When the U.S. Supreme Court takes up marriage equality, many court watchers are predicting a split decision, with the court’s four liberal justices ruling for equal marriage rights, the four conservatives against, and Justice Anthony Kennedy as the swing vote who’ll make the difference. But now one of the nation’s leading antigay hate groups wants two of the liberals to take themselves out of the mix.
The American Family Association says Justices Ruth Bader Ginsburg and Elena Kagan should recuse themselves from hearing the marriage case the court has accepted because both have officiated same-sex marriage ceremonies.
“Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA president Tim Wildmon in a press release issued Friday. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it.” The organization is urging its supporters to write their members of Congress, demanding that the elected officials demand the justices’ recusal.
However, not only are Ginsburg and Kagan unlikely to recuse themselves, there’s no legal reason they should, several observers note. “Supreme Court justices are not bound by any rule or law to recuse themselves, although many have at different times, including Justice Kagan, out of a sense of propriety and duty,” David Badash wrote today at The New Civil Rights Movement. He also pointed out, “Justices Antonin Scalia and Clarence Thomas, at the very least, have made quite clear how they will rule on same-sex marriage, so by Wildmon’s reasoning, as flawed as it is, they should recuse themselves as well.”
Buzzfeed journalist Chris Geidner tweeted, “To be clear, the claim that [Ginsburg and Kagan] should recuse themselves is absurd and will go nowhere and a political move, not a legal one.” Good as You blogger Jeremy Hooper added via Twitter, “If the American Family Ass. is unsuccessful at getting Kagan & Ginsburg to recuse, I hear Plan B is to pull the fire alarm during the hearing.” See their tweets and others below.
The high court announced Friday that it will hear a consolidated case out of the U.S. Court of Appeals for the Sixth Circuit, involving marriage bans in Michigan, Ohio, Kentucky, and Tennessee. The Sixth Circuit is the only federal appeals court that has upheld bans. A date for oral arguments has not been announced, although SCOTUSblog reports that an April hearing is likely. The court has asked for briefs in the case to be filed by February 27.
To be clear, the claim that they should recuse themselves is absurd and will go nowhere and a political move, not a legal one.
— Chris Geidner (@chrisgeidner) January 19, 2015
If the American Family Ass. is unsuccessful at getting Kagan & Ginsburg to recuse,I hear Plan B is to pull the fire alarm during the hearing
— Jeremy Hooper (@goodasyou) January 19, 2015
— Clint Martin (@clint015) January 16, 2015