A couple of constitutional experts have written an open letter to the attorneys general, governors and lawmakers in Michigan, Ohio, Tennessee and Kentucky pleading with them to file a request for a rehearing before the U.S. Supreme Court on the decision that created same-sex “marriage” across the nation.


Well, for one thing, Elena Kagan and Ruth Ginsburg acted “unethically and unlawfully” in participating in the case after they publicly had taken a position on the outcome.

That’s according to the letter from Herbert W. Titus and William J. Olson. They are with the law firm of William J. Olson, P.C.

Theirs is part of a series of reports on the issue of marriage, under funding from the United States Justice Foundation.

Titus taught constitutional law for 26 years and concluded his academic career as the founding dean of Regent Law School. Olson served in three positions in the Reagan administration. Together they have filed more than 80 briefs in the U.S. Supreme Court.

They explain that only officials for the four states involved in the case are allowed to request a rehearing. The deadline is July 21.

“Here is why a petition for rehearing must be filed,” they explain to the state officials. “Since the Supreme Court’s decision, it has been assumed that the ‘rule of law’ requires not just your four states, but every state, to recognize the ‘fundamental right’ of same sex couples to marry. However, this assumption overlooks two critical factors: (i) whether some of the justices who participated in issuing that decision did so unlawfully; and (ii) the nature of the express limitations set out by Justice Kennedy in that decision.”

Their explanation continued, “The participation by Justices Ginsburg and Kagan in the Obergefell decision violated federal judicial ethics, and a federal statute. These justices were under a duty to recuse and not participate in that decision. Without their two votes in favor of same sex marriage, the traditional marriage laws in your states would have been upheld on a vote of four to three, with two justices not participating. Until the decision was issued, the American people had no way to know if these two justices were going to recuse. Now that the decision is issued, we know that they did participate – unethically and unlawfully.”

The lawyers said two motions for recusal were filed with the U.S. Supreme Court, but never ruled upon.

“Indeed, neither was even posted to the Supreme Court docket sheets until the court was embarrassed for failure to post them. Even then, only one of the motions shows on those docket sheets, mislabeled a ‘request’ rather than a ‘motion,'” the lawyers write.

“Properly understood, without Justices Ginsburg and Kagan participating, the decision of the U.S. Supreme Court in Obergefell actually was in favor of traditional marriage, by a vote of 4-3.

The second issue is the one of limitations in the decision.

“A careful reading of the holding of the Kennedy opinion reveals that the right to marry recognized by the Supreme Court is not at all what has been assumed,” the lawyers said. “Kennedy pronounced that ‘the state laws challenged [by the same-sex couple] petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

But then he talked about the states’ counterclaim.

Kennedy said he was moving forward but observed that the cases affected only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.

“In light of the Justice Kennedy’s own words, there is no doubt that the court acknowledged that the absence of any ‘risk of harm’ to either the two persons in the marriage or to third parties is an important predicate for its decision. Indeed, the court’s own due process and equal protection jurisprudence allows for discriminatory treatment of enjoyment even of a fundamental right based upon whether the right would be subjected to strict scrutiny, to determine if there might be a legitimate overriding governmental interest to deny access to that right.

“Significantly, the court did not engage in any such inquiry in the four cases before it because of the lack of a foundation showing ‘harmful outcomes’ should same-sex marriage be permitted. Thus, Justice Kennedy limited the court’s holding to those cases that involve no risk of harm to the married couple or to third parties.”

But the lawyers say there have been many “harmful outcomes” already documented. In fact, some state officials already have been ordered to violate their own religious faith or lose their job over the issue, as just one example.

They ask people to contact Michigan Attorney General Bill Schuete at (517) 373-1110, Ohio Attorney General Mike DeWine at (800) 282-0515, Tennessee Attorney General Herbert H. Slatery III at (615) 741-3491 or Kentucky Attorney General Jack Conway at (502) 696-5300.

As WND previously reported, Ginsburg performed same-sex wedding ceremonies and made supportive public statements while the case was going on and Kagan also has performed same-sex weddings and promoted “gay” rights at Harvard’s law school while she was at its helm.

A brief from the Foundation for Moral Law, explained that Canon 3A(6) of the Code of Conduct for United States Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The foundation pointed out in a submission to the Supreme Court: “Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: ‘I think it’s doubtful that it wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous … It would not take a large adjustment.'”

Ginsburg’s interview was with Bloomberg News on Feb. 12.


Elena Kagan

The motion said the “extrajudicial comments about a matter pending before the court violate Canon 3A(6) of the Code of Conduct for United States judges: ‘A judge should not make public comment on the merits of a matter pending or impending in any court.'”

The controversy resurfaced later, because even after being told of the appearance of a conflict of interest, Ginsburg again officiated at a same-sex wedding, as the New York Times reported.

The paper said that with “a sly look and special emphasis on the word ‘Constitution,’ Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.”

Col. John Eisdmoe, also of the Foundation for Moral Law, told WND earlier that the pro-“gay” bias exhibited by Ginsburg and Kagan ultimately will leave a cloud over their ruling.

“The decision will forever be open to question of whether it was an honest and fair decision of the court or was controlled by their personal viewpoints on the issue,” he told WND earlier.

Eidsmoe is a lecturer at colleges and universities and a constitutional attorney with a successful litigation record in religious freedom cases. He holds five degrees in law, theology and political science, including two doctorates, and he’s written numerous books, including “Christianity and the Constitution.”

WND has reported multiple groups have urged Ginsburg and Kagan to recuse themselves from the marriage case.


Ruth Ginsburg

Joining in the call for Kagan and Ginsburg to be removed from the case were hundreds of members of the Rabbinical Alliance of America.

“We join many other[s] who are appalled and deeply ashamed” that Ginsburg and Kagan “have still not had the grace, or decency to adhere to the U.S. code which calls upon a justice to ‘Disqualify himself in any proceeding in which his impartiality might reasonably be questioned,'” their statement said.

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.

See Ginsburg’s comments:


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