborough of Vision America Action, Mat Staver of Liberty Counsel and James Robison of Life Today, whose new publication called the Stream reported on a telephone conference call discussing the issue.