The calls for Ruth Bader Ginsburg to drop out of the same-sex marriage case looming before the U.S. Supreme Court are surging after she gave Bloomberg News an interview in which she lobbied for the practice.
The 81-year-old, far-left justice revealed her preferences 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?” wondered 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 Elena Kagan, who like Ginsburg has officiated at same-sex marriages, 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 that 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.
Alabama Supreme Court Chief Justice Roy Moore, who is citing jurisdictional issues, court precedent and state sovereignty to reject a lone federal judge’s order that the state’s constitution has to be changed to endorse same-sex marriage, agreed.
“I’ve said the very same thing. Incest is next. Or polygamy,” Moore told WND earlier.
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.
“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.”
WND previously noted both Ginsburg and Kagan, who was appointed by Barack Obama, have officiated at same-sex ceremonies.
The American Family Association launched a campaign offering a way for citizens to tell their representatives in Congress that the two justices shouldn’t rule on 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 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 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 campaign said.
The case coming before the Supreme Court is a ruling from the 6th Circuit, written by Judge Jeffrey Sutton, that affirmed the rights of states to define marriage.
When Kagan performed the ceremony in September, 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.
At the time, 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.
WND reported that two members of the Supreme Court, Justices Clarence Tomas and Antonin Scalia, issued a statement that justices should not be commenting about such cases.
Their statement came after the Supreme Court refused to extend a stay of an order in the Alabama dispute.
Wrote Thomas: “In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question.”
Thomas, who was joined by Scalia, pointed out that the justices essentially were admitting what they would decide, even before arguments, expected in April, are heard in a pending dispute over same-sex marriage.
Thomas said the decision “may well be seen as a signal of the court’s intended resolution.”